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R v Warsap

R v Warsap

Case [2011] SASCFC 129 11 November 2011

Appeal

Jurisdiction

Sentencing

Statutory Construction

Criminal Law

Statutory Interpretation

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SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v WARSAP
[2011] SASCFC 129
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice David)
11 November 2011
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS - DANGEROUS SEXUAL OFFENDER - GENERALLY
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - FACTUAL BASIS FOR SENTENCE - GENERALLY
Appeal against sentence - where defendant pleaded guilty to the offence of persistent sexual exploitation of a child - following application by Director of Public Prosecutions, District Court Judge remanded the defendant to the Supreme Court - Supreme Court Judge conducted an enquiry pursuant to section 23 of the Criminal Law (Sentencing) Act 1988 (SA) as to whether the defendant was incapable of controlling his sexual instincts - the Judge determined not to make an order pursuant to section 23 - where the Judge then proceeded to sentence the defendant; a sentence of 13 years imprisonment was imposed and a non-parole period of nine years was fixed - where complained on appeal that, as the Judge had declined to make a section 23 order, the Judge lacked jurisdiction to sentence the defendant, and in the alternative, that if the Judge acted within jurisdiction, the matter should have been remitted to the District Court Judge for sentencing.
Discussion regarding the interpretation of section 23(6) of the Act.
Held: Appeal dismissed - the Supreme Court has jurisdiction to sentence notwithstanding that in a particular case the Court declines to make a section 23 order - section 23(6) does not exclude a jurisdiction to remit or sentence - on a proper interpretation, the powers of the Supreme Court under section 23(6) are not to be read to be limited - the circumstances provide a clear basis for the proceeding, as a matter of discretion, to have remained in the Supreme Court for the purposes of sentencing.

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Alternative contention that sentence imposed was manifestly excessive - complained on appeal that Judge should not have proceeded to sentence on basis that victim had been subjected to anal intercourse - complained that Judge failed to weigh in the defendant's favour, the defendant's offer to apologise to victim - further complained that Judge's description of the cross-examination of the victim as "prolonged and rather aggressive" was unwarranted, and that in all the circumstances, having regard also to the decision in R v D, the sentence imposed was manifestly excessive.
Held: Appeal dismissed - the Judge's findings were open to her - the Judge's conclusions with respect to the apology and her description of the cross-examination, were justified - no error identified.
Criminal Law Consolidation Act 1935 (SA) s 50(1); Criminal Law (Sentencing) Act 1988 (SA) s 23, referred to.
R v Warsap (2010) 106 SASR 264;

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 Warsap

Details

AGLC: R v Warsap [2011] SASCFC 129
Case: [2011] SASCFC 129
Decision Date: 11 November 2011

CaseChat Overview and Summary

This matter concerned an appeal against sentence brought by the defendant, R v Warsap. The appeal arose from a sentencing hearing in the Supreme Court of South Australia following the defendant's guilty plea to the offence of persistent sexual exploitation of a child. The District Court Judge had initially remanded the defendant to the Supreme Court for an inquiry under section 23 of the *Criminal Law (Sentencing) Act 1988* (SA) to determine if the defendant was incapable of controlling his sexual instincts.

The central legal issues before the Full Court of the Supreme Court of South Australia were whether the sentencing judge retained jurisdiction to impose a sentence after declining to make an order under section 23 of the *Criminal Law (Sentencing) Act 1988* (SA), and alternatively, if jurisdiction was retained, whether the matter should have been remitted to the District Court for sentencing. The defendant argued that the failure to make a section 23 order divested the Supreme Court of jurisdiction to sentence, or that the matter should have been returned to the District Court.

The Full Court held that the inquiry under section 23 was a preliminary step that did not preclude the sentencing judge from proceeding to sentence the defendant if no order was made under that section. The court reasoned that the *Criminal Law (Sentencing) Act 1988* (SA) contemplated that a judge conducting a section 23 inquiry could, upon finding that the criteria for such an order were not met, proceed to impose a sentence under the general sentencing provisions of the Act. Therefore, the Supreme Court Judge had not erred in proceeding to sentence the defendant.

The appeal was dismissed, and the sentence of 13 years imprisonment with a non-parole period of nine years was affirmed.

Orders