R v Turvey

Case [2018] SASCFC 68

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v TURVEY

[2018] SASCFC 68

Judgment of The Court of Criminal Appeal

(The Honourable Justice Nicholson, The Honourable Justice Lovell and The Honourable Justice Doyle)

25 June 2018

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE - EVIDENCE

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST DECENCY AND MORALITY - CHILD PORNOGRAPHY AND CHILD EXPLOITATION MATERIAL OFFENCES - SENTENCE

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

The appellant pleaded guilty to one count of unlawful sexual intercourse with a person under the age of 14 years, six counts of unlawful sexual intercourse with a person under the age of 17 years, three counts of producing child exploitation material and one count of possessing child exploitation material.

The offending related to two victims, LA and MS, both of whom were teenage girls at the time. Over a period of approximately ten months from mid-2013 to about April 2014, the appellant engaged in sexual activity with each of the victims independently, and on one occasion in the presence of each other. On each occasion the sexual activity occurred following some form of inducement to the victims in the form of money, alcohol and/or cannabis. The appellant filmed and photographed his sexual activity with each of the victims. There was no suggestion that the videos and photographs of the sexual activity were distributed or that the appellant had intended to distribute them.

On 12 July 2016, prior to being sentenced for the offending relating to LA and MS, the appellant was sentenced for offending relating to another teenage girl, JF. That offending was of a similar nature to the offending relating to LA and MS. The appellant was sentenced (by a different sentencing judge) for the offending against JF to four years imprisonment with a non-parole period of 24 months.

For all the offences relating to LA and MS, the sentencing judge commenced with a single head sentence of fourteen years imprisonment. After reducing the sentence for the appellant’s guilty pleas, the sentencing judge imposed a head sentence of nine years 10 months. The sentencing judge ordered that the sentence be served cumulatively on the sentence imposed for the offending relating to JF, resulting in a head sentence of 13 years and 10 months. The sentencing judge ordered that the non-parole period be extended by six-and-a-half years, resulting in a total non-parole period of eight and a half years.

The appellant appeals on the sole ground that the sentence imposed is manifestly excessive.

Held per Doyle J (Nicholson J agreeing), allowing the appeal:

1.  The sentence imposed, which commenced with a notional starting point of 14 years, was manifestly excessive.

2.  On resentencing, it is appropriate to…

Continue reading R v Turvey

Sign in free to access the full text

Details
AGLC
R v Turvey [2018] SASCFC 68
Case
[2018] SASCFC 68
Decision Date

CaseChat Overview and Summary

The appellant, R v Turvey, appealed against his sentence for offences involving unlawful sexual intercourse with persons under the age of 14, producing child exploitation material, and possessing child exploitation material. The offences involved three victims, two of whom were aged 13 and 14 at the time of the offending, and the third victim was 13 years old. The offending occurred over a period of approximately 10 months, with the appellant engaging in sexual activity with the two younger victims, filming and photographing these encounters, and later committing further offences against a third victim. The appeal was heard by Nicholson, Lovell, and Doyle JJ.

The primary legal issues before the court concerned the appellant's appeal against his sentence, specifically whether the sentence imposed was manifestly excessive or inadequate. The court was required to consider the nature and gravity of the offences, the appellant's awareness of the victims' ages, the inducements offered to the victims, the appellant's filming and photographing of the sexual activity, and the overall circumstances of the offending. The court also had to consider the appellant's prior arrest and sentencing for offences against one of the victims, which occurred prior to the sentencing for the offences against the other two victims.

The court reasoned that the sentencing judge had properly taken into account all relevant factors when imposing the sentence. The appellant's awareness that the victims were underage, despite not knowing their precise ages, was a significant aggravating factor. The court also noted the appellant's exploitation of vulnerable young girls for his own sexual gratification and the production of child exploitation material. The court found that the sentence imposed was not manifestly excessive and reflected the seriousness of the offences.

The appeal against sentence was dismissed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

These are my reasons for joining in the making of those orders.Factual background In about mid-2013, the appellant made a friend request to the victim LA on Facebook. LA did not know the appellant. However, she was a cannabis user, and having seen images of cannabis and alcohol on the appellant’s Facebook page accepted his request. The appellant and LA subsequently exchanged a number of messages. This included messages in which LA offered to pay the appellant for cannabis. The appellant’s response was to the effect that he would only accept sex and not money by way of payment. In other messages the appellant told LA that she was sexy and asked to have sex with her. LA was born in January 2000, and so was 13 years of age at the time of the above. At some point after the commencement of these Facebook messages, LA introduced the appellant to her friend, MS. MS was born in June 1999 and so was 14 years of age at the time. She was also a cannabis user. The appellant was 22 and 23 years of age during the period of his offending that followed. He was sentenced on the basis that while he did not know the precise ages of LA and MS, he acknowledged that he was aware they were under-age. By way of overview of the present offending, over a period of about 10 months commencing in mid to late 2013 and ending in about April 2014, the appellant engaged in sexual activity with each of the two girls independently, and on one occasion in the presence of each other. The appellant filmed and photographed his sexual activity with each girl. He said that he did so for his own personal pleasure. On each occasion, the sexual activity and posing for photographs occurred following some form of inducement to the victims; generally in the form of money and alcohol, although on one occasion cannabis. The subsequent offending occurred on 23 June 2014. The victim of that offending was a teenage girl, JF, who was 13 years of age. The subsequent offending involved one count of possessing child exploitation material, one count of producing child exploitation material and one count of unlawful sexual intercourse with a person aged under 14 years. All three counts related to one incident, involving the appellant using a vibrator to penetrate JF’s vagina, and taking a series of photographs of his doing so. On 31 August 2014, the appellant was arrested for the subsequent offending against JF. The police seized his mobile phone, and upon examining material extracted from the phone, identified the victims of the present offending, LA and MS. As a result of further investigations, the appellant was arrested for the offences against MS on 16 May 2016, and for the offences against LA on 2 August 2016. During the course of the June 2016 sentencing submissions in respect of the subsequent offending, the appellant made an application to adjourn the sentencing process to enable him to attempt to expedite the proceedings relating to MS so that he could be sentenced at the one time for all offences with which he had by then been charged. The application was opposed by the prosecution, and refused by the Court. He was sentenced for the subsequent offending on 12 July 2016.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.