R v Van Gelder No. Sccrm-02-333 - [2003] SASC 98

R v VAN GELDER
[2003] SASC 98
Court of Criminal Appeal: Perry, Nyland and Bleby JJ

PERRY J. The appellant appealed by leave against the sentence imposed upon him following his conviction after a trial before a judge and jury in the District Court on four counts of rape. At the conclusion of the hearing of the appeal, the Court announced that it was unanimously of the view that the appeal should be dismissed. It reserved the right to publish reasons later.
The offences occurred over a period of about 14 months. The counts were representative counts, in that over much of that time the appellant committed acts of rape on an almost daily basis upon the victim, a young girl aged between 12 and 13 years.
After allowing for two months already spent in custody, the sentencing judge imposed a sentence of imprisonment for 13 years and 10 months with a non-parole period of 9 years. It is from that sentence that the appeal is brought.
The offences took place at a house near Kapunda at which the appellant lived in a de facto relationship with the victim’s mother. At the time of the commission of the first of the offences the appellant was aged 31 years.
On each of the occasions when the offences took place, the appellant entered the bedroom of the victim and forced himself upon her. The offences took the form of vaginal sexual intercourse and were frequently accompanied by indecent touching of the breasts and vagina. On all occasions the victim was restrained by force applied by the appellant.
The appellant has a history of relatively minor offending dating from 1985. It is noteworthy that in 1995 he was sentenced in the Elizabeth Magistrates Court on a charge of indecent assault, for which he received a suspended sentence of 8 months imprisonment.
The sentencing judge had the benefit of a pre-sentence report and a report prepared by a psychologist, Dr Bell.
It appears from the pre-sentence report that the appellant had an unfortunate childhood marked by sexual abuse at the hands of his step-father. Since the age of 16 years he has received a disability support pension on the grounds of intellectual disability. He has never been in regular employment, and has only ever undertaken seasonal casual work in the country.
When examined by Dr Bell, the appellant maintained his innocence. Dr Bell found that the appellant had a limited level of intellectual functioning in the mildly intellectually disabled range. He thought that the appellant might benefit from the sexual offender treatment and assessment program. However, he thought that his ongoing denial of the offending may be an impediment to his rehabilitation.
The victim furnished a victim impact statement in which she describes her fear of the appellant, and that she did not know what to do when he began assaulting her. She now gets angry quickly and has nightmares and flashbacks about what happened. Her schooling is unsettled and she is having ongoing…

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.

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Details

Case: [2003] SASC 98
Decision Date: 28 March 2003

CaseChat Overview and Summary

In the case of R v Van Gelder No. Sccrm-02-333, the appellant, Van Gelder, was convicted of serious offences against a young girl, including acts of abuse over an extended period. The appeal against his conviction and sentence was heard and dismissed by the Supreme Court of South Australia. The court had to decide whether the sentencing judge had erred in imposing the sentence, and if the appeal should be upheld on the basis of any identified errors.

The central legal issues revolved around the appropriate exercise of sentencing discretion by the trial judge and whether the sentence imposed was excessive or unjust. The appeal court examined the severity of the crimes, the lack of mitigating factors, and the appellant’s persistent denial of guilt. The court also considered the impact on the victim and the appellant’s position of trust.

The Supreme Court of South Australia, in dismissing the appeal, held that the sentence imposed by the trial judge was well within the proper exercise of sentencing discretion. The court emphasised the gravity of the crimes, the absence of significant mitigating factors, and the appellant's refusal to acknowledge his guilt. The appeal court found no error in the trial judge's approach and upheld the sentence. The judges concurred that the sentence was appropriate given the nature and impact of the crimes.

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

PERRY J NYLAND J BLEBY J

He should nonetheless be encourage to undertake some such program. He will have ample opportunity to do so over the period of almost 5 years during which he will be on parole.Conclusion This was a serious case which involved a long course of abuse of a young girl. There are seriously aggravating features. The appellant’s conduct was a gross abuse of the position of trust which he held as a de facto parent. His conduct has had a disastrous effect on the victim. There is, as Mr Millsteed QC for the DPP pointed out, an absence of significant mitigating factors. The appellant pleaded not guilty and maintains his innocence. In those circumstances, there can be no allowance for contrition or remorse. No error has been demonstrated on the part of the sentencing judge. In my opinion, the sentence which he imposed was well within a proper exercise of the sentencing discretion. It is for these reasons that I concurred in the dismissal of the appeal. I agree with the reasons expressed by Perry J for dismissing this appeal. I agree with the reasons expressed by Perry J for dismissing this appeal. I have nothing further to add.JUDGMENT CITATIONSLISTED IN ORDER OF APPEARANCE IN THE JUDGMENT1. (1997) 69 SASR 413.2. Ibid 424.3. (1995) 184 LSJS 333 at 337.4. (1998) 70 SASR 488 at 491. See also R v Athanasiadis (1990) 159 LSJS 240 per King CJ at 245.5. Ibid 498.6. Ibid 419.7. (1974) 8 SASR 102.8. (2000) 2 VR 1 at 4.9. (2000) 207 LSJS 431 at 457-458.10. (Unreported) 16 July 1996, judgment No S5781 at p 2.11. [1981] VR 155.12. See R v Kiltie (1974) 9 SASR 452.13. (1996) 186 LSJS 33 at 35.14. (Unreported) Court of Criminal Appeal, 19 November 2002, judgment No [2002] SASC 306 at para 146.15. (1996) 66 SASR 380 at 382-383.16. Above n 14, para 117.17. Ibid para 122 and para 124.

Ratio Decidendi

Legal Principle Established

Established by: PERRY J, NYLAND J, BLEBY J

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