R v Trimper - [2006] SASC 304

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v TRIMPER
[2006] SASC 304
Judgment of The Court of Criminal Appeal
(The Honourable Justice Sulan, The Honourable Justice Layton and The Honourable Justice David)
29 September 2006
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - MISCELLANEOUS MATTERS - ABNORMAL MENTAL CONDITION
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - CIRCUMSTANCES OF OFFENDER
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE
Appellant pleaded guilty to one count of indecent assault and one count of unlawful sexual intercourse - Sentenced to three years and nine months imprisonment, with non-parole period of 18 months - Appeal against sentence - Whether sentencing Judge failed to appropriately determine the impact of the appellant's low intellectual functioning and childhood abuse on his criminal conduct and to give sufficient weight to those factors in sentencing - Held: No error in sentencing - Judge implicitly had regard to relevant matters - Appeal dismissed.
R v Gommers [2005] SASC 493; R v Engert (1995) 84 A Crim R 67; R v Wiskich (2000) 207 LSJS 431, considered.

R v TRIMPER
[2006] SASC 304
Court of Criminal Appeal: Sulan, Layton and David JJ

SULAN J: I would dismiss the appeal. I agree with the reasons of Layton J.
LAYTON J:
Introduction
This is an appeal against sentence on the grounds that it was manifestly excessive. There are two bases put forward for this appeal; first, that the starting point of the head sentence was too high; and secondly that the sentencing Judge erred in not suspending the sentence.
The appellant pleaded guilty to one count of indecent assault and one count of unlawful sexual intercourse, which occurred in the period between December 1997 and January 1998. The appellant was then a 35-year-old man and his victim was a 10 year old relative.
On the first count the appellant grabbed hold of the victim’s hand, put it on his penis and told her to squeeze his penis, before ejaculating on her. On the second count, the appellant forced the victim onto her stomach and inserted his penis into her anus. The victim found this painful, and she struggled to get free for some minutes until she managed to free herself and runoff.
The sentencing Judge began by fixing a single sentence of five years imprisonment, which was reduced to three years and nine months on account of the early guilty plea. The sentencing Judge refused to suspend the sentence but instead fixed a non-parole of 18 months, which he described as “somewhat lower than is usual”.
Appellant’s argument
Counsel’s argument for the appellant was the same in respect of both the head sentence and the failure to suspend the sentence. Specifically, it was submitted that the sentencing…

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 Trimper

Details

AGLC: R v Trimper [2006] SASC 304
Case: [2006] SASC 304
Decision Date: 29 September 2006

CaseChat Overview and Summary

The case of R v Trimper involved the appellant who had pleaded guilty to charges of indecent assault and unlawful sexual intercourse. Trimper was sentenced to three years and nine months imprisonment, with a non-parole period of 18 months. The appellant appealed against the sentence, contending that the sentencing Judge did not appropriately consider the impact of his low intellectual functioning and childhood abuse on his criminal conduct, and did not give sufficient weight to these factors in the sentencing. The central legal issue was whether the sentencing Judge failed to adequately account for these mitigating factors and thus erred in the sentence imposed.

The court examined the evidence and arguments presented, particularly the psychological report of Allen Fugler, which detailed Trimper's low intellectual capacity, limited understanding of his behaviour, and history of sexual abuse and dysfunction. The court noted that while the Judge did refer to these factors, the appellant's counsel argued that they were not given sufficient weight in the sentencing decision. However, the court found that the Judge implicitly took these matters into account in the sentencing process, and that there was no error in the Judge's approach. The court held that the Judge appropriately balanced the gravity of the offences with the mitigating factors, and thus the appeal against the sentence was dismissed.

In summary, the court upheld the original sentence, finding no merit in the appeal. The appellant's appeal against the sentence was dismissed, and the original sentence of three years and nine months imprisonment, with a non-parole period of 18 months, remained in place.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Counsel’s argument for the appellant was the same in respect of both the head sentence and the failure to suspend the sentence. Specifically, it was submitted that the sentencing Judge failed to link the appellant’s low intellectual functioning and childhood abuse, to the circumstances and the gravity of the offending by the appellant. It was acknowledged that the sentencing Judge referred to both of these elements in his sentencing process, however it was argued that the Judge failed to give sufficient weight to these combined factors in considering suspension. It was argued that the sentencing Judge appeared to treat these facts as the usual matters required to be taken into account in sentencing, rather than specifically addressing the extent to which these combined factors affected the moral culpability of the appellant. It was argued that this diminished culpability should be reflected in the sentence, and that in this case the sentence should have been suspended. Psychological evidence and history Reliance was placed on the report of Allen Fugler, a clinical forensic psychologist. Mr Fugler examined the appellant on two occasions over a period of four hours, and administered a number of psychological tests. The report contained a history of the appellant’s childhood and experiences, an assessment on his intellectual capacity and functioning, and an assessment of the appellant’s understanding and appreciation of his offending. A summary of relevant factors include the following: The appellant was raised on a rural holding. He was a shy and reclusive child and he was a bullied by his elder brothers. He was also bullied at school and left upon completing year eight. In addition he was sexually abused by his older brothers from the age of 11 years until he reached his thirties. He did not leave home until he was 38 years of age. After leaving school, he initially worked on the farm and then later worked as a fruit picker and packer. He ceased work after he sustained a head injury when working in a quarry and has been on a disability pension for many years. The appellant did not have any heterosexual contact until he was 38, which is at about the time when these offences were committed. He was in a relationship with a woman at that time and was experiencing some difficulties in that relationship. The report of Mr Fugler indicated that the appellant was operating at the bottom end of the Borderline Range, with an IQ of 70-79. He also has limited general knowledge with poor vocabulary and comprehension skills and has poorly developed organisational skills and concrete thinking. It was also said of the appellant that he is not psychologically minded and has limited understanding of the meaning of his behaviour. At the time of the offences, the appellant was living with the victim’s family. His older brother had already sexually abused the victim over a number of years previously. The conclusions of Mr Fugler were summarised as follows:[he] has a low level of intellectual functioning and has a limited understanding into the meaning of his behaviour. He has a history of sexual dysfunction, that having been apparent at the time of the instant offences when he had been involved in an adult heterosexual relationship. By his report he had been heavily criticised by his partner and had been feeling inadequate with respect to his inability to attain a good level of sexual performance. Sexually frustrated, he spontaneously became involved in deviant sexual behaviour with the victim, an 11-year-old child. It is relatively common for individuals who have had sexual acts perpetrated upon them as children to commit similar offences with victims of the same age. It is here that the long–term affects (sic) of the relationship with his brothers become relevant. Mr Trimper reported having enjoyed many of the ongoing aspects of the ongoing sexual interactions with his relatives, that being at least one way in which he could feel accepted. His sexual education was limited and his knowledge base restricted. It could well be your client re-enacted the sexual acts with the victim he himself had been involved in at the age of 11, in which had elements of pleasure, when frustrated and despondent.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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