SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v WILLIAMS
[2015] SASCFC 66
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Gray and The Honourable Justice Stanley)
8 May 2015
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - OTHER MATTERS
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - PROCURATION
Appeal against sentence.
The appellant was sentenced for two counts of procuring a child to engage in sexual activity contrary to s 63B(3)(a) of the Criminal Law Consolidation Act 1935 (SA) (CLCA) and one count of making a child amenable to sexual activity contrary to s 63B(3)(b) of the CLCA. The maximum penalty with respect to each offence is 10 years imprisonment.
There were two victims of the offending. Counts 1 and 2 involving contraventions of s 63B(3)(a) concern victim A. Count 3 involving a contravention of s 63B(3)(b) concerns Victim B. The appellant pleaded guilty to all three counts. The sentencing judge imposed a custodial sentence of three years with a non-parole period of 16 months. In relation to offences against A the learned sentencing judge imposed one sentence of imprisonment of two years and three months pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA). In relation to the offence against B the sentencing judge imposed a cumulative sentence of imprisonment of nine months. The judge declined to suspend the sentence finding good reason did not exist to do so.
Whether the head sentence and the non-parole period are manifestly excessive having regard to the nature and circumstances of the offending, the appellant's personal circumstances, his good prospects of rehabilitation and the need for appropriate treatment for the problems underpinning his sexual offending which is unavailable in prison.
Whether the judge erred in failing to find good reasons existed to suspend the sentence imposed by reference to the appellant's youth and prospects of rehabilitation.
Held per Stanley J (Kourakis CJ and Gray J agreeing) allowing the appeal:
1. It was open to the judge to find that good reason to suspend the sentence did not exist. The exercise of the judge's discretion has not miscarried (at [25]).
2. A head sentence of 3 years is manifestly excessive given the nature of the offending and the appellant’s personal circumstances (at [29]).
3. A non-parole period of 16 months is manifestly excessive. The public interest in the protection of children will be better served by the appellant spending a longer period on parole, under supervision, undergoing appropriate treatment and intervention, in the hope of preventing further offending of this kind (at [31]).
4. Appeal allowed. A single term of imprisonment is fixed in respect of all three counts pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA). The sentence is fixed…
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- R v WILLIAMS [2015] SASCFC 66
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- [2015] SASCFC 66
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CaseChat Overview and Summary
The legal issues before the court were whether the sentencing judge had erred in imposing the sentence, particularly in relation to the characterisation of the offending, the application of sentencing principles for sexual offences against children, and the consideration of the appellant's youth as a mitigating factor.
The court affirmed that the offending was serious and predatory, involving grooming and manipulation of the victims, and exploitation of positions of trust and authority. It reiterated the paramount importance of deterrence and punishment in sentencing for sexual offences against children, noting that a starting point of imprisonment is appropriate for such conduct. However, the court also acknowledged that the need for deterrence must be weighed against the gravity of the offending and the offender's circumstances, including prospects for rehabilitation. The court recognised that the youth of an offender is a mitigating factor, as younger offenders may be more prone to ill-considered conduct, may not fully appreciate the consequences of their actions, and possess greater potential for rehabilitation, with incarceration in an adult prison potentially hindering this. The court referenced authorities supporting the consideration of rehabilitation for young offenders, particularly those facing imprisonment for the first time.
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
Established by: GRAY J
The respondent submits that there was no error in the sentence imposed. Given the relevant circumstances the head sentence and non-parole period are within the appropriate range and it was open to the sentencing judge to find good reason to suspend the sentence did not exist.Consideration This is undoubtedly serious offending. In my view the judge was correct in characterising the offending as predatory. There were elements of grooming and manipulation in the offending against both victims. The appellant exploited his position of trust in relation to A, which existed by reason of the relationship between them, and his position of authority in relation to B when he was his football coach. This court has repeatedly emphasised that, in sentencing for sexual offences committed against children, paramount consideration should be given to the need for deterrence and punishment. In cases involving this kind of offending, where there has been a course of conduct by a person in a position of trust and authority, the starting point should be a sentence of imprisonment. Penalties should reflect community feelings of outrage and revulsion about offences of this type and the Court is to do what it can to protect children from such offending.[6] These principles are reinforced by the injunction found in s 10(4) of the Sentencing Act which requires that in sentencing for an offence involving the sexual exploitation of a child, paramount consideration is given to the need for general and personal deterrence. However, the the need for general and personal deterrence is to be weighed along with consideration of the gravity of the offending and the defendant's circumstances, including his or her prospects for rehabilitation.[6] R v D (1997) 69 SASR 413; R v Quinn [2012] SASCFC 102 at [29], (2012) 114 SASR 354 at 361. The appellant's personal circumstances include his youth. It is well accepted that the youth of an offender is a mitigating factor. In R v Schultz[7] White J said:[8]This is because courts recognise that the young and immature are more prone to ill‑considered or rash conduct; and may not appreciate fully the nature, seriousness and consequences of the criminality involved in their conduct. It is also because they recognise the potential for young offenders to be redeemed and rehabilitated and because they consider the effect of incarceration in an adult prison is likely to impair, rather than improve, the young offender's prospects of rehabilitation.A number of the authorities reflect these considerations. In R v Carroll, King CJ spoke of courts being "inclined to mercy in the case of young people facing prison for the first time", and in R v Weaver Bray CJ, Mitchell and Sangster JJ said:Whenever a young person is before the court, particularly upon his first appearance as an adult, it seems to us that his rehabilitation should be a prominent consideration in fixing the sentence.(Citations omitted).[7] [2010] SASCFC 47.[8] [2010] SASCFC 47 at [23] – [24].