R v Temby - [2003] SASC 230

R v TEMBY
[2003] SASC 230
Court of Criminal Appeal: Debelle, Gray and Sulan JJ

DEBELLE J This is an appeal against sentence.
The appellant pleaded guilty to two counts of unlawful sexual intercourse with a young woman aged 15 years. The first involved vaginal sexual intercourse and the second anal sexual intercourse. He also pleaded guilty to two counts of common assault of the same young woman. One sentence was ordered in respect of all of the offending. The appellant was sentenced to imprisonment for a period of 35 months with a non-parole period of 12 months.
There are two grounds of appeal. The first is that the judge erred in not suspending the sentence. The second is that the sentence is manifestly excessive.
The sexual misconduct is quite atypical of the usual kind of offending. The first offence occurred on 4 November 2001; the second on 27 April 2002. At the time of the first offence the appellant was aged 22 years and the complainant was aged some 15 years and 5 months.
The appellant lived and worked in a country town. He was a member of a number of local clubs including a football club. At the football club he became acquainted with the complainant’s mother. She lived with her husband, the complainant and another child in the town. From about August 2001 the complainant’s mother invited the appellant to the family home for meals. The appellant became a friend of the family. He soon began to stay overnight at the house sleeping in a separate bed in the same bedroom in which the complainant also slept. He became attracted to the complainant and she to him.
In late September a relationship between them began to develop that was noted by the complainant’s mother. The appellant initially had reservations about this developing friendship because he knew that the complainant was aged 15 years. The complainant’s mother did not discourage the friendship. The appellant and the complainant spoke to her mother about having sexual intercourse. The complainant’s mother said that she had no objection provided that sexual relations were completely consensual. The appellant and complainant embarked on a consensual sexual relationship. The first act of sexual intercourse occurred on 4 November 2001, the date of the first count. As I have said, the complainant was then aged about 15 years and 5 months.
At about that time the appellant went to live with the complainant’s family. Thereafter, the appellant and the complainant engaged in a robust relationship of sexual intercourse. According to the complainant, intercourse occurred nearly every night. Notwithstanding the declarations made by the father, it is difficult to accept that he was unaware of this conduct. He did not object to it.
The first count is representative of the repeated offences. The second count relates to one occasion when the parties engaged in consensual anal intercourse.
In February 2002, the complainant’s mother and father separated. The appellant continued to live in the household and continued the…

Grounds of appeal

[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.

Continue reading R v Temby

Details

AGLC: R v Temby [2003] SASC 230
Case: [2003] SASC 230
Decision Date: 24 July 2003

CaseChat Overview and Summary

This case involves an appeal against sentence, where the appellant, Temby, pleaded guilty to two counts of unlawful sexual intercourse with a 15-year-old girl, as well as two counts of common assault of the same complainant. The court was asked to consider whether the sentence was appropriate, and if it should have been suspended. The appellant was sentenced to imprisonment for 35 months, with a non-parole period of 12 months. The court found that the sentencing judge had erred in not suspending the sentence and found the sentence to be manifestly excessive.

The primary legal issues in this case were whether the sentence should have been suspended, and whether the sentence was manifestly excessive. The court considered the particular circumstances of the case, including the consensual nature of the sexual relationship, the age difference between the parties, and the appellant's good character. The court also examined the principles governing suspended sentences, and the need for general and personal deterrence in this case.

The court found that the sentencing judge had misapplied the principles relating to suspended sentences and had given undue emphasis to deterrence, at the expense of rehabilitation. The court also found that the sentence was manifestly excessive, as the nature of the offending was atypical, and the appellant was unlikely to reoffend. The court ordered a sentence of six months imprisonment, reduced to 17 weeks and one day, taking into account the appellant's good character and the unusual circumstances of the case.

In conclusion, the Court of Criminal Appeal allowed the appeal against sentence. The original sentence was set aside, and the appellant was sentenced to a period of imprisonment of 17 weeks and one day, with immediate release due to time already served.

Orders