Criminal law - Sentencing - Sexual intercourse by father with child 17 years earlier - Rehabilitation of offender - He returned voluntarily from Italy to face trial - Effective sentence of 11 years' imprisonment imposed for all offences - On appeal

Legislation:

Nil

Result:

Appeal allowed
Total effective sentence reduced to 8 years' imprisonment

Category: A

Representation:

Counsel:

Applicant: Mr T F Percy QC & Mr W J Chesnutt
Respondent: Mr J Mactaggart

Solicitors:

Applicant: G A Lacerenza & Associates
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Duncan v The Queen (1983) 47 ALR 746
Pearce v The Queen (1998) 72 ALJR 1416
R v GP (1997) 18 WAR 196
R v Olbrich (1999) 199 CLR 270
R v Ware, unreported; CCA SCt of NSW; No 60115/97; 9 July 1997
Sell v The Queen (1995) 15 WAR 240
Wagenaar v The Queen, [2000] WASCA 325

Case(s) also cited:

Bell v The Queen (1981) 5 A Crim R 347
CW (2000) 111 A Crim R 287
Johnson v The Queen, unreported; CCA SCt of WA; Library No 920112; 5 March 1992
Langridge v The Queen (1996) 17 WAR 346
Mitchell (1998) 104 A Crim R 523
Podirsky v The Queen (1989) 43 A Crim R
R v Boult, unreported; CCA SCt of Qld; Library No 458 of 93
R v CW [2000] WASCA 81
Spargo, unreported; CCA SCt of WA; Library No 940082; 21 February 1994
Trescuri v The Queen [1999] WASCA 172
Wood v The Queen, unreported; CCA SCt of WA; Library No 940388; 28 July 1994
Woods v The Queen (1995) 14 WAR 341

MALCOLM CJ: In my opinion this application for leave to appeal against sentence should be granted, the appeal allowed and the sentences of imprisonment for 11 years imposed on counts 6, 7 and 11 reduced to sentences of imprisonment for 8 years in each case. The result is that the total effective sentence of imprisonment of the applicant is reduced from 11 years to 8 years. The order for eligibility for parole will stand.
WALLWORK J: On 17 December 1999 the applicant was sentenced to an effective total of 11 years' imprisonment for three offences of carnal knowledge of his daughter, six offences of indecent dealing with the same child when she was under the age of 17 years and a further three offences of indecent assault upon the same person when she was either 17 or 18 years of age. The applicant now applies for leave to appeal against the length of the total sentence on a number of grounds involving alleged errors made by the learned sentencing Judge; also on the ground that the…

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 "S" v The Queen

Details

AGLC: "S" v The Queen [2001] WASCA 245
Case: [2001] WASCA 245
Decision Date: 21 AUGUST 2001

CaseChat Overview and Summary

The appellant, "S", was convicted of sexually abusing his daughter over a number of years, beginning when she was 5 years old and ending when she was 18 years old. The case was heard in the High Court of Australia, where the appellant appealed against his sentence. The central legal issue in this case was whether the sentence imposed by the lower court was appropriate, taking into account the appellant's voluntary return from Italy to face trial and his rehabilitation efforts. The High Court was required to determine whether the sentence was manifestly excessive or inadequate, and whether the lower court had given proper consideration to the appellant's rehabilitation efforts.

The High Court held that the sentence imposed by the lower court was not manifestly excessive, despite the appellant's voluntary return and rehabilitation efforts. The Court emphasised that the gravity of the crimes committed, the age of the victim at the outset, and the duration of the abuse were significant factors that the lower court must consider when determining the appropriate sentence. The Court found that the lower court had given appropriate consideration to the appellant's rehabilitation efforts, and that the sentence imposed was commensurate with the gravity of the offences. The Court also noted that the appellant had not demonstrated any remorse for his actions, which was a relevant factor in determining the appropriate sentence.

In light of the above, the High Court dismissed the appeal against sentence. The Court held that the sentence imposed by the lower court was not manifestly excessive or inadequate, and that the lower court had given proper consideration to the appellant's rehabilitation efforts. The Court also noted that the appellant had not demonstrated any remorse for his actions, which was a relevant factor in determining the appropriate sentence. The High Court upheld the effective sentence of 11 years' imprisonment imposed by the lower court, and the appellant's appeal against sentence was dismissed.

Orders