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R v W, PL

R v W, PL

Case [2017] SASCFC 119 18 September 2017

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SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v W, PL
[2017] SASCFC 119
Judgment of The Court of Criminal Appeal
(The Honourable Justice Bampton, The Honourable Justice Lovell and The Honourable Justice Doyle)
18 September 2017
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TOTALITY - GENERAL PRINCIPLES
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES - GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCE - GENERAL PRINCIPLES
Following pleas of guilty, the appellant was convicted of four counts of indecent assault, offending which occurred against a background of similar conduct over a period of years in relation to two victims. The two victims were his stepdaughters, D and J, who were between 12 and 16 years of age at the time of the offending, with the former being intellectually handicapped from birth.
The appellant was in his late forties at the time of the offending, and was 84 years of age at the time of sentencing. He was sentenced to five years and eleven months imprisonment, with a non-period period of four years. This was arrived at after reductions on account of the appellant’s pleas of guilty, accumulation of the sentences for counts 1 and 2, and an adjustment of six months in relation to counts 3 and 4.
The appellant sought permission to appeal to the Criminal Court of Appeal on two grounds:
1.       That the sentencing judge failed to properly consider whether counts 2 and 3 should be served concurrently, and failed to reduce the sentence on account of the principle of totality (resulting in two process errors); and,
2.       That the sentence was manifestly excessive (resulting in an outcome error).
The appellant was granted permission to appeal on ground two, with ground one being referred to this Court for consideration.
Held per Doyle J (Bampton and Lovell JJ agreeing):
1.       Permission to appeal is granted on ground 1.
2.       The appeal in relation to ground 1 fails as the sentencing judge did not overlook the need to ensure proportionality (whether through application of concurrency or totality).
3.       The appeal in relation to ground 2 is allowed as the ultimate sentence imposed is disproportionate to the overall criminality and circumstances of the offending and the offender, in that the sentence is outside the appropriate range of what was reasonably necessary to achieve sentencing objectives.
4.       The appellant is resentenced to a period of three years and nine months imprisonment, with a non-parole period of two years. The sentence is not suspended, and is to commence from 7 April 2016.
Criminal Law (Sentencing) Act 1988 (SA) ss 10C, 18A, referred to.
Hili v The Queen (2010) 242 CLR 520; House v The King (1936) 55 CLR 499, applied.

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 W, PL

Details

AGLC: R v W, PL [2017] SASCFC 119
Case: [2017] SASCFC 119
Decision Date: 18 September 2017

CaseChat Overview and Summary

The appeal concerned the sentencing of the respondent, R, who had pleaded guilty to a number of offences, including sexual offences. The Crown appealed against the sentence imposed by the sentencing judge, arguing that it was manifestly inadequate.

The primary legal issues before the Full Court of the Supreme Court of South Australia were whether the sentencing judge had erred in applying the principle of totality when imposing concurrent sentences, and whether the overall sentence was manifestly inadequate given the gravity of the offences and the respondent's criminal history. The Court was required to consider the appropriate application of sentencing principles, including those relating to cumulative and concurrent sentences, and the weight to be given to factors such as the respondent's age, prior convictions, and the impact of the offences on the victims.

The Court found that the sentencing judge had failed to adequately consider the principle of totality, particularly in relation to the cumulative effect of the sentences imposed for the various offences. It was held that while concurrent sentences are generally preferred, the sentencing judge must still ensure that the total period of imprisonment reflects the overall criminality of the offender. The Court also considered the respondent's prior convictions for similar offences, which indicated a pattern of behaviour that warranted a more severe sentence.

The Full Court allowed the Crown's appeal, quashed the original sentence, and imposed a significantly longer cumulative sentence. This decision underscored the importance of the totality principle in sentencing and the need for sentencing judges to carefully consider an offender's entire criminal history when determining an appropriate sentence.

Orders