R v Wilson - [2008] SADC 162

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v WILSON
[2008] SADC 162
Reasons for Ruling of His Honour Judge Beazley
25 November 2008
CRIMINAL LAW
Defendant found guilty by verdict of the jury of two counts of unlawful sexual intercourse - the jury's verdicts of guilt may have been reached by different paths of reasoning - prosecution alleges that the victim was aged 13 years and 15 years respectively as at the dates of the offences - aggravating factors must be proved by the prosecution beyond reasonable doubt.
Criminal Law Consolidation Act 1935 (SA) ss 49(3) and 49(4), referred to.
R v W, GC (No 2) [2007] SASC 129; R v Olbrich (1999) 199 CLR 270; Cheung v R (2001) 209 CLR 1; R v W, GC [2007] HCA 58, considered.

R v WILSON
[2008] SADC 162
Introduction

On 16 September 2008 the jury found Gregory Colin Wilson (“the offender”) guilty of two counts of unlawful sexual intercourse with a child under the age of seventeen years, contrary to section 49(3) of the Criminal Law Consolidation Act 1935 (“the Act”).
There is a dispute as to the proper factual basis upon which the offender should be sentenced. As the trial Judge it is necessary for me to make findings of fact relevant to sentencing. Those findings must be consistent with the verdicts of the jury. It is appropriate that I set out in some detail my reasons for the findings of fact that I have made for the purpose of sentence.
Background
In the subject Information the Crown did not seek to specify the particular dates of the two offences. While the Crown case was that the two offences occurred on Christmas Day 1988 and 1990 respectively, it elected not to particularise those dates.
Instead the particulars in respect of the two counts on the Information each specified a broad period covering the victim’s age from 12 to 16 years inclusive. The victim was born on 30 May 1975, and turned 12 years on 30 May 1997 and 17 years on 30 May 1992.
Section 49(3) of the Act provides that it is a criminal offence for a person to have sexual intercourse with a person of or above the age of 12 years and under the age of 17 years.
In W, G C v R [2007] HCA 58 Hayne and Heydon J at [127], both referred to the principle expressed in Cheung v R[1] that counts on an information should be framed with all such specificity as to the time, place and circumstance as is possible and that “sexual offences against young persons may well provide examples of cases in which the criminality of an offender may be assessed differently according to the age of the victim”.
[1] (2001) 209 CR 1 at 10.
A previous trial on the subject charges[2], was the subject of an appeal to the Court of Criminal Appeal. At that time the Crown had submitted that “the offence…

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 [2008] SADC 162
Case: [2008] SADC 162
Decision Date: 25 November 2008

CaseChat Overview and Summary

In the District Court of South Australia, the defendant, Gregory Colin Wilson, was found guilty by a jury of two counts of unlawful sexual intercourse with a child under the age of seventeen years. The key legal issue was determining the appropriate factual basis for sentencing, given the jury's verdicts left some facts relevant to sentencing unresolved. The court had to decide whether the prosecution had proved the aggravating factors of the young age of the victim beyond reasonable doubt. The court considered the principles established in previous cases, emphasizing that the jury's verdict on guilt does not necessarily resolve all facts relevant to sentencing. The court found that the victim was a truthful witness regarding the acts of sexual intercourse but was unreliable about the dates of the offences. The court concluded that the prosecution had not proved the specific dates of the offences beyond reasonable doubt. Therefore, the court sentenced the offender based on the more favourable finding that both offences occurred when the victim was over the age of sixteen. This decision was consistent with the jury's verdicts and the applicable legal principles.

Orders