R v Wilson - [2009] SASC 92

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v WILSON
[2009] SASC 92
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Kelly)
6 April 2009
CRIMINAL LAW - SENTENCE - PURPOSE OF SENTENCE - DETERRENCE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER
Appeal against sentence - defendant and appellant, a medical practitioner, charged with two counts of unlawful sexual intercourse with a former patient - defendant pleaded not guilty in relation to both counts - defendant submitted he believed on reasonable grounds that the complainant was aged at or above 17 years as per defence in section 49(3) of Criminal Law Consolidation Act 1935 (SA) - convicted by jury on both counts - whether sentencing judge erred in failing to suspend sentence - whether sentencing judge erred in placing too much weight on personal and deterrence for persons in position of the defendant - whether defendant rehabilitated - whether defendant in position of trust.
Held: appeal dismissed - offending too serious to warrant suspension of sentence.
Criminal Law Consolidation Act 1935 (SA) s 49(3); Criminal Law (Sentencing) Act 1988 (SA) s 18A and s 38, referred to.
Markarian v The Queen (2005) 228 CLR 357; Woods v Samuels (1974) 8 SASR 465; Bignell v Police (Unreported, Supreme Court of South Australia, Civil, Bleby J, 11 December 1997); R v McInerney [1986] 42 SASR 111, considered.

R v WILSON
[2009] SASC 92
Court of Criminal Appeal Gray, Sulan and Kelly JJ
GRAY AND SULAN JJ.

This is an appeal against sentence.
On 3 December 2008, the defendant and appellant, Gregory Colin Wilson, was sentenced to a term of imprisonment of two years and eight months. A non-parole period of thirteen months was fixed. The trial Judge declined to suspend the sentence.
The question for determination on this appeal is whether the term of imprisonment imposed by the sentencing Judge should have been suspended. More particularly, the question is whether the sentencing discretion not to suspend the sentence miscarried. In Markarian, the High Court confirmed the approach to be followed by this Court: [1]
As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender’s appeal, as “manifest excess”, or in a prosecution appeal, as “manifest inadequacy”.
[1] Markarian v The Queen (2005) 228 CLR 357 at [25] –…

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 Wilson

Details

AGLC: R v Wilson [2009] SASC 92
Case: [2009] SASC 92
Decision Date: 6 April 2009

CaseChat Overview and Summary

The appeal in R v Wilson involves a medical practitioner who was convicted by a jury on two counts of unlawful sexual intercourse with a former patient. The defendant, who pleaded not guilty, argued that he reasonably believed the complainant was aged 17 or older at the time of the offences. The sentencing judge did not suspend the term of imprisonment, leading the defendant to appeal against the sentence on the grounds that the judge erred in not suspending the sentence and in placing excessive weight on personal and general deterrence. The central legal issues were whether the sentencing judge had erred in not suspending the sentence and whether the sentence was manifestly excessive. The Court of Appeal found no demonstrable error in the sentencing judge's decision and concluded that the sentence, particularly the non-parole period, was merciful given the circumstances. The appeal was dismissed, and the original sentence was upheld.

The Court of Appeal considered the principles established by the High Court in Markarian v The Queen, which outline the approach to appeals against sentence. The Court examined whether the sentencing judge had allowed any extraneous or irrelevant matters to influence the decision, misconstrued any facts, or failed to consider relevant factors. The Court concluded that the sentencing judge had properly considered the nature and circumstances of the offender and the purposes of sentencing, including deterrence. The Court also highlighted the unfortunate circumstance of the defendant being sentenced for related offences by different judges, which had the potential to result in an unduly lenient sentence. Ultimately, the Court found no basis to interfere with the sentence imposed by the sentencing judge.

The reasoning of the Court of Appeal emphasized the importance of considering the principles of sentencing, including the nature and circumstances of the offender, the purposes of sentencing, and the need for consistency in sentencing related offences. The Court found that the sentencing judge had appropriately balanced these considerations and had not erred in deciding not to suspend the sentence. The Court also noted the significant delay in reporting the offences, which complicated the determination of the precise dates and ages relevant to the offences. Despite these complications, the Court upheld the sentence as reasonable and just, given the nature of the crimes and the defendant's position of trust. The outcome of the appeal was that the original sentence should stand, and the appeal was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

The question for determination on this appeal is whether the term of imprisonment imposed by the sentencing Judge should have been suspended. More particularly, the question is whether the sentencing discretion not to suspend the sentence miscarried. In Markarian, the High Court confirmed the approach to be followed by this Court: [1]As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender’s appeal, as “manifest excess”, or in a prosecution appeal, as “manifest inadequacy”.[1] Markarian v The Queen (2005) 228 CLR 357 at [25] – (footnotes omitted).The Facts On 15 September 2008, the defendant was convicted by jury verdict of two counts of unlawful sexual intercourse. It was alleged that during 1991 on two occasions at Highbury and North Haven, the defendant had sexual intercourse with a girl of the age of 16 years and a few months. The defendant was then aged 42 years. The dates of the offending were the subject of much contention at trial. In respect of the first count, the defendant instigated the act of sexual intercourse, which involved the digital penetration of the complainant’s vagina in a spa at the Highbury home of the defendant. The complainant had attended at the defendant’s home with her family and the act occurred at a time when her father was in close proximity. The offending in respect of the second count of the Information occurred a few months later in 1991 in a boat owned by the defendant at North Haven. The defendant instigated the act of sexual intercourse, and digitally penetrated the complainant’s vagina. The complainant’s family was present on the boat at that time. It was the defence case that the incidents the subject of the two counts took place at a later time than alleged by the complainant. The defendant claimed that at the time of the incidents the complainant was aged between 16 and 17 years and that he believed on reasonable grounds that she was above the age of 17 years. At trial the defendant admitted to having engaged in the subject acts of sexual intercourse with the complainant, and that she was, on both occasions, a person under the age of 17 years. However, the defendant pleaded not guilty in relation to both counts on the basis that he genuinely believed on reasonable grounds that the complainant was aged at or above 17 years. He relied on the defence set out in section 49(3) of the Criminal Law Consolidation Act 1935 (SA).[2] The jury convicted the defendant on both counts. As Beazley DCJ observed in his reasons for ruling:[2] Section 49(3)-(5) of the Criminal Law Consolidation Act 1935 (SA) provides:(3)A person who has sexual intercourse with a person under the age of seventeen years is guilty of an offence. Maximum penalty: Imprisonment for 10 years.(4) It shall be a defence to a charge under subsection (3) to prove that— (a)the person with whom the accused is alleged to have had sexual intercourse was, on the date on which the offence is alleged to have been committed, of or above the age of sixteen years; and (b) the accused— (i) was, on the date on which the offence is alleged to have been committed, under the age of seventeen years; or (ii) believed on reasonable grounds that the person with whom he is alleged to have had sexual intercourse was of or above the age of seventeen years. (5)A person who, being in a position of authority in relation to a person under the age of 18 years, has sexual intercourse with that person is guilty of an offence. Maximum penalty: Imprisonment for 10 years.The jury’s verdicts decided the issues joined on the information. They clearly rejected the defence pursuant to s 49(4) of the Act. However, they did not decide, either expressly or by implication, all of the facts of possible relevance to sentencing. On the view most favourable to the accused the jury may have been satisfied on the balance of probabilities of all of the elements of the defence case save that it was not satisfied as to whether his genuine belief that the victim was then aged 17 years or more in respect of both counts was based on reasonable grounds. The jury’s verdict was however opaque. It may be that the jury was divided on factors otherwise relevant to sentencing.There were alternative paths of reasoning which may have led the jury to reject the defence raised by the offender. It is possible that the jury saw no need at all to reject the defence raised by the offender. It is possible that the jury saw no need at all to consider the dates of the offences nor the ages of the victim in light of the way the trial was conducted. It may have determined that the offender had failed to satisfy them of the statutory defence because the offender’s belief could not have been made on reasonable grounds. I repeat the jury was considering the defendant’s claim to the statutory defence on the balance of probability. It was not strictly necessary for it to determine the age of the victim or the dates of the offences beyond reasonable doubt.The jury’s verdict leaves open its findings as to the age or ages of the victim as at the date of the respective offences.I have already referred to the view most favourable to the accused. If it did consider the ages of the victim, then other alternatives open to the jury were, inter alia:(a)That the victim was aged 16 years at the date of each count, but that it did not accept that the offender genuinely believed that the victim was aged 17 years or over.(b)That in respect of one or both counts, they were not satisfied as to precisely when the offence or offences took place, save that they were satisfied that one or both counts occurred prior to her 16th birthday.(c)That the victim’s version was accepted in its entirety – namely that she was aged 13 and 15 respectively as at the dates of the offences, to which she deposed, being Christmas Day in 1988 and 1990.At the conclusion of his reasons, Beazley DCJ went on to say:Ultimately and notwithstanding the clear evidence pointing to count 1 having occurred on a Christmas Day I cannot make that finding beyond reasonable doubt. The long delay which occurred before the offences were brought to the attention of the victim’s parents; my lack of satisfaction as to the date of the offence in count 2, which had also been said by the Prosecution witnesses to have occurred on a Christmas Day; and, the fact that there could not have been a significant delay between the offences, together mean that I have a reasonable doubt about the first offence having occurred on a Christmas Day. Accordingly I am left to sentence the offender on the basis that the first count occurred when the victim was aged 16 years in the second half of 1991. This finding in my opinion, is consistent with the verdict of the jury as to count 1.I propose to sentence the offender on the basis most favourable to him in light of my findings, namely that the first offence occurred when the victim was aged 16 years and a few months in 1991, and that in respect of the second offence she was aged 16 years and 7 months in late 1991.In my opinion these findings are consistent with the verdicts of the jury.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

GRAY AND SULAN JJ

In the present case, no demonstrable error has been shown on the part of Beazley DCJ. The considerations discussed above militate against suspending the sentence of imprisonment. The sentence imposed, and, more particularly, the non-parole period, were, in our view, merciful in the circumstances. Conclusion This appeal should be dismissed.KELLY J: I agree that the appeal should be dismissed for the reasons given by Gray and Sulan JJ. I would add that the sentencing judge was placed in an invidious situation by the sentencing of the appellant in relation to other counts of unlawful sexual intercourse on 24 April 2008. As Gray and Sulan JJ have already noted this was an unsatisfactory and regrettable state of affairs. This was particularly so in the light of the fact that it was known during the sentencing submissions in the earlier matter that the trial of the appellant on these charges was scheduled to take place only two months later in June 2008. In my view, courts and prosecuting authorities should strive to ensure that, wherever possible, the sentencing of an offender on multiple offences where those multiple offences are so obviously related, should occur before the same judge. In my view one of the consequences of the way in which this particular matter has unfolded has been that the appellant in the end received a sentence which might well be regarded as unduly lenient.

Ratio Decidendi

Legal Principle Established

Established by: GRAY AND SULAN JJ

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