R v White - [2010] SASC 77

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v WHITE
[2010] SASC 77
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Vanstone and The Honourable Justice Layton)
31 March 2010
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCE - PARTICULAR CASES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE
Respondent pleaded guilty to five counts of sexual intercourse with a person under the age of 14 years, that offence carrying a maximum penalty of imprisonment for life, and one count of sexual intercourse with a person under the age of 17 years, that offence carrying a maximum penalty of imprisonment for ten years - victim was the younger sister of the respondent's wife - respondent had been previously convicted of five counts of aggravated indecent assault committed against the same victim - respondent sentenced to four and a half years' imprisonment, with a non-parole period fixed at three years - application for permission to appeal against sentence by Director of Public Prosecutions.
HELD: whilst the Judge's sentencing remarks do not disclose error, the sentence imposed by the Judge demonstrates that the Judge erred - personal and general deterrence important factors in the circumstances - respondent planned meeting the victim, and facilitated contact with her - appeal allowed and respondent sentenced to imprisonment for six years and two months, after having taken into account the leniency afforded on a Crown appeal and the respondent's pleas of guilty - non-parole period fixed at four years and one month.
Criminal Law Consolidation Act 1935 (SA) s 49(1) and s 49(3); Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
R v D (1997) 69 SASR 413; R v E, AD (2005) 93 SASR 20, discussed.
Everett v The Queen (1994) 181 CLR 295; R v Nemer (2003) 87 SASR 168; R v Osenkowski (1982) 30 SASR 212, considered.

R v WHITE
[2010] SASC 77
Court of Criminal Appeal: Doyle CJ, Vanstone and Layton JJ

DOYLE CJ: The Director of Public Prosecutions has applied for permission to appeal against a sentence imposed by the District Court.
Mr White pleaded guilty to a number of offences. He pleaded guilty to five counts of sexual intercourse with a person under the age of 14 years, contrary to s 49(1) of the Criminal Law Consolidation Act (SA) (1935) (the CLCA). Each of those offences attracted a maximum punishment of imprisonment for life. He pleaded guilty to one count of sexual intercourse with a person under the age of 17 years, contrary to s 49(3) of the CLCA. The maximum punishment for that offence is imprisonment for ten years. The victim in each case was the same person. I will refer to her as A. At the time of the first five offences she was 13 years of age. At the time of the sixth offence she was 14 years of age.
The Judge imposed a single…

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 White

Details

AGLC: R v White [2010] SASC 77
Case: [2010] SASC 77
Decision Date: 31 March 2010

CaseChat Overview and Summary

The case of R v White involved the respondent, who had pleaded guilty to five counts of sexual intercourse with a person under the age of 14 years and one count of sexual intercourse with a person under the age of 17 years. The victim was the younger sister of the respondent’s wife. The respondent had been previously convicted of five counts of aggravated indecent assault against the same victim. He was sentenced to four and a half years' imprisonment, with a non-parole period fixed at three years. The Director of Public Prosecutions subsequently applied for permission to appeal against the sentence.

The legal issues before the court were whether the sentence imposed was appropriate and whether there was an error in the sentencing principles applied by the trial judge. The court considered the severity of the crimes, the vulnerability of the victim, the respondent’s previous convictions, and the need for both personal and general deterrence. The court also noted that the maximum penalty for these offences was imprisonment for life and ten years respectively, and that the starting point for sentencing should reflect the seriousness of such crimes.

In its reasoning, the court determined that while the trial judge had considered relevant and appropriate matters, the resulting sentence did not adequately reflect the seriousness of the crimes committed. The court found that the starting point of six years was too low given the nature of the offences. The court emphasised that the sentence should reflect an appropriate standard of deterrence and protection for children and young women, particularly in light of the respondent’s previous convictions and lack of deterrence from earlier sentences. The court concluded that the sentence imposed was insufficient and that a more severe sentence was warranted.

The court granted the application for permission to appeal and remitted the case to the trial court for resentencing. The new sentence was to reflect an appropriate standard for such serious offences, taking into account the factors outlined in the judgment.

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

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Ratio Decidendi

Legal Principle Established

The Judge imposed a single sentence of imprisonment for four years and six months. But for the pleas of guilty the sentence would have been six years. The Judge fixed a non-parole period of three years. Consideration of Appeal No significant criticism was made of the Judge’s approach to the facts of the case. I agree that there is no indication of any error in that respect by the Judge. Nor do the Judge’s sentencing remarks disclose any error of sentencing principle, or in the Judge’s general approach to the facts. The Judge referred to the relevant and appropriate matters. However, in my opinion, the end result demonstrates that the Judge has erred. The starting point of six years was much too low for offending of this seriousness. The starting point does not reflect, and is not consistent with, an appropriate standard of sentence for this kind of offending. It is not just a case of the Judge falling below the level of sentencing that is appropriate in all the circumstances. It is a case in which the starting point reflects an inadequate sentencing standard, and one that should be corrected. The Court was referred to observations I made in R v D (1997) 69 SASR 413 relating to sexual offending involving young children. We were referred to further observations that I made on that topic in R v E, AD [2005] SASC 332; (2005) 93 SASR 20 at [20]-[21] in particular. What I said in those cases is not directly applicable to the present case. However, in each of those decisions I emphasised the seriousness of sexual offending involving young children, and relatively young children, and I emphasised also the need to bear in mind, when it is the case, that the maximum sentence is life imprisonment. There are features of the present case that call for a much more severe sentence than the Judge imposed. I have touched on them above. I will summarise them. First, the circumstance that Mr White was not deterred by the sentence imposed by the New South Wales court. Second, it is irrelevant whether or not A made an approach to Mr White in early 2009. He encouraged her to respond to his advances. Third, through the course of this unlawful conduct Mr White engaged in careful planning and deceit to achieve his aims. Fourth, A was from within the family group, and Mr White must have been aware of her general vulnerability. Fifth, Mr White drew A away from the care of her grandmother, from the foster carers in New South Wales, and then from her relatives in South Australia. He showed an unusual degree of determination to achieve his ends. The same applies to his dealings with the police. Sixth, as a result of his offences in November 2005 and February 2006 Mr White was aware of the likely effect of his conduct on A, and of the risk of her family rejecting her, as later happened. Seventh, there is a clear need for a substantial element of personal deterrence. The report from the psychologist states that “…Mr White has some distance to go in fully appreciating how he might rehabilitate himself”. Eighth, it continues to be the case that general deterrence is important. Men like Mr White have to understand that engaging in sexual relations with female children and with young women will be punished severely. They need to understand that the law is there to protect children and young women against their own immaturity and vulnerability. The harmful effect of such offending on children is well illustrated by the Victim Impact Statement provided by A. The offending has led to her being treated for stress and anxiety and has significantly interrupted her schooling.