R v VERCHER

[2015] SASCFC 141

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v VERCHER

[2015] SASCFC 141

Judgment of The Court of Criminal Appeal (ex tempore)

(The Honourable Justice Sulan, The Honourable Justice Peek and The Honourable Justice Stanley)

25 September 2015

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

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW - IN GENERAL - JUDGE MISTAKEN OR MISLED - GENERALLY

The appellant was sentenced in the District Court to one year and seven months' imprisonment, with a non-parole period of eight months, for offences of failing to comply with reporting obligations, and for an offence of unlawful sexual intercourse.

The appellant appealed on a number of grounds, with ground 10 being that the sentencing Judge erred in not applying a discount of greater than 10 per cent discount for an early guilty plea.

The respondent conceded the appeal on this ground.  The appellant pleaded guilty on 15 December 2014, the day on which the Director filed a fresh Information including the count of unlawful sexual intercourse.  The appellant pleaded guilty to that count, and was acquitted at trial of the other counts contained on the Information.

Held:

1.  The appellant pleaded guilty at the earlier possible opportunity, and was entitled to a sentence reduction of 40 per cent as a result  The Judge erred in applying a reduction of 10 per cent.

2.  Appeal allowed and appellant re-sentenced.

Criminal Law (Sentencing) Act 1988 (SA) s 10C(2)(a), s 18A; Child Sex Offenders Registration Act 2006 (SA), referred to.

R v VERCHER
[2015] SASCFC 141

Court of Criminal Appeal:       Sulan, Peek and Stanley JJ

1. THE COURT:      On 22 April 2015, a District Court Judge sentenced the appellant to imprisonment for one year and seven months, with a non-parole period of eight months for offences of failing to comply with reporting obligations, committed in March and April 2013, contrary to the Child Registration Offenders Act 2006 (SA), and for an offence of unlawful sexual intercourse committed on 19 December 2013.

2. In respect of the March and April 2013 offending, the Judge imposed a single sentence of imprisonment of six months, reduced from eight months, having regard to the appellant’s plea of guilty.  In respect of the offence of unlawful sexual intercourse, the Judge imposed a sentence of one year and nine months’ imprisonment, reduced from two years, on account of the appellant’s plea of guilty.

3. The sentencing Judge arrived at a total head sentence of two years and three months’ imprisonment, with a non-parole period of one year and four months’ imprisonment.  He then reduced both the head sentence and the non-parole period by eight months, having regard to the time spent by the appellant in custody and on home detention bail.  That resulted in a sentence of one year and seven months’ imprisonment, with a non-parole period of eight months’ imprisonment.

4. The appellant appealed the sentence on a number of grounds.  Ground 10 is that the learned sentencing Judge erred in not applying a greater than 10 per cent discount for the appellant’s plea of guilty.  Permission to appeal was initially refused on that ground, as  when submissions were made on the permission to appeal application it was not made clear to the Judge the exact circumstances under which the sentencing Judge applied the 10 per cent discount for the plea of guilty.

5. On appeal, it is conceded by the Director of Public Prosecutions that ground 10 is made out and that the sentencing Judge erred in his approach to the maximum discount to which the appellant was entitled on account of his plea of guilty. 

6. The basis of the concession is that, on 15 December 2014, the Director filed a fresh Information charging the appellant with one count of aggravated indecent assault, one count of indecent assault, one count of assault, two counts of rape and two counts of unlawful sexual intercourse.  On that day, the appellant pleaded guilty to one count of unlawful sexual intercourse committed on 19 December 2013 with BJK, a person under the age of 17 years, by causing her to perform an act of fellatio upon him.   In respect of the other six counts, the appellant pleaded not guilty.   After a trial, he was acquitted of those counts.

7. It is clear that the appellant pleaded guilty at the first available opportunity on 15 December 2014 and therefore, pursuant to s 10C(2)(a) of the Criminal Law (Sentencing) Act 1988 (SA), he was entitled to have his sentence reduced by up to 40 per cent. The Judge was, therefore, in error in applying a reduction of 10 per cent.

8. That error alone vitiates the sentence and, on that ground alone, we would grant permission to appeal, allow the appeal, and set aside the sentence.  It is, therefore, unnecessary for us to consider or determine the other grounds of appeal.

9. The Court has considered the material that was before the sentencing Judge.  The Court considers that it is in a position to re-sentence the appellant.  It is unnecessary for the Court to set out in detail the circumstances of the offending.  It is sufficient to observe that the offence of unlawful sexual intercourse took place behind a boat shed at the banks of the River Torrens, when the appellant inserted his penis into the complainant’s mouth. 

10. We sentence the appellant on the basis that that conduct was consensual. 

11. At the time, the appellant was 23 years of age and BK was 14 years of age. 

12. The appellant had previously been convicted of a similar offence when he was 18 or 19 years of age.  He was sentenced to 12 months’ imprisonment, with a non-parole period of six months’ imprisonment.  That sentence was suspended. 

13. On 7 November 2013, he was convicted of failing to comply with reporting obligations, contrary to the Child Sex Offenders Registration Act 2006 (SA). He was released on a bond to be of good behaviour for 12 months and to come up for sentence if he was not of good behaviour.

14. The act of unlawful sexual intercourse to which the appellant pleaded guilty was a breach of that bond.  It is, therefore, necessary for this Court to sentence the appellant for that breach, as well as the unlawful sexual intercourse.

15. Having regard to all the matters that were before the sentencing Judge, including the victim impact statement and the submissions of counsel, we consider that, in re-sentencing the appellant, we should impose one sentence, pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA).

16. In our view, the appropriate sentence, before applying a discount for the appellant’s pleas of guilty, is 20 months’ imprisonment.  Applying a discount of 40 per cent, that reduces the sentence to 12 months’ imprisonment.

17. The appellant is entitled to credit for seven months spent in custody prior to the sentence being imposed, and to five months spent in custody since the sentence was imposed.  We, therefore, determine that the sentence of 12 months’ imprisonment commence on 25 September 2014.

18. Given that the appellant has now served his sentence, it is unnecessary to set a non-parole period.  We direct that the appellant be released forthwith.

19. The Court allows the appeal.  The appellant’s sentence is quashed, and the appellant is re-sentenced to 12 months’ imprisonment to commence on 25 September 2014.