R v WHITTEMORE - [2012] SASCFC 88

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Criminal)
R v WHITTEMORE
[2012] SASCFC 88
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Nyland and The Honourable Justice Anderson)
24 July 2012
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCE - PARTICULAR CASES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - GENERAL PRINCIPLES
Applicant convicted on eight counts of unlawful sexual intercourse - District Court Judge imposed a single sentence of four years one month and 21 days' imprisonment - a non-parole period of 15 months was fixed - District Court Judge declined to suspend the sentence - application for permission to appeal against sentence of immediate imprisonment - a Supreme Court Judge refused permission to appeal - applicant requested that his application be heard by the Full Court.
The issues raised on the application were whether the failure to suspend the sentence was manifestly unreasonable, and whether the sentence imposed was manifestly excessive in the circumstances of the case.
Held: application for permission to appeal refused - the failure to suspend the sentence was not manifestly unreasonable - the head sentence was not manifestly excessive in the circumstances.
Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
R v Petrovski [2005] SASC 330; R v D (1997) 69 SASR 413, discussed.
R v Cambridge [2004] SASC 399, considered.

R v WHITTEMORE
[2012] SASCFC 88
Court of Criminal Appeal: Kourakis CJ, Nyland and Anderson JJ

KOURAKIS CJ: This is an application for permission to appeal against a sentence of immediate imprisonment imposed in the District Court upon the applicant’s convictions on eight counts of unlawful sexual intercourse. The sentencing Judge imposed a single sentence, pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA), of four years one month and 21 days’ imprisonment for all of the offences.He fixed a non-parole period of 15 months. The District Court Judge declined to suspend the sentence.
A Judge of this Court refused permission to appeal. The applicant requested that his application be determined by the Court of Criminal Appeal. The application was heard on 18 June 2012. On that day this Court refused permission. We now publish our reasons.
The applicant raised two principle contentions on the hearing of the application. First, the applicant submitted that the sentencing Judge erred by deciding not to suspend his sentence. Secondly, the applicant complains that the sentence imposed by the sentencing Judge was manifestly excessive.
Facts
The offences were committed over about one month in October 1984, shortly after the victim’s 15^th birthday. The victim, to whom I will refer as V, was a young Taekwondo athlete who had recently competed in the Australian Championships. The competition…

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 WHITTEMORE

Details

AGLC: R v Whittemore [2012] SASCFC 88
Case: [2012] SASCFC 88
Decision Date: 24 July 2012

CaseChat Overview and Summary

The applicant, R v Whittemore, sought permission to appeal against a sentence imposed by the District Court for eight counts of unlawful sexual intercourse. The District Court Judge had sentenced the applicant to four years, one month, and 21 days imprisonment, with a non-parole period of 15 months, and declined to suspend the sentence. A single judge of the Supreme Court had initially refused permission to appeal, leading the applicant to request a hearing before the Full Court.

The Full Court was required to determine two principal issues: whether the sentencing judge erred in refusing to suspend the applicant's sentence, and whether the imposed sentence was manifestly excessive. The offending occurred over approximately one month in 1984, shortly after the victim, aged 15, met the applicant, who was then 33 and became her personal coach. The offences involved penile sexual intercourse and other forms of unlawful sexual activity on four separate occasions, including in a hotel room. The victim impact statement highlighted the significant and lasting negative impact of the applicant's conduct on the victim's life.

The Court reasoned that the sentencing judge had not erred in referring to the standard set in *R v D* as a guide, noting that the judge explicitly stated that the case must be decided on its own facts and that authorities could only offer limited assistance. The judge's remarks indicated that *R v D* was used as a benchmark rather than a rigid rule, and that the particular circumstances of the offending and the applicant's personal considerations were given serious regard. The Court also found that the judge appropriately considered the delay in the complaint and the applicant's rehabilitation when deciding against suspending the sentence, acknowledging the judge's comments on the passage of time and the applicant's subsequent law-abiding conduct, while also referencing the principle that such factors should not be given undue weight in cases of this nature.

Ultimately, the Full Court concluded that the head sentence was not manifestly excessive, being less than half the standard set for similar offending as described in *R v D*. The non-parole period was also considered mercifully less than the ordinary proportion. For these reasons, the Court refused permission to appeal.

Orders

Orders of the court

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Background

Background to the litigation

The applicant raised two principle contentions on the hearing of the application. First, the applicant submitted that the sentencing Judge erred by deciding not to suspend his sentence. Secondly, the applicant complains that the sentence imposed by the sentencing Judge was manifestly excessive.Facts The offences were committed over about one month in October 1984, shortly after the victim’s 15th birthday. The victim, to whom I will refer as V, was a young Taekwondo athlete who had recently competed in the Australian Championships. The competition had been held on the Gold Coast in Queensland, where V met the applicant for the first time. On her return to South Australia the applicant, who was then aged 33 became V’s personal coach. It was his responsibility to drive V home after training when her parents were not able to do so. The offending took place on four separate occasions. On three of those occasions the applicant interrupted the journey home after training to park in a suburban street (the journey incidents). On each of the journey incidents the applicant had penile sexual intercourse with V. He also engaged in another act of sexual intercourse either by digital penetration, cunnilingus or fellatio. Those six acts of sexual intercourse are the subject of six of the counts. During the journey incidents the applicant also engaged in other unlawful sexual activity with V which was not charged. On one occasion, the applicant hired a hotel room to which he secretly took V. V had told her parents that she would be staying overnight with a friend. Again there was digital and penile intercourse which were the subject of the remaining two counts. The offences in the hotel were committed shortly before V and her family left Australia to reside overseas on 2 November 1984. The Judge found that in 1984 V was a relatively naive 15 year old girl who lived a sheltered life with her devoutly Christian family. The offending was first discovered when V’s parents came across a letter which the applicant had written to V in England. The letter included explicit references to his sexual encounters with V. The letter distressed V and her parents, but V could not bring herself to report the applicant’s conduct to police even after her family returned to Australia a year later. Only after the death of V’s father, in 2009, was she able to make a formal complaint to police. The victim impact statement prepared by V discloses the havoc wreaked on her life by the offending and the shame that she needlessly carried for offending which was the applicant’s sole responsibility. As a promising young athlete, V had much to look forward to. The applicant’s conduct, at least in a large part, denied V the realisation of that promise. The applicant admitted some of the offending in a telephone conversation with V, instigated by police after V had made her formal complaint, which was covertly taped. The applicant also made admissions in a subsequent police interview. However, he initially pleaded not guilty to the offences with which he was charged because he disputed the date and occasion on which he had first offended against V. The applicant changed his plea to guilty on some of the charged counts on the first day of trial after they were amended to reflect, the now accepted fact that the offending commenced after V returned from the Australian Championships and, therefore, just after her 15th birthday.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Even if the applicant’s offending had not been within the category governed by R v D, the Judge would have committed no error in referring to the standard it set for general guidance. The sentencing ranges appropriate for other broad classes of sexual offending cannot be determined in isolation. On the contrary, it is necessary to ensure coherence in sentencing for a particular offence by ensuring an appropriate relativity across all classes of offending.Conclusion Ultimately, it is not arguable that the head sentence, which is less than half the standard set for offending of the kind described in R v D, is manifestly excessive in the circumstances of this case. The non-parole period that was fixed is mercifully less than the ordinary proportion. For the above reasons we refused permission to appeal. NYLAND J: The facts of this matter are set out in the reasons of the Chief Justice. The principal argument on the application for permission to appeal related to the reference by the Sentencing Judge to the decision in R v D.[4] Counsel submitted that in reliance on R v D the Judge had fixed as a benchmark a starting point higher than was warranted in the circumstances of this case. That resulted in a sentence which was manifestly excessive. [4] (1997) 69 SASR 413. I agree with the Chief Justice that no error has been demonstrated by the Judge in his reference to R v D in his sentencing remarks. It is clear that he only used that case as a guide. That is demonstrated by the fact that immediately after referring to R v D the Judge said:Of course your case, like all cases, must be decided on its own facts and the authorities in this area can be of limited assistance only. This is all the more so here because of the particular circumstances of your offending and because of the many personal considerations in your favour. (emphasis added) I also consider that the Judge appropriately considered the question of delay and the rehabilitation of the applicant when he turned his mind to the question of suspension of sentence. As to this aspect of the matter, the Judge said:An important consideration when ultimately I come to sentence is the fact that the offences were committed such a long time ago and that in the intervening period you have proved yourself to be a responsible, decent and law-abiding person. It has come as a great shock to you and your family that after all this time you are facing the prospect of a prison sentence. This together with the many personal considerations in your favour as explained in your counsel’s submissions suggests that leniency with respect to both head sentence and non-parole period is warranted. These are also matters to which serious regard needs to be given when considering the question of possible suspension of the prison term that I must impose. The Judge then referred to R v V, A J.[5] In that case Doyle CJ discussed the limited weight to be attributed to the passage of time and intervening conduct and said:[6]… It is a not uncommon circumstance that, by the time offending of this kind comes to light, the offender has resumed a normal law-abiding life. Offenders will escape due punishment if the passage of time and the resumption of a law abiding life are given too much weight in cases of this kind. [5] [2012] SASCFC 10.[6] Ibid at para 3.

Ratio Decidendi

Legal Principle Established

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