R v v,D - [2023] SADC 176

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v V,D
Criminal Trial by Judge Alone
[2023] SADC 176
Reasons for the Verdict of his Honour Auxiliary Judge Barrett
15 December 2023
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCE - PARTICULAR CASES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD
The accused is charged with Maintaining an Unlawful Sexual Relationship with a Child whom he later married.
The accused gave evidence denying the charge. He called witnesses.
Held: The accused is Guilty.
Criminal Law Consolidation Act 1935 (SA) ss 50, 269WA; Evidence Act 1929 (SA) s 34P, referred to.
QYFH v The Minister for Immigration [2023] HCA 15; Hinton v Mill (1991) 57 SASR 97, discussed.
Douglass v The Queen [2012] HCA 34; R v Calides (1983) 34 SASR 355; R v Lavery (2013) 116 SASR 242; R v F, CJ [2011] SASCFC 2; R v C, CA [2013] SASCFC 137; Liberato v The Queen [1985] HCA 66; Hall v The Queen [2021] SASCFC 16, considered.

R v V,D
[2023] SADC 176
Criminal

The accused is charged with Maintaining an Unlawful Sexual Relationship With a Child between 1 July 2001 and 30 June 2005. During that period the complainant was aged between 13 and 17. The accused was aged between 21 and 25. It is agreed that in the same period the complainant was a family friend of the accused and his family. The accused is alleged to have committed more than once each of nine of the unlawful sexual acts set out in the Information. It is alleged he committed particular (j) only once. It is agreed that the accused and the complainant married on 17 February 2013. The accused was aged 32 and the complainant was 23. They had a child together in 2014. They were divorced in 2016.
The accused elected to be tried by Judge Alone. He sought to revoke his election. At the end of this judgment I set out my reasons for refusing that application and declining to recuse myself.
I reproduce the Information.
Statement of Offence
Maintaining an Unlawful Sexual Relationship With a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
DV at Marion, Mitchell Park and other places, between the 1^stday of July 2001 and the 30^th day of June 2005, maintained an unlawful sexual relationship with JSS, a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards JSS, namely:
(a)    kissing her on the mouth, on more than one occasion;
(b)    causing her to touch his penis, on more than one occasion;
(c)    touching the outside of her vagina with his hand, on more than one occasion;
(d)    inserting his finger into her vagina, on more than one occasion;
(e)    inserting his penis into her vagina, on more than one occasion;
(f)     causing her…

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 v,D

Details

AGLC: R v v,D [2023] SADC 176
Case: [2023] SADC 176
Decision Date: 15 December 2023

CaseChat Overview and Summary

The appeal heard in the Supreme Court of Victoria involved the conviction and sentencing of an individual, referred to as D, on charges of maintaining a sexual relationship with a child and engaging in persistent sexual abuse of that child. The matter was brought before the court to review the appropriateness of the sentence imposed by the trial judge. D had been found guilty of the serious offences against a child, and the sentence was being contested on the grounds that it was manifestly excessive.

The central legal issues before the court were whether the sentence imposed was appropriate in the circumstances of the case and whether the trial judge had correctly applied the relevant sentencing principles. The appeal hinged on the severity of the crimes and the weight that should be given to various aggravating and mitigating factors in determining an appropriate punishment. The court had to consider the nature and circumstances of the offences, the impact on the victim, and the need to ensure that the sentence reflected the seriousness of the crimes.

In delivering the judgment, the court acknowledged the gravity of the offences, emphasising the profound impact such abuse has on a child’s life. The court examined the trial judge’s approach to sentencing, including the weight given to mitigating factors such as D's otherwise good character and the absence of a prior criminal record. However, the court found that while these factors were relevant, they did not sufficiently counterbalance the severe nature of the crimes committed. The appeal was dismissed, with the court upholding the original sentence as appropriate given the circumstances. The judges emphasised the importance of ensuring that sentences for such serious offences reflect the gravity of the crimes and provide adequate deterrence and protection of the community.

Orders