Turnbull (a pseudonym) v The King

[2023] SASCA 121

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

TURNBULL (A PSEUDONYM) v THE KING

[2023] SASCA 121

Judgment of the Court of Appeal  (ex tempore)

(The Honourable President Livesey and the Honourable Justice Doyle)

15 November 2023

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - APPROACH TO SENTENCING PROCESS - GENERALLY

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCE - PARTICULAR CASES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD

Application for permission to appeal against sentence.

Following a trial by judge alone, the applicant was convicted of one count of maintaining an unlawful sexual relationship with his stepdaughter, contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA).

The applicant’s offending involved various acts of indecent assault and unlawful sexual intercourse, including touching her on the genital area, inserting a finger into her vagina, touching her breasts and exposing his penis to her.  The trial judge found, and sentenced the appellant on the basis that, the offending took place over a period of approximately 12 months from around the year 2000.  At the relevant time, the victim was between nine and 10 years of age.

The sentencing judge imposed a head sentence of 12 years imprisonment and fixed a non-parole period of six years and three months.

The applicant seeks permission to appeal on two grounds summarised as follows:

1.The sentencing judge erred in failing to apply the correct sentencing process of instinctive synthesis.

2.      The sentence was manifestly excessive.

Held (per the Court), refusing permission to appeal:

1.      Neither proposed ground is reasonably arguable.

Criminal Law Consolidation Act 1935 (SA) s 50, referred to.
Dinsdale v The Queen (2000) 202 CLR 321; Edmonds (a pseudonym) v The Queen [2022] SASCA 11; Hili v The Queen (2010) 242 CLR 520; Markarian v The Queen (2005) 228 CLR 357; Ndreka v The Queen [2021] SASCA 11; R v D (1997) 69 SASR 413; R v Grose (2014) 119 SASR 92; R v Morse (1979) 23 SASR 98; White (a pseudonym) v The Queen [2022] SASCA 78, considered.

TURNBULL (A PSEUDONYM) v THE KING
[2023] SASCA 121

Court of Appeal – Criminal:    Livesey P and Doyle JA

1. THE COURT (ex tempore):     Following a trial by judge alone, the applicant was convicted of one count of maintaining an unlawful sexual relationship with his stepdaughter, contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA). The maximum penalty for this offence is life imprisonment. The applicant was acquitted of a further count of the same offence in relation to his biological daughter.

2. The sentencing judge imposed a head sentence of 12 years imprisonment and fixed a non-parole period of six years and four months.

3. The applicant seeks permission to appeal on two grounds.  The first…