R v Yost - [2010] SASCFC 4

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v YOST
[2010] SASCFC 4
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Duggan and The Honourable Justice Kelly)
16 July 2010
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENCE - GRAVITY OF OFFENCE
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - SINGLE SENTENCE FOR MULTIPLE OFFENCES
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - RESPONSE TO CHARGES - PLEA OF GUILTY
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - MENTAL DISORDER
Appellant pleaded guilty to one count of murder, one count of gross indecency and nine counts of unlawful sexual intercourse - judge imposed sentence of life imprisonment with 30 year non-parole period - appeal against sentence - whether non-parole period manifestly excessive - whether separate head sentence should have been given for sexual offences - weight to be given to protection of the public - objective seriousness of offences - whether sentence wrongly included uncharged acts - whether judge gave sufficient weight to circumstances personal to appellant - whether discount for guilty pleas sufficient.
Held: appeal dismissed - no error demonstrated - judge entitled to utilise s 18A Criminal Law (Sentencing) Act 1988 (SA) to impose one head sentence - non-parole period not manifestly excessive.
Criminal Law (Sentencing) Act 1988 (SA) s 18A, 10(2), 10(4), referred to.
R v Verdins (2007) 169 A Crim R 581; R v Symonds [1999] SASC 217, discussed.
R v Wiskich (2000) 207 LSJS 431, considered.

R v YOST
[2010] SASCFC 4
Court of Criminal Appeal: Doyle CJ, Duggan and Kelly JJ

DOYLE CJ: I would dismiss the appeal. I agree with the reasons given by Kelly J. There is nothing that I wish to add.
DUGGAN J: In my view the appeal should be dismissed for the reasons given by Kelly J.
KELLY J:
Introduction
The appellant appeals a sentence imposed by a judge of this Court on 9 December 2009 for an offence of murder and a number of separate offences of a sexual nature in relation to a 15 year old girl.
The mandatory head sentence for the crime of murder is life imprisonment. For the offence of indecent assault and the offence of unlawful sexual intercourse the maximum penalties at the relevant time were eight years and ten years respectively.
The learned sentencing Judge, utilising the provisions of s 18A of the Criminal Law (Sentencing) Act 1988 (SA), imposed a non‑parole period of 30 years. He allowed three years off the non‑parole period by way of discount for the appellant’s plea of guilty.
Background
The victim of the murder was the appellant’s partner. The appellant’s plea of guilty was entered on the basis of recklessness. He admitted causing grievous bodily harm to his partner knowing that it would…

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 Yost

Details

AGLC: R v Yost [2010] SASCFC 4
Case: [2010] SASCFC 4
Decision Date: 16 July 2010

CaseChat Overview and Summary

The appeal in *R v Yost* concerned a sentence imposed by a sentencing judge on the appellant, who had pleaded guilty to one count of murder, one count of gross indecency, and nine counts of unlawful sexual intercourse. The sentencing judge imposed a life sentence with a non-parole period of 30 years. The appellant appealed this sentence, arguing that the non-parole period was manifestly excessive and that the sentencing judge had erred in several respects.

The legal issues before the Full Court of the Supreme Court of South Australia were whether the non-parole period was manifestly excessive, whether a separate head sentence should have been imposed for the sexual offences, the weight to be given to the protection of the public versus the appellant's mental disorder, and whether the sentencing judge had adequately considered the appellant's circumstances, including his plea of guilty and the inclusion of uncharged acts in the sentencing.

The Court dismissed the appeal, finding no error in the sentencing judge's decision. The Court held that the judge was entitled to utilise section 18A of the *Criminal Law (Sentencing) Act 1988* (SA) to impose a single head sentence for all the offences. The Court found that the non-parole period of 30 years was not manifestly excessive, considering the gravity and circumstances of the offences, including the violent death of the appellant's partner and the prolonged sexual offending against a minor. The Court also determined that the sentencing judge had given appropriate weight to all relevant factors, including the appellant's plea of guilty and the psychiatric report concerning his mental disorder.

Orders

Orders of the court

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Background

Background to the litigation

The learned sentencing Judge, utilising the provisions of s 18A of the Criminal Law (Sentencing) Act 1988 (SA), imposed a non‑parole period of 30 years. He allowed three years off the non‑parole period by way of discount for the appellant’s plea of guilty. Background The victim of the murder was the appellant’s partner. The appellant’s plea of guilty was entered on the basis of recklessness. He admitted causing grievous bodily harm to his partner knowing that it would probably cause death or grievous bodily harm. The assault which led to the victim’s death was not isolated. The undisputed facts were that she had been subjected to severe beatings by the appellant in the past. Not only that, the appellant had video recorded a previous episode of violence towards the victim. The cause of the victim’s death was bilateral fractures resulting in a flail chest. In addition to some of the old injuries there were 12 new rib fractures which could have been caused by punching, kicking, or multiple blows from a blunt object, or by kneeing, stomping or throwing against the wall. The victim had previously been admitted to hospital on many occasions with very serious injuries. She had previously attempted to leave the appellant but in the weeks preceding her death the appellant travelled to Mount Gambier, where she had fled, and took her back with him to Adelaide. The body of the victim was found in the appellant’s house at Para Hills in an advanced stage of decomposition on 29 January 2007. She was last seen alive on 22 January 2007. There was evidence in the appellant’s house of attempts to clean up the crime scene. The complainant in respect of the sexual offences was a 15 year old school girl. The course of conduct in relation to her persisted for a period of well over a year. She had been attending a Christian college and was struggling with an addiction to drugs. The appellant provided drugs to her and later became her sexual partner. Police found videos of sexual activity between the appellant and the complainant in the appellant’s home during the search of his house after the discovery of the body of the appellant’s partner. Issues on Appeal The learned sentencing Judge did not fix a separate head sentence for the 10 sexual offences in relation to the young girl. It appears from the transcript of submissions before the Judge that he adopted that course with the concurrence of both counsel then appearing. After allowing what he described as a modest reduction of three years for the plea of guilty in relation to both sets of offending the Judge imposed a non‑parole period of 30 years in relation to “all matters”. The appellant complains that the sentencing Judge made a number of errors which led to the imposition of a non‑parole period which is manifestly excessive. One of the principal complaints made by the appellant is that the Judge gave too much weight to the consideration of the protection of the public and far too little weight to the contents of a psychiatric report which described the appellant as having an underlying antisocial personality disorder.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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