Supreme Court of South Australia
(Court of Appeal: Criminal)
WHITE (A PSEUDONYM) v THE QUEEN
[2022] SASCA 78
Judgment of the Court of Appeal
(The Honourable Justice Lovell, the Honourable Justice Bleby and the Honourable Justice David)
11 August 2022
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES - CONCURRENT SENTENCES
CRIMINAL LAW - SENTENCE - PURPOSE OF SENTENCE - DETERRENCE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TOTALITY - GENERAL PRINCIPLES
CRIMINAL LAW - SENTENCE - INTERPRETATION OF SENTENCING PROVISIONS
The applicant pleaded guilty to four counts of Rape and one count of Spiking of Food or Beverages. The victim of his offending was his former wife. The offending, which occurred over a period of approximately 15 months, involved the applicant drugging the complainant's night-time beverages before engaging in non-consensual sexual acts with her while she slept.
The applicant was sentenced to 14 years and three months' imprisonment. As a serious repeat offender, he was liable to receive a non-parole period four-fifths of the head sentence imposed.
The applicant seeks permission to appeal against sentence on four grounds; namely, that the sentencing Judge erred in his consideration of personal and general deterrence; that the sentencing Judge failed to consider and apply totality; that the sentence imposed was manifestly excessive; and that the sentencing Judge erred when exercising his discretion pursuant to s 54(1) of the Sentencing Act 2017.
Held, per the Court, granting permission to appeal on all grounds but dismissing the appeal:
1. The sentencing Judge's use of the word "acknowledge" rather than "accept" in considering submissions as to personal deterrence and community protection does not establish a process error. In context, it is clear his Honour accepted the relevant submission.
2. The failure to mention the principle of totality does not in itself indicate that the sentencing Judge failed to consider the topic, nor does it establish a process error.
3. The applicant's offending cannot be described as a single course of conduct. The degree of concurrency applied by the sentencing Judge was appropriate.
4. The sentence imposed by the sentencing Judge was not manifestly excessive.
5. The three purposes expressed in s 54(2)(a) of the Sentencing Act 2017 are not mutually exclusive; the weight to be given to any particular factor or purpose depends on the circumstances before the court.
6. The personal circumstances of the applicant are not so exceptional as to outweigh the paramount consideration of protecting the safety of the community and personal and general deterrence for the purposes of s 54(2)(a) of the Sentencing Act 2017.
Sentencing Act 2017 (SA) s 54(2)(a), s 54(2)(b), s 44, s 26, s 12; Criminal Law (Sentencing) Act 1988 (SA) s 18A; Criminal Law Consolidation Act 1935 (SA) s 310; Prisons Act 1936 (SA) s 24(1); Prisons Act 1869 (SA) s 32; Correctional Services Act 1982 (SA)…
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- White (a pseudonym) v The Queen [2022] SASCA 78
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- [2022] SASCA 78
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CaseChat Overview and Summary
The central legal issue before the appellate court was whether the sentencing judge erred in exercising their discretion by refusing to make the declaration under section 54 of the Sentencing Act 2017 (SA). This declaration would have exempted the applicant from the mandatory minimum non-parole period applicable to serious repeat offenders.
The court reasoned that the sentencing judge was required to consider the applicant's request for a declaration under s 54 of the Act. The judge's refusal to make the declaration was based on the applicant's status as a serious repeat offender and the nature of the offending, which involved drugging his wife and engaging in sexual acts without her consent. The court affirmed that the sentencing judge had properly applied the relevant provisions of the Sentencing Act and had not erred in their exercise of discretion.
Consequently, the appellate court dismissed the applicant's appeal. The sentence imposed, including the non-parole period calculated as four-fifths of the head sentence, was upheld.
Orders
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Background
Background to the litigation
Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
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