R v Y, DB - [2007] SASC 58

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Leave to Appeal)
R v Y, DB
[2007] SASC 58
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Gray and The Honourable Justice David)
2 March 2007
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE
Leave to appeal against sentence - applicant convicted of 15 counts of unlawful sexual intercourse against three victims aged over 12 years - whether sentence and non-parole period manifestly excessive - whether sentencing judge gave adequate weight to applicant's age - whether sentencing judge gave too much emphasis to age difference between applicant and victims - whether sentencing judge erred by assuming that certain consequences were suffered by victims' ethnic community - held, leave to appeal granted, appeal allowed - sentencing judge gave inadequate weight to applicant's age - applicant re-sentenced to 10 years imprisonment with a non-parole period of 6 years.
Criminal Law Consolidation Act 1935 s 49(3), s 56, referred to.

R v Y, DB
[2007] SASC 58
Court of Criminal Appeal: Doyle CJ, Gray and David JJ

DOYLE CJ. I would grant leave to appeal and allow the appeal. I agree with the orders proposed by David J. There is nothing that I wish to add to his reasons.
GRAY J. I agree with the orders proposed by David J. I agree with his reasons.
DAVID J. The applicant was charged on Information with 17 counts of unlawful sexual intercourse, contrary to s 49(3) of the Criminal Law Consolidation Act 1935 (“the Act”), and one count of indecent assault, contrary to s 56 of the Act. The victims were three boys who, at the time of the offending, were aged between 13 and almost 16 years and whom I will refer to as “V1”, “V2” and “V3”.
After a trial by jury in the District Court, the applicant was convicted of 15 counts of unlawful sexual intercourse. The jury was unable to reach a verdict in regard to the other two counts of unlawful sexual intercourse, and the charge of indecent assault was dismissed by direction of the trial judge.
The applicant appealed to this Court against his conviction in relation to the 15 counts of unlawful sexual intercourse, but the conviction was upheld in an earlier decision of this Court.
The applicant was sentenced to a term of imprisonment of 14 years with a non-parole period of eight years. That sentence was to commence at the expiration of a sentence of four years imprisonment which the applicant was serving in relation to similar offences committed at about the same time as the matters currently before the Court. The non-parole period for those earlier offences was one year…

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 Y, DB

Details

AGLC: R v Y, DB [2007] SASC 58
Case: [2007] SASC 58
Decision Date: 2 March 2007

CaseChat Overview and Summary

In the case of R v Y, DB, the applicant appealed against the sentence imposed upon his conviction for 15 counts of unlawful sexual intercourse with three victims aged over 12 years. The applicant contended that the sentence and non-parole period were manifestly excessive, that the sentencing judge failed to give adequate weight to his age, placed too much emphasis on the age difference between him and his victims, and erroneously assumed that certain consequences would be suffered by the victims' ethnic community. The Court of Appeal granted leave to appeal and allowed the appeal, finding that the sentencing judge had given inadequate weight to the applicant's age and re-sentenced him to 10 years imprisonment with a non-parole period of 6 years.

The legal issues before the Court of Appeal were whether the sentence and non-parole period were manifestly excessive, whether the sentencing judge gave adequate weight to the applicant's age, whether the sentencing judge gave too much emphasis to the age difference between the applicant and his victims, and whether the sentencing judge erred by assuming that certain consequences would be suffered by the victims' ethnic community. The Court of Appeal found that the sentencing judge gave inadequate weight to the applicant's age, and that the notional head sentence of two years for the offences against V1 was appropriate. However, a notional term of 12 years for the offending against V2, serious as it was, did not make enough allowance for the youth of the applicant, and a notional term of imprisonment of eight years would have been more appropriate. Similarly, a notional term of five years imprisonment for the offending against V3 suffered from the same defect, and a notional term of imprisonment of four years would be more appropriate. Accumulating the notional sentences in relation to the offending against the three victims, the notional starting point would then be 14 years. Making allowance for totality, the Court of Appeal reduced the accumulated notional head sentence to 10 years and set a non-parole period of six years. The head sentence is to be added to the sentence of imprisonment for four years which the applicant is currently serving and which was imposed on 13 December 2005, and the non-parole period of one year and six calendar months imposed on 13 December 2005 is to be reviewed and extended to a term of seven years and six calendar months.

The Court of Appeal found that the sentencing judge gave inadequate weight to the applicant's age, which was a significant mitigating factor. The Court of Appeal noted that the applicant was 18 years of age at the time of the offending against V1, and 19 years of age at the time of the offending against V2 and V3. The Court of Appeal also found that the sentencing judge placed too much emphasis on the age difference between the applicant and his victims, which was not a relevant consideration in determining the appropriate sentence. The Court of Appeal further found that the sentencing judge erred in assuming that certain consequences would be suffered by the victims' ethnic community as a result of the offences. The Court of Appeal noted that there was no evidence to support this assumption, and that it was not a relevant consideration in determining the appropriate sentence.

The Court of Appeal granted leave to appeal and allowed the appeal, re-sentencing the applicant to 10 years imprisonment with a non-parole period of 6 years. The Court of Appeal found that the sentencing judge gave inadequate weight to the applicant's age, and that the notional head sentence of 14 years was manifestly excessive. The Court of Appeal reduced the accumulated notional head sentence to 10 years and set a non-parole period of six years. The Court of Appeal also noted that the applicant was already serving a sentence of four years imprisonment with a non-parole period of one year and six months, and that the non-parole period was to be reviewed and extended to a term of seven years and six calendar months.

Orders

Orders of the court

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Background

Background to the litigation

The grounds of appeal are that:·both the head sentence and the non‑parole period were manifestly excessive;·the sentencing judge failed to give adequate weight to the applicant’s age;·the sentencing judge placed too much emphasis on the age difference between the applicant and his victims; and·the sentencing judge erred in assuming that certain consequences would be suffered by an ethnic community as a result of the offences relating to two of the victims who were members of that community.Background Facts The applicant was convicted of two counts of unlawful sexual intercourse upon V1, relating to acts of giving and receiving fellatio. These acts occurred in January 2003, when V1 was aged 14 years and 6 months. At the time of the offending the applicant was 18 years of age. The applicant first met V1 through a church group. The offences took place at the applicant’s house before they were both to be picked up to attend a Christian concert. There was evidence at trial that for about a week prior to the offending the applicant had been grooming V1 for what was to happen by playing games involving his penis. The applicant was also convicted of nine counts of unlawful sexual intercourse upon V2, including seven acts of fellatio, one count of giving anal sexual intercourse and one count of receiving anal sexual intercourse. This offending occurred between 1 April 2002 and 23 June 2004 and related to three discrete occasions. In evidence V2 told the jury that similar sexual behaviour had occurred between the two of them approximately 50 times and was not confined to the offences charged before the court. V2 was born overseas and came to Australia with his mother, two older brothers and younger sister when he was six or seven years of age. The applicant met V2 through a support group that existed in Adelaide for members of his ethnic community. The applicant was convicted of four counts of unlawful sexual intercourse upon V3. V3 is the older brother of V2. Three counts related to acts of fellatio and one count involved anal sexual intercourse. These offences occurred on two discrete occasions between 1 September and 11 November 2003, when V3 was 15 years of age and the applicant was 19 years of age. The applicant also met V3 through the support group for members of his ethnic community in Adelaide and introduced him to games which led to the sexual behaviour for which the applicant was convicted. After a trial in December 2005, the applicant was convicted of one count of attempted unlawful sexual intercourse with a child under 12 years of age, contrary to s 49(1) and s 270A of the Act, and two counts of unlawful sexual intercourse with a child under 12 years of age, contrary to s 49(1) of the Act. Those offences occurred between September 2002 and November 2003 and related to a female victim. The applicant was sentenced to a term of imprisonment of four years with a non-parole period of one year and six months. As can be seen from the dates of the prior offending and the offending presently before the Court, there is some overlapping in relation to the dates. In fact the applicant was on bail in relation to the offending against V1 when he committed the offences against the other three victims. Other features of aggravation were the fact that he used community organisations as a means of cultivating his victims. The offences were also committed over a significant period of time and, in relation to V2 especially, were part of a continuous course of behaviour. The Sentence

Evidence

Evidence Before The Court

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Decision

Reasons for decision

DOYLE CJ GRAY J DAVID J

I am of the view that an ultimate sentence of 14 years imprisonment with a non-parole period of eight years with a head sentence cumulative upon the term he is already serving and the non-parole period being increased to nine years and six months does not make enough allowance for his youth. For that reason, I find that the sentencing process has miscarried.Conclusion I would grant leave to appeal and allow the appeal. In my view the notional head sentence of two years for the offences against V1 is appropriate. However a notional term of 12 years for the offending against V2, serious as it was, does not make enough allowance for the youth of the applicant. I consider that a notional term of imprisonment of eight years would have been more appropriate. Similarly a notional term of five years imprisonment for the offending against V3 suffers from the same defect and I consider that a notional term of imprisonment of four years would be more appropriate. Accumulating the notional sentences in relation to the offending against the three victims, the notional starting point would then be 14 years. Making allowance for totality, I would reduce the accumulated notional head sentence to 10 years and set a non‑parole period of six years. The head sentence is to be added to the sentence of imprisonment for four years which the appellant is currently serving and which was imposed on 13 December 2005, and the non-parole period of one year and six calendar months imposed on 13 December 2005 is to be reviewed and extended to a term of seven years and six calendar months.

Ratio Decidendi

Legal Principle Established

Established by: DOYLE CJ, GRAY J, DAVID J

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