R v Whyte No. Sccrm-99-275 - [2000] SASC 93

R v WHYTE
[2000] SASC 93

Court of Criminal Appeal: Doyle CJ, Mullighan and Bleby JJ

DOYLE CJ I agree that the appeal should be dismissed for the reasons given by Mullighan J. There is nothing that I wish to add to those reasons.
MULLIGHAN J The appellant pleaded guilty in the District Court to 23 serious sexual offences committed on his niece by marriage on occasions over a period of 13 years from late 1982 until early 1996. One sentence of imprisonment for nine years with a non-parole period of five years to commence on 6th August 1997 was imposed. He appeals against that sentence on the sole ground that it is manifestly excessive.
He was sentenced on 21st August 1997. The delay in bringing the appeal was apparently due to a misunderstanding between the appellant and a legal representative and time within which to appeal was extended by a Judge of this Court.
The submission of the appellant on this appeal is that the learned sentencing Judge did not apply the correct sentencing standard for offences of this nature. In R v D (1997) 69 SASR 413, this Court had occasion to make observations about the appropriate sentencing standard for the offence of persistent sexual abuse of a child contrary to s74(1) of the Criminal Law Consolidation Act 1935. That offence was introduced by that section which came into operation on 28th July 1994. S74(2) provides that the offence consists of a course of conduct involving the commission of a sexual offence against a child on at least three separate occasions, whether the offence is of the same nature on each occasion or differs from occasion to occasion. S74(3) provides that the occasions must occur on separate days. S74(7) provides that a person convicted of the offence is liable to a term of imprisonment proportionate to the seriousness of the offender’s conduct which may, in the most serious of cases, be imprisonment for life.
In R v D Doyle CJ, with whom Bleby J agreed, said that sexual offences involving victims under the age of 12 years, where there are multiple offences committed over a period of time, should attract, as a starting point, a head sentence of about 12 years’ imprisonment, not only where the charge is persistent sexual abuse of a child but also where, as here, there are multiple sexual offences and a single sentence is imposed under s18A of the Criminal Law (Sentencing) Act 1988. However, he acknowledged that in an appropriate case the starting point might be higher or lower. He went on to say that when the child victim is over the age of 12 years, the starting point should be ten years. A little earlier in his reasons for judgment, Doyle CJ said at p424:
“It is not necessary for the court to give a warning before increasing the range of penalties for a particular type of offending: Poyner v The Queen (1986) 60 ALJR 616; Yardley v Betts

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 Whyte No. Sccrm-99-275

Details

AGLC: R v Whyte No. Sccrm-99-275 [2000] SASC [2000] SASC 93
Case: [2000] SASC 93
Decision Date: 12 April 2000

CaseChat Overview and Summary

The case of Whyte involved an appeal against a sentence imposed for serious sexual offences committed by the appellant on his niece by marriage over a period of 13 years. The appellant had pleaded guilty to 23 such offences and was sentenced to imprisonment for nine years with a non-parole period of five years. The appeal was brought on the sole ground that the sentence was manifestly excessive. The appellant argued that the learned sentencing Judge had not applied the correct sentencing standard for offences of this nature.

The legal issues that the Court of Criminal Appeal was required to decide were whether the learned sentencing Judge had erred in his approach to the sentence and whether he had adopted the wrong standard of sentencing. The appellant submitted that the sentencing Judge should have based the sentence on the standard at the time the appellant was sentenced and not at the level which was soon to be fixed in another case, R v D. The appellant argued that a higher sentencing standard should not be adopted except when a warning had been given and the conviction and sentence occurred thereafter.

The Court of Criminal Appeal found that sentencing standards established by the Court were never rigid and were general guides to those who have to sentence in the future. The Court found that the learned sentencing Judge had correctly decided that a sentence in the range applied by the Courts in serious, but not uncommon cases, would be inadequate. The Court found that the learned sentencing Judge had imposed a sentence which applied the appropriate principles of sentencing in the circumstances, taking into account the nature and extent of the offending and the detrimental impact that it had and would continue to have upon the victim.

The Court of Criminal Appeal dismissed the appeal and found no error in the exercise of the sentencing discretion. The Court found that the sentence imposed was proportionate to the gravity of the offence and that the learned sentencing Judge had appropriately considered the aggravating factors in the case.

The final orders of the Court of Criminal Appeal were that the appeal be dismissed.

Orders