SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL
Case Title:
R v Summerfield
Citation:
[2018] ACTCA 20
Hearing Date:
8 May 2018
DecisionDate:
1 June 2018
Before:
Burns, Loukas-Karlsson and Bromwich JJ
Decision:
1. The appeal be allowed in part in that:
(a) the commencement date for the sentence on charge case 4449 of 2017 be set aside;
(b) the commencement date for the sentence on charge case 4229 of 2017 be set aside; and
(c) the sentence on charge case 4230 of 2017 be set aside;
and, in lieu thereof, the following sentences be imposed:
(d) in respect of charge case 4449 of 2017, the respondent be sentenced to six months’ imprisonment to commence on 5 September 2017 and to expire on 4 March 2018;
(e) in respect of charge case 4229 of 2017, the respondent be sentenced to 12 months’ imprisonment to commence on 5 March 2018 and to expire on 4 March 2019; and
(f) in respect of charge case 4230 of 2017, the respondent be sentenced to two years’ imprisonment to commence on 5 June 2018 and to expire on 4 June 2020.
2. The non-parole period be set aside and, in lieu thereof, a non-parole period of 18 months be fixed, to commence on 5 June 2017 and to conclude on 4 December 2018.
Catchwords:
CRIMINAL LAW – Crown appeal against sentences imposed for five offences of sexual intercourse with a person aged between 10 and 16 years of age – two female child victims of 13 and 15 years of age – whether primary judge erred in finding, as a matter of mitigation, that the offender was engaged in a “genuine, if immature, relationship” with the victims – whether primary judge erred in characterising the offending against the 13-year-old victim as at the “mid-range of objective seriousness” – whether sentencing outcome was erroneous as the individual sentences were manifestly inadequate – whether sentencing outcome was erroneous as the accumulation between counts was manifestly inadequate – whether sentencing outcome was erroneous as the overall head sentence and non-parole period were manifestly inadequate
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
R v Summerfield [2018] ACTCA 20
Case
[2018] ACTCA 20
Decision Date
CaseChat Overview and Summary
The Crown appealed against the sentences imposed on the respondent, R v Summerfield, for five offences of sexual intercourse with a person aged between 10 and 16 years. The victims were two females, aged 13 and 15 years. The appeal concerned whether the primary judge erred in finding, as a mitigating factor, that the offender was engaged in a "genuine, if immature, relationship" with the victims, and whether the offending against the 13-year-old was correctly characterised as at the "mid-range of objective seriousness". The Crown also argued that the individual sentences, the accumulation between counts, and the overall head sentence and non-parole period were manifestly inadequate. The appeal was heard by Burns, Loukas-Karlsson, and Bromwich JJ.
The Court of Appeal was required to determine whether the sentencing judge made errors in assessing the mitigating circumstances and the objective seriousness of the offences, leading to sentences that were manifestly inadequate. Specifically, the court had to consider the weight to be given to the offender's perceived relationship with the child victims and the appropriate classification of the offending's seriousness. The ultimate question was whether the sentencing outcome, viewed holistically, represented an error of law due to its inadequacy.
The Court allowed the appeal in part. It set aside the commencement dates for sentences on two charges and the sentence on a third charge. In lieu thereof, the court imposed new sentences: six months' imprisonment for one offence, 12 months' imprisonment for another, and two years' imprisonment for a third. Furthermore, the non-parole period was set aside and replaced with a new non-parole period of 18 months.
Orders
Orders of the court
1. The appeal be allowed in part in that:
(a) the commencement date for the sentence on charge case 4449 of 2017 be set aside;
(b) the commencement date for the sentence on charge case 4229 of 2017 be set aside; and
(c) the sentence on charge case 4230 of 2017 be set aside;
and, in lieu thereof, the following sentences be imposed:
(d) in respect of charge case 4449 of 2017, the respondent be sentenced to six months’ imprisonment to commence on 5 September 2017 and to expire on 4 March 2018;
(e) in respect of charge case 4229 of 2017, the respondent be sentenced to 12 months’ imprisonment to commence on 5 March 2018 and to expire on 4 March 2019; and
(f) in respect of charge case 4230 of 2017, the respondent be sentenced to two years’ imprisonment to commence on 5 June 2018 and to expire on 4 June 2020.
2. The non-parole period be set aside and, in lieu thereof, a non-parole period of 18 months be fixed, to commence on 5 June 2017 and to conclude on 4 December 2018.