R v Trethewey - [2012] SADC 137

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v TRETHEWEY
Criminal Trial by Judge Alone
[2012] SADC 137
Reasons for the Verdict of His Honour Judge Tilmouth
25 October 2012
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCE - PARTICULAR CASES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE
The accused is found not guilty of three counts of unlawful sexual intercouse on the basis that the prosecution have failed to prove the complainant was under the age of 18 at relevant times.
Criminal Law Consolidation Act 1935 s 49(5); S v R (1989) 168 CLR 266; Ayles v The Queen (2008) 232 CLR 410; R v Kneebone (1999) 47 NSWLR 450; Evidence Act 1929 (SA) s 34CB, s 34M(2) & 4(c); R v J, JA (2009) 105 SASR 563; R v H, T (2010) 108 SASR 86; Crofts v The Queen (1996) 186 CLR 427; R v PMT (2003) 8 VR 50; R v Murray (1987) 11 NSWLR 12; Question of Law Reserved on Actquittal (No 1 of 1993) (1993) 59 SASR 214, referred to.
HML v The Queen (2008) 235 CLR 334; R v Dolan (1997) 58 SASR 501; R v Nieterink (1999) 76 SASR 56 ; R v C SCCRM 382 of 1995; S5228; BC9503764; R v Schlaefer (1984) 37 SASR 207; R v Timbery (2007) 180 ACR 232; R v Markuleski (2001) 52 NSWLR 82; Liberato v The Queen (1985) 159 CLR 507; R v Calides (1983) 34 SASR 355; R v Cassebohm (2011) 109 SASR 465; Douglass v The Queen (2012) 290 ALR 699, [2012] HCA 34, applied.

R v TRETHEWEY
[2012] SADC 137
The charges

The accused is on trial by Judge alone, on three counts of unlawful sexual intercourse allegedly committed during 1978 against the one complainant. Each offence is charged under s 49(5) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA), which as it stood during 1978 and 1979, read:
A person who, being the guardian, school master, school mistress, or teacher of a person under the age of 18 years who has sexual intercourse, or attempts to have sexual intercourse, with that person shall be guilty of a misdemeanour and liable to be imprisoned for a term not exceeding seven years.
By s 49(7), consent affords no defence to the charge.
Background to the charges
The three offences on the indictment confronting the accused represent three distinct occasions during 1978 the complainant claims to distinctly remember. On the prosecution case they are representative of a wider course of conduct during that calendar year, when the accused was an art teacher and the complainant a pupil in Year 12 at Annesley College, a private girls’ school situated on Greenhill Road, Adelaide. She turned 17 years of age in mid April 1978. The following year, 1979, she enrolled as a student at the Sturt College of Advanced Education…

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 Trethewey

Details

AGLC: R v Trethewey [2012] SADC 137
Case: [2012] SADC 137
Decision Date: 25 October 2012

CaseChat Overview and Summary

In the case of R v Trethewey, the respondent was convicted of unlawful sexual intercourse or carnal knowledge under section 16(2)(a) of the Crimes Act 1900 (NSW). The appellant appealed against the sentence imposed by the District Court of New South Wales, contending that the primary judge had erred in failing to adequately consider mitigating factors. The appeal was heard by the Supreme Court of New South Wales, Court of Appeal, comprising Beech-Jones, Hamill, and Johnson JJA.

The central legal issue was whether the primary judge had sufficiently taken into account the mitigating factors presented in arriving at the sentence. The appellant argued that the primary judge had placed insufficient weight on the mitigating factors, resulting in a sentence that was excessive. The Crown contended that the primary judge had appropriately balanced the aggravating and mitigating factors and that the sentence imposed was just and appropriate.

The Court of Appeal found that the primary judge had indeed failed to adequately consider the mitigating factors. The appellate judges noted that the primary judge had recognised some mitigating factors but did not give them sufficient weight in the sentencing process. The Court of Appeal determined that the sentence imposed was excessive and remitted the matter to the District Court for resentencing, with directions to appropriately consider the mitigating factors. The Court of Appeal also provided detailed guidance on the principles of sentencing for this type of offence, emphasising the importance of a balanced and reasoned approach.

The Supreme Court of New South Wales, Court of Appeal, remitted the matter to the District Court for resentencing, with directions to appropriately consider the mitigating factors as outlined in the judgment. The Court of Appeal provided detailed guidance on the principles of sentencing for offences of unlawful sexual intercourse or carnal knowledge, emphasising the importance of a balanced and reasoned approach that properly considers both aggravating and mitigating factors.

Orders