R v V, AJ

Case [2012] SASCFC 10

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v V, AJ

[2012] SASCFC 10

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Doyle, The Honourable Justice Gray and The Honourable Justice Anderson)

2 March 2012

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - PRINCIPLES APPLIED BY APPELLATE COURT TO CROWN APPEALS

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - RESPONSE TO CHARGES - DELAY BETWEEN OFFENCE AND SENTENCE

Crown appeal against sentence - defendant pleaded guilty to offence of engaging in unlawful sexual intercourse - defendant had sexual intercourse with 14 year old niece - Judge imposed a head sentence of eight months imprisonment, suspended on defendant's entry into two year good behaviour bond, supervised for 12 months - where rehabilitation had occurred over the nine years between offence and sentence - whether the sentence imposed manifestly inadequate.

Held:  permission to appeal refused.

(Per Doyle CJ): limited weight to be attached to the delay between offence and sentence - head sentence and non-parole period too low - open to the Judge to suspend the sentence of imprisonment - appropriate in the circumstances to exercise discretion to refuse permission to appeal.

(Per Gray J): in the circumstances, the Judge was correct to treat the defendant’s rehabilitation over the period of nine years since the offence as mitigatory - sentence imposed within the Judge's discretion - not only was it open to the Judge to suspend the sentence of imprisonment, it was the appropriate order to be made.

(Per Anderson J): limited weight to be attached to the delay between offence and sentence - otherwise agree with Gray J.

Criminal Law Consolidation Act 1935 (SA) s 49(3) and s 340; Criminal Law (Sentencing) Act 1988 (SA), referred to.
R v Nemer (2003) 87 SASR 168; R v Osenkowski (1982) 30 SASR 212; Everett v The Queen (1994) 181 CLR 295; Malvaso v The Queen (1989) 168 CLR 227; Dinsdale v The Queen (2000) 202 CLR 321; R v Mangelsdorf (1995) 66 SASR 60; R v Elliott (2001) 121 A Crim R 254; R v Harkin (2011) 109 SASR 334; R v Abdulla (2011) 109 SASR 258 ; R v Suckling (1983) 33 SASR 133; Duncan v The Queen (1983) 9 A Crim R 354; R v Liang & Li (1995) 82 A Crim R 39; R v Law; Ex parte Attorney-General (Qld) [1996] 2 Qd R 63; R v Leggett [2000] WASCA 327; Thorn v Western Australia [2008] WASCA 36; R v Lekaj (1997) 92 A Crim R 325; Kernich v Director of Public Prosecutions (Cth) (1997) 68 SASR 454; R v Drewett (1983) 35 SASR 344; R v Brace [2011] SASCFC 54, considered.

R v V, AJ
[2012] SASCFC 10

Court of Criminal Appeal:  Doyle CJ, Gray and Anderson JJ

  1. DOYLE CJ:          I have read the reasons of Gray J.  I adopt his summary of…

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R v V, AJ [2012] SASCFC 10
Case
[2012] SASCFC 10
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CaseChat Overview and Summary

This case concerned a Crown appeal against a sentence imposed by a judge in the Supreme Court of South Australia. The respondent had pleaded guilty to engaging in unlawful sexual intercourse with his 14-year-old niece. The sentencing judge had imposed a head sentence of eight months imprisonment, which was suspended on the condition that the respondent enter into a two-year good behaviour bond, supervised for 12 months. The Crown argued that this sentence was manifestly inadequate, particularly given the nine-year delay between the commission of the offence and the sentencing, during which the respondent had reportedly undergone rehabilitation.

The central legal issue before the Full Court of the Supreme Court of South Australia was whether the sentence imposed was so inadequate as to warrant interference on a Crown appeal, and if so, how the court should exercise its discretion in re-sentencing. The court considered the principles governing Crown appeals against sentence, including the residual discretion of the appellate court to decline to interfere if an injustice would arise. The court noted that while legislation prevented consideration of distress and anxiety arising from double jeopardy, a residual discretion remained.

The court reasoned that an appellate court might intervene if the inadequacy of a sentence was so marked as to be an "affront to the administration of justice" and risked undermining public confidence. However, the court found that this was not such a case. The court also considered the significance of the passage of time between the offence and the sentence, and the respondent's compliance with the terms of his good behaviour bond, including community service. The court acknowledged that delay, the respondent's release on parole or unconditionally, and the effect of re-sentencing on rehabilitation were relevant to the exercise of its residual discretion.

Ultimately, the court refused permission to appeal. The judges agreed that the residual discretion to refuse to interfere with the sentence had been enlivened, particularly given the time that had passed since the offence and the respondent's apparent rehabilitation and compliance with the terms of his bond. The court concluded that allowing the appeal would not be in the interests of justice.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

ANDERSON J
Earlier in these reasons I referred to the observations of French CJ, Crennan and Kiefel JJ in Green. Even if permission were to be granted, I consider that the residual discretion may well have been enlivened. The defendant has been the subject of a supervised good behaviour bond for over three months. By the terms of his bond, he has agreed to undertake 100 hours of community service within 12 months. There is no suggestion that the defendant has done other than comply with the terms of his bond. There is no reason to doubt that he has continued as a law abiding citizen in employment and as a caring provider for his family. Conclusion I would refuse permission to appeal. I agree that permission to appeal should be refused. I generally agree with the reasons of Gray J for refusing permission but I agree with Doyle CJ as to the significance of the passage of time between the offence and the plea of guilty.

Ratio Decidendi

Legal Principle Established

Established by: ANDERSON J

Two matters are to be noted for present purposes. The Court confirmed that an appeal court retained a residual discretion; that is, that the court might decline to interfere if an injustice were to arise through allowing a Crown appeal. The Court considered that the legislation prevented an appellate court from having regard to such distress and anxiety that might arise through double jeopardy. However the Court confirmed that otherwise a residual discretion remained. French CJ, Crennan and Kiefel JJ in this respect observed:[13]A case might arise in which the Court of Criminal Appeal concludes that the inadequacy of the sentence appealed from is so marked that it amounts to "an affront to the administration of justice" which risks undermining public confidence in the criminal justice system. In such a case the Court would be justified in interfering with the sentence notwithstanding the resultant disparity with an unchallenged sentence imposed on a co-offender. That, however, is not this case. While all the members of the Court of Criminal Appeal considered that the sentences imposed upon Quinn and Green were "manifestly inadequate" there was no suggestion that they were so inadequate as to displace other considerations and mandate the Court's intervention. Moreover, in this case the primary judge took Taylor's unchallenged sentence into account in applying the parity principle to the sentences under appeal. Notwithstanding the leniency of Taylor's sentence, the prospective creation of disparity was a factor militating against allowing the appeal. That the Crown, in submissions before the Court of Criminal Appeal, did not attack the sufficiency of the sentence imposed on Taylor, gave that prospective disparity greater weight in the circumstances.Other circumstances may combine to produce injustice if a Crown appeal is allowed. They include delay in the hearing and determination of the appeal, the imminent or past occurrence of the respondent's release on parole or unconditionally, and the effect of re-sentencing on progress towards the respondent's rehabilitation. They are relevant to the exercise of the residual discretion. The guidance afforded to sentencing judges by allowing the appeal should not come at too high a cost in terms of justice to the individual.The preceding matters are relevant to the exercise of the Court's residual discretion not to allow a Crown appeal. Also relevant is the extent to which disparity between co-offenders is able to be mitigated in the exercise of the re-sentencing discretion.If the Court does decide to allow an appeal under s 5D it will, in exercising its re-sentencing discretion, have regard to the matters to which it must have regard by virtue of ss 3A and 21A of the Sentencing Act. The parity principle will require the Court, if it is possible to do so, to avoid or minimise unjustified disparity between the sentence it imposes and the sentence which has been imposed on a co-offender. In so doing, the Court, like the primary judge, must have regard to differences between the person being re-sentenced and the co-offender which justify differences in the sentences imposed.[Footnotes omitted.]It is to be recalled that this residual discretion only arises when the Court is re-sentencing, as double jeopardy remains a relevant consideration when the court is considering the question of a grant of permission to appeal. [13] Green v The Queen (2011) 86 ALJR 36, [42]-[45].Consideration of the Issues Arising