Benfell v The King - [2024] SASCA 16

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
BENFELL v THE KING
[2024] SASCA 16
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice Doyle and the Honourable Justice David)
29 February 2024
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS
CRIMINAL LAW - SENTENCE - PURPOSE OF SENTENCE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - TRESPASS TO LAND
This is an appeal against sentence.

The appellant was found guilty by a jury of one count of aggravated serious criminal trespass in a place of residence, contrary to s 170(1) of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’), and two counts of rape, contrary to s 48(1) of the CLCA, committed on 9 April 2018. Each offence carries a maximum penalty of life imprisonment.
On 9 April 2018, the appellant unlawfully entered the victim’s residence, where she lived with her two housemates, and raped her twice in her bedroom. The appellant was aged 23 years old at the time of the offending, and 26 years old at the time of sentence. He had relevant prior convictions, including for the offence of serious criminal trespass. He was on parole at the time of the offending.
The sentencing Judge imposed a single sentence of 15 years' imprisonment pursuant to s 26 of the Sentencing Act 2017 (SA) ('the Sentencing Act'). There was an unexpired balance of parole of 13 days, which was ordered to be served cumulatively upon this sentence, resulting in a final head sentence of 15 years and 13 days' imprisonment. As the appellant fell to be sentenced as a serious repeat offender, a non-parole period of 12 years and 11 days was fixed. The sentence was ordered to commence on 29 December 2020.
The sole ground of appeal is a complaint of manifest excess. An extension of time to file the notice of appeal, and permission to appeal, was granted on 19 December 2023.
Held, per the Court, dismissing the appeal:
1.While the sentence fell within the upper bounds of the permissible range, it was not manifestly excessive. It was an appropriately severe sentence given the gravity of the offending, and notwithstanding the appellant’s youth.
2.The offending called for a significant sentence to meet the demands of both general and personal deterrence, and to accord paramountcy to the protection of the safety of the community.

Criminal Law Consolidation Act 1935 (SA) ss 48(1), 170(1); Sentencing Act 2017 (SA) s 26, referred to.
O’Connor v The Queen [2020] SASCFC 41; R v Driver (2011) 111 SASR 245; R v Knight [2016] SASCFC 40, distinguished.
Azzopardi v The Queen; Baltatzis v The Queen; Gabriel v The Queen (2011) 35 VR 43; Heuston v R (1993) 171 LSJS 479; R v Mills [1998] 4 VR 235, discussed.
Bubner v The Queen (2022) 99 MVR 94; Director of Public Prosecutions (DPP) v Lawrence (2004) 10 VR 125; Director of Public Prosecutions (DPP) v McCloy [2006] VSCA 99; Director of Public Prosecutions (DPP) v SJK; DPP v Gas [2002] VSCA 131; Hilfy v The Queen [2020] SASCFC 72; Hili v The Queen (2010) 242 CLR 520; House v The King (1936) 55 CLR 499; IE v R (2008) 183 A Crim R 150; Johnson v The Queen (2004) 78 ALJR 616; Kohler v Police (2013) 63 MVR 507; Markarian v The Queen (2005) 228 CLR 357; Morton v The King [2023] VSCA 175; R v Armstrong [2002] SASC 174; R v Ball, Bunce and Callis (1993) 169 LSJS 293; R v Baltensperger (2006) 96 SASR 34; R v Bell (1999) 30 MVR 115; R v Bondarenko [2015] SASCFC 42; R v Coleman (2001) 122 A Crim R 230; R v Edwards [2011] SASCFC 33; R v Elliott (2001) 121 A Crim R 254; R v M, AG (2013) 116 SASR 219; R v McGaffin (2010) 206 A Crim R 188; R v Siozios [2004] SASC 299; R v Smith [2005] SASC 212; R v Sumner & Sumner [2007] SASC 376; R v Tran (2002) 4 VR 457; R v Ung [2002] VSCA 101; R v Walkuski [2010] SASC 146; R v Wright [1998] VSCA 84, considered.

BENFELL v THE KING
[2024] SASCA 16
Court of Appeal – Criminal: Livesey P, Doyle and David JJA

THE COURT: On 25 September 2020, the appellant was found guilty by a jury of one count of aggravated serious criminal trespass in a place of residence, contrary to s 170(1) of the Criminal Law Consolidation Act 1935 (SA) (the ‘CLCA’) and two counts of rape, contrary to s 48(1) of the CLCA. Each offence attracts a maximum penalty of life imprisonment.
The sentencing Judge imposed a single sentence of 15 years’ imprisonment pursuant to s 26 of the Sentencing Act 2017 (SA) (‘the Sentencing Act’). There was an unexpired balance of parole, being 13 days, which was ordered to be served cumulatively upon this sentence, resulting in a final head sentence of 15 years and 13 days’ imprisonment. As the appellant fell to be sentenced as a serious repeat offender, a non-parole period of 12 years and 11 days was fixed. The sentence was backdated to commence on 29 December 2020.
The sole ground of appeal is that the sentence is manifestly excessive. An extension of time to file the notice of appeal was granted on 19 December 2023, as was permission to appeal.
For the following reasons, the appeal should be dismissed.
The circumstances of the offending
On the evening of 9 April 2018, the occupant of a home, on the same street as the victim’s residence, was in her bedroom with her partner. The appellant approached her bedroom window and began to speak with her at around 10:30pm or 11:00pm. She could not hear him properly, so he motioned for her to go around to the front. He asked her for directions for a street which did not exist before walking off.
That same night, the victim was at her home on the same street. She resided with two friends. All three occupants were home that night as well as the victim’s partner, who had come to visit. At around 11:30pm, the victim walked her partner outside to say goodbye. They were engaged in conversation outside for about 20 minutes before the victim’s partner eventually left. Neither the victim nor her partner recalled seeing anyone else outside at the time. She said goodbye and went back inside the house through the front door.
At some point, the appellant entered the victim’s residence. The back door had been mistakenly left unlocked. He removed his shoes and placed them in the unlit front lounge room. While inside the lounge room, the appellant formed the intention to rape the victim.
Once the victim had showered and fallen asleep, the appellant entered her bedroom, laid down beside her and touched her. He turned her by her shoulder and started kissing her. The victim was in a deep sleep and thought that her partner had returned. The appellant removed the victim’s underwear and inserted his fingers into her vagina forcefully, causing her pain. This constituted the first act of rape. After a couple of seconds, the appellant inserted his penis into the victim’s vagina, thrusting aggressively and forcefully while continuing to kiss her. He placed pressure on her neck using his hand or forearm for a couple of seconds, although she was able to breathe. During the offending, the victim noticed the appellant’s head was shaved. Still believing that he was her partner, she asked him, ‘Why did you do that?’ The appellant did not respond but continued with sexual intercourse. The appellant then stopped, got off the bed, and walked to the other side of the bed. He positioned his penis to be near the victim’s face, and she understood that the male (whom she still believed was her partner) wanted her to perform fellatio on him. Instead, she rolled onto her stomach and the appellant inserted his penis into her vagina from behind. He thrust a couple of times before ejaculating on her back. This constituted the second act of rape. He used a t-shirt to wipe the ejaculate off her back. It was at this point that the victim realised the male was not her partner as this was not something he had done before.
The victim got out of bed to turn the light on, but the appellant grabbed her arm forcibly and threw her onto the bed yelling, ‘Don’t’. She got up again and pushed the appellant away before turning on the light. She then saw the appellant for the first time and realised that he was a stranger. She screamed at him before running to her housemate’s bedroom to seek assistance. The appellant casually walked out of the victim’s bedroom and said, ‘What do you mean? You invited me in off the street?’ The victim replied, ‘What are you talking about? Get out of my home.’ Her housemates also started yelling at the appellant, telling him to get out of the house. The appellant maintained his false account of being invited inside before eventually leaving the house.
The trial
The appellant denied the charges and gave evidence in his own defence at trial. He said he met the victim at the Arkaba Hotel about 10 days prior to the offending. He said she gave him her number, and he attempted to contact her on two occasions prior to the offending. He said on the night of the offending, he was again at the Arkaba Hotel, and he called the victim. She invited him to her house, and he wrote her address down on a Keno ticket. He said he entered her address on his phone and walked in the direction of her house. However, on the way to her home, his phone went flat, so he asked a lady if she could check the address. She told him it was probably down the road they were standing on. He walked down the road and saw the victim waiting out the front of her house. They spoke, and she invited him inside. The appellant said they had consensual sexual intercourse before she told him he had to leave.
The appellant was found guilty of all offences by verdict of a jury.
During sentencing submissions, the appellant admitted that he gave false evidence at trial and admitted the offending. He offered an apology for his conduct. As to the circumstances of the offending, he said:
I had no intention or reason, I did not know what I had done until I was arrested three days later. I'm not even sure how it happened. All I know is I've never thought of doing such a thing. What I do know is I did not intend to rape anyone.
The appellant’s personal circumstances
The appellant was 23 years old at the time of the offending, and 26 at the time of sentence. His parents separated when he was one year old, and he was brought up by his mother who had a longstanding drug problem. He has three half‑brothers and one half-sister from his mother, all of whom are younger than him, and two half-brothers from his father with whom he does not have much contact. He was largely responsible for the parenting of his younger siblings. He decided to move in with his father at the age of 13.
The appellant attended four different primary schools as his mother frequently changed residences. He then went to two different high schools. After leaving high school, he started an apprenticeship as a butcher with Barossa Fine Foods before he transferred to Gawler River Butchers. He completed his apprenticeship when he was 20 years old. He has worked as a butcher for various businesses.
The appellant’s relationship with his mother is now strained. She will have nothing to do with him as a result of this offending, nor allow his siblings to have contact with him. He has limited contact with his father.
As to his personal relationships, from the ages of 16 to 21, he was involved in a committed relationship. After that relationship ended, he became increasingly reliant on illicit drugs, and his life began to deteriorate. He committed various drug-related offences.
In relation to the appellant’s antecedents, in September 2017, he was sentenced to imprisonment for one year, nine months and two weeks, with a non‑parole period of seven months. This sentence arose from various offences committed between February 2016 and June 2017, including two counts of serious criminal trespass (residential); three counts of serious criminal trespass (non‑residential); one count of trespass in a residence; one count of attempted serious criminal trespass (non-residential); and one count of attempted serious criminal trespass (residential).
The appellant committed the present offending while on parole. On 30 August 2018 (subsequent to this offending), the appellant’s parole was cancelled for proven breaches of his conditions of release that required he abstain from illicit drug use and comply with a curfew. Those breaches occurred on 23 April 2018.
On 17 September 2019, the appellant was again sentenced for an offence of serious criminal trespass (residential) committed in March 2018 (prior to the present offending). He was sentenced to imprisonment for one year, seven months and 18 days, with a non-parole period of eight months.
The appellant has recently revealed that he suffered sexual abuse when he was about eight or nine years old, during a brief placement into foster care when his mother was unable to care for him. He said that he was raped on two occasions by a person known to his foster carer. His mother did not believe him when he disclosed the abuse to her. Since being remanded in custody, the appellant has engaged in counselling with Relationships Australia in relation to his childhood sexual abuse. Prior to that time, the appellant has never received psychological nor psychiatric treatment.
Sentence
As to the factual basis for sentence, the sentencing Judge was satisfied that the appellant’s ‘presence in the street that night was not some mere chance event’ and that the appellant was present there ‘in a premeditated way’ and ‘had an intention to enter a home in that area if the opportunity presented itself.’ His Honour found that the appellant entered the victim’s premises either through the front door, or more likely through the mistakenly unlocked back door, and concealed his presence from the occupants of the premises in the lounge room. There, he formed an intention to rape the victim. He removed his shoes, waited for her to finish her shower and return to her bedroom and fall asleep. After that time, he entered her bedroom and committed the two offences of rape.
The sentencing Judge had regard to the victim impact statements. His Honour said:
I think it is impossible to completely describe the terror, pain, humiliation or effect that has followed as a result of your action. You violated the sanctity and safety of the home of these women. You put all of them at risk. Your actions were premeditated. You entered their home, you waited in the dark until the victim went to bed. After a sufficient time had elapsed you went into her room and raped her in the most egregious and humiliating way. Then your actions terrorised the other members of the household. Your actions have had a profound and lasting effect upon them and their lives.
The sentencing Judge had express regard to the appellant’s personal circumstances, including his age of 26 at the time of sentence. His Honour considered the appellant’s antecedent history, contrition and prospects of rehabilitation and concluded that his risk of recidivism was ‘moderate to high’.
His Honour then referred to the primary purpose of sentencing, that being the protection of the safety of the community, and the need for the sentence to meet the demands of both general and personal deterrence, before imposing the sentence outlined earlier.
Manifest excess
The appellant complains that the sentence was manifestly excessive; that is, it was outside the permissible range for this offence and offender and was unreasonable or plainly unjust. In particular, he contends the sentencing Judge did not give sufficient weight to his youth and prospects of rehabilitation. It is to be immediately recognised that in the exercise of the sentencing discretion, it is not an error for a sentencing judge to place more or less weight on a particular circumstance than the appellate court would have. That is not to preclude the relevant circumstance from forming part of the factual matters which underpin a complaint that a sentence is manifestly excessive. As we understand the appellant’s submissions, this is what is contended for in this case.
The principles of manifest excess are well established. The determinative question is whether, after considering all the circumstances relevant to sentence, and notwithstanding that no specific error of reasoning may be apparent, the sentence imposed was unreasonable or plainly unjust.[1] In answering that question, it is necessary for an appeal court to consider all matters relevant to the determination of sentence, including the maximum penalty for the relevant offending, where the objective circumstances of the offending sit in the scale of seriousness of crimes of that type, and the personal circumstances of the offender. Ultimately, however, manifest excess is a conclusion that may not permit of lengthy exposition.[2]
[1] House v The King (1936) 55 CLR 499 at 504-505 per Dixon, Evatt and McTiernan JJ; Markarian v The Queen (2005) 228 CLR 357 at [25] per Gleeson CJ, Gummow, Hayne and Callinan JJ; Hilfy v The Queen [2020] SASCFC 72 at [36]-[38] per Nicholson J (with whom Peek and Stanley JJ agreed); Bubner v The Queen (2022) 99 MVR 94 at [31] per Livesey P, Doyle and David JJA.
[2] Hili v The Queen (2010) 242 CLR 520 at [59] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.
This Court has consistently held that there is no sentencing standard for the offence of rape. This is because the circumstances in which an offence of rape is committed, and the personal circumstances of offenders, are so varied that it is not possible or appropriate to indicate any range of sentence. Nonetheless, the appellant contends that R v Knight[3] (‘Knight’) is authority for the proposition that a sentence of 14 years or higher should not be imposed for an offence of rape unless it involved significant violence in addition to the sexual violence inherent in the rape itself.
[3] [2016] SASCFC 40.
In Knight, the sentencing Judge adopted a starting point of 14 years for two counts of rape and one count of burglary. The defendant complained that the sentence was manifestly excessive. In dismissing the appeal, Kourakis CJ (with whom Blue and Doyle JJ agreed) reviewed a wide range of sentences imposed for the offence of rape.[4] After considering the head sentences imposed for offences of varying degrees of seriousness committed by offenders with an array of different personal circumstances, his Honour concluded:[5]
Having regard to the sentences to which I have referred, it is apparent that there is a wide sentencing range for offences of this kind. However, sentences as high as 14 years have not been imposed unless a weapon has been used or the offending has involved protracted violence over and above the sexual violence of the rape itself.
Nonetheless so wide is the range of sentences for offences of this kind, I have concluded that the sentence imposed is not manifestly excessive.
[4] R v Ball, Bunce and Callis (1993) 169 LSJS 293; Heuston v R (1993) 171 LSJS 479; R v Coleman (2001) 122 A Crim R 230; R v Elliott (2001) 121 A Crim R 254; R v Armstrong [2002] SASC 174; R v Siozios [2004] SASC 299; R v Smith [2005] SASC 212; R v Baltensperger (2006) 96 SASR 34; R v Sumner & Sumner [2007] SASC 376; R v Walkuski [2010] SASC 146; R v Edwards [2011] SASCFC 33; R v M, AG (2013) 116 SASR 219; R v Bondarenko [2015] SASCFC 42.
[5] R v Knight [2016] SASCFC 40 at [68]-[69] per Kourakis CJ (with whom Blue and Doyle JJ agreed).

Contrary to the appellant’s contention, Knight is not authority for the proposition that a sentence of 14 years or higher should not be imposed for the offence of rape unless it involves significant violence. Rather, the Chief Justice, after reviewing a range of sentences imposed in many varied circumstances, acknowledged that a sentence of 14 years or higher had not been imposed by the courts unless a weapon was used by the offender, or the offending involved protracted violence over and above the sexual violence of the offence of rape itself. Ultimately, however, the Chief Justice concluded that the range of sentences for offending of this kind is so wide, the sentence of imprisonment of 14 years was not manifestly excessive. The Court allowed the appeal on the basis that the sentencing Judge had erred in failing to consider the evidence of a forensic psychologist. On resentencing, the Court adopted a starting point of 12 years.
The appellant also submits that the objective circumstances of the offending in Knight are more serious than the offending in this case, yet the starting point adopted by the sentencing Judge in the present case is higher than in Knight. This, it is said, reveals an outcome error. Both matters involved an offender unlawfully entering a residential premises, at night, and committing two counts of rape (involving digital and penile penetration) upon the female occupant. In both cases, the defendant was sentenced on the basis that he did not enter the premises with an intention to rape the victim. However, to our mind, the appellant’s offending in the present case is objectively more serious than in Knight. The defendant in Knight was sentenced on the basis that the rapes were opportunistic and secondary to an act of robbery. Here, the rapes were premeditated (notwithstanding that his intention was formed after he entered the premises). While it is true that in Knight, the defendant told the victim he had a knife, she never saw a knife and one was not used in the attack.
In the present case, while there was no threat of violence, there were other egregious aspects to the offending which rendered it serious, albeit in a different way. The appellant offended by stealth – he concealed his presence in the victim’s home, waited until she had showered and fallen asleep, and committed the offences knowing that the victim believed she was having sexual relations with her boyfriend. The offending was also characterised by brazenness. When confronted by the victim and her housemates, and upon leaving the bedroom, he did not hurry or flee but casually tied his shoes and said, ‘What do you mean? You invited me off the street?’. The brazen nature of the appellant’s unlawful conduct has had an ongoing and detrimental impact upon the victim’s ability to trust others. From the victim’s perspective, it was a significant aspect of the horror of the offending.
A direct comparison between the offending in Knight, on the one hand, with the offending in the present case, on the other, does not support the appellant’s contention that the sentence is manifestly excessive. It is also noteworthy that, unlike the defendant in Knight who had limited prior offending, the appellant in the present case has a substantial history of offending and interactions with the criminal courts, including being on parole at the time of his offending.
As discussed earlier, Kourakis CJ in Knight conducted a comprehensive review of sentences for rape. It is not necessary to repeat that analysis except to reiterate the Chief Justice’s observations that there is a broad sentencing range for offences of this kind, which reflects the many different circumstances in which the offence has been committed, and the various personal circumstances of defendants.
Since Knight, this Court has considered another sentence for rape committed in comparable circumstances to the present matter. In O’Connor v The Queen[6] (‘O’Connor’) an application for permission to appeal against sentence was refused. Following a trial by jury the defendant was convicted of three counts of rape and one count of aggravated serious criminal trespass. He was sentenced to imprisonment for 16 years with a non-parole period of 11 years.
[6] [2020] SASCFC 41.
In O’Connor, the offences were committed in 2003, but the defendant was not arrested until 2018 (after his DNA matched DNA left at the crime scene). The victim had been at a bar where she was observed by the defendant. They were not known to each other. The victim left the bar and went home and to bed. She woke to find the defendant standing next to her bed holding a knife. She grabbed at the knife and sustained a hand injury. The defendant bound the victim’s hands and feet and blindfolded her, whereupon he raped her three times by forcing her to have penile/vaginal sexual intercourse and perform an act of fellatio on him. The defendant had limited prior criminal convictions. After the offending in 2003, and before his arrest in 2018, he was convicted of three offences involving the possession of a weapon, but he had not otherwise reoffended. There was, however, little evidence of positive rehabilitation. The Court refused permission to appeal. Kourakis CJ said:[7]
The sentence imposed is within the range of sentences imposed for offences of this kind. Sentences will vary according to the particular circumstances of the offence and according to the different weight which sentencing judges are, within the proper ambit of their discretion, entitled to give competing relevant considerations.
[7] O’Connor v The Queen [2020] SASCFC 41 at [12] per Kourakis CJ.
It is to be accepted that the offending in O’Connor was objectively more serious than in the present case as it involved the use of a knife to effect the rape, and the victim sustained a knife injury. However, the sentencing Judge also imposed a higher head sentence of 16 years compared to the 15-year head sentence imposed in this case. Moreover, the defendant’s personal circumstances in O’Connor were more favourable than those of the appellant – he was not on parole at the time of the offending, had little criminal history, and had not reoffended in a similar way in the 15 years following his offending. Contrary to the appellant’s submissions, O’Connor does not provide any support for the appellant’s complaint of manifest excess.
In the present case, the offending was not accompanied by the use of a weapon or any protracted physical violence outside of the sexual violence inherent in the rapes themselves. However, there were other serious features to the circumstances of the offending, including:
·The appellant was not on the victim’s street for an innocent purpose.
·The appellant entered the premises knowing of another person’s presence, and once there, formed the intention to rape.
·As discussed earlier, the offending was premeditated (once inside the home) and the appellant had the opportunity to reconsider before offending.
·The offending was characterised by stealth, deception and brazenness. As discussed earlier, the appellant’s deceit continues to have a detrimental effect on the victim and the other occupants of the house.
·There was a level of physical force involved in the rape itself. The appellant penetrated the victim digitally and with his penis in an ‘aggressive’ and ‘forceful’ manner, held the victim down by her neck while engaging in sexual intercourse with sufficient force to frighten her, and grabbed her by the arm and threw her onto the bed to prevent her turning on the light.
·The offences of rape were committed in the victim’s residence; the appellant violated the sanctity and security of her home, and that of her housemates, who were also young women terrified by the attack.
·The offending has had terrible consequences for the victim, and her two housemates and the victim’s partner. The victim impact statements reveal the emotional and psychological impact of the offending on them.
These matters, together, place the appellant’s offending at the higher end of the scale of objective seriousness. As much was properly conceded by the appellant’s counsel during the appeal hearing.
The appellant also submits that the length of the sentence of imprisonment imposed by the sentencing Judge reflects a failure by his Honour to give sufficient weight to his youth and scope for rehabilitation. It has been recognised by the courts that youth is usually regarded as a mitigating factor in sentencing. Young offenders may be more prone to ill-considered conduct because they do not always fully appreciate the nature, seriousness and consequences of the criminality involved in their conduct. Furthermore, there is often potential for young offenders to be redeemed and rehabilitated.[8]
[8] R v McGaffin (2010) 206 A Crim R 188 at [69] per White J (with whom Doyle CJ agreed); Kohler v Police (2013) 63 MVR 507 at [23] per White J; Morton v The King [2023] VSCA 175 at [44]-[48] per Walker JA.
In that regard, the appellant relies on R v Driver[9] (‘Driver’). In that case, the defendant was sentenced to imprisonment for 16 years with a non-parole period of 10 years. He appealed against this sentence. The defendant was 18 years old at the time of the offending with no prior convictions and limited cognitive capacity. The offending for which he was sentenced included multiple offences committed over a period of three months. The defendant violently broke into the victim’s home and kicked in her bedroom door. He pushed her onto the bed and forced her to perform two acts of fellatio upon him. He then forced her onto the ground where he engaged in an act of penile/vaginal sexual intercourse with her.
[9] (2011) 111 SASR 245.
For the offences of aggravated serious criminal trespass and three counts of rape, committed on one occasion, the sentencing Judge adopted a starting point of 14 years’ imprisonment, reduced to 12 years on account of his guilty pleas. The Court of Criminal Appeal held the sentence was manifestly excessive, allowed the appeal and re-sentenced the appellant to 11 years’ imprisonment with a non-parole period of five years and six months. The Court observed that youth is generally treated as an important mitigatory factor and highlighted the importance of the rehabilitation of a young offender. The Court referred, with approval, to the principles in R v Mills[10] (‘Mills’). In Mills, the Victorian Court of Appeal stated the following general propositions about sentencing youthful offenders:[11]
i.Youth of an offender, particularly a first offender, should be a primary consideration for a sentencing court where that matter properly arises.
ii. In the case of a youthful offender rehabilitation is usually far more important than general deterrence. This is because punishment may in fact lead to further offending. Thus, for example, individualised treatment focusing on rehabilitation is to be preferred. (Rehabilitation benefits the community as well as the offender.)
iii.A youthful offender is not to be sent to an adult prison if such a disposition can be avoided, especially if he is beginning to appreciate the effect of his past criminality. The benchmark for what is serious as justifying adult imprisonment may be quite high in the case of a youthful offender; and, where the offender has not previously been incarcerated, a shorter period of imprisonment may be justified. (This proposition is a particular application of the general principle expressed in s 5(4) of the Sentencing Act.)
[10] [1998] 4 VR 235.
[11] R v Mills [1998] 4 VR 235 at 241 per Batt JA (with whom Phillip CJ and Charles JA agreed).
The appellant submits that the sentencing Judge did not properly apply the principles enunciated in Mills, which were endorsed in Driver. It is important to note at the outset that the defendant in Driver was aged 18 and significantly younger than the appellant, had no prior convictions and suffered from serious cognitive limitations which reduced his moral culpability for the offending.
Importantly, subsequent to Mills, the Victorian Court of Appeal has recognised that there are circumstances where the gravity of the offending diminishes the relevance of youth as a mitigating factor.[12] In Azzopardi v The Queen; Baltatzis v The Queen; Gabriel v The Queen[13] (‘Azzopardi’), Redlich JA considered several of those cases and said:[14]
The general propositions which flow from these authorities is that where the degree of criminality of the offences requires the sentencing objectives of deterrence, denunciation, just punishment and protection of the community to become more prominent in the sentencing calculus, the weight to be attached to youth is correspondingly reduced. As the level of seriousness of the criminality increases there will be a corresponding reduction in the mitigating effects of the offender’s youth. But only in the circumstances of the gravest criminal offending and where there is no realistic prospect of rehabilitation may the mitigatory consideration of youth be viewed as all but extinguished.
(citations omitted)
[12] R v Wright [1998] VSCA 84 at [6] per Winneke ACJ, Brooking and Batt JJA; R v Bell (1999) 30 MVR 115; R v Ung [2002] VSCA 101; R v Tran (2002) 4 VR 457; Director of Public Prosecutions (DPP) v SJK; DPP v Gas [2002] VSCA 131; Director of Public Prosecutions (DPP) v Lawrence (2004) 10 VR 125; Director of Public Prosecutions (DPP) v McCloy [2006] VSCA 99; IE v R (2008) 183 A Crim R 150.
[13] (2011) 35 VR 43 (‘Azzopardi’).
[14] Azzopardi (2011) 35 VR 43 at [44] per Redlich JA (with whom Coghlan and Macaulay agreed).
In the present case, notwithstanding the seriousness of the offending, the appellant’s relative youth remained relevant to sentence for the reasons articulated in Mills. However, the relevance of the appellant’s youth as a mitigatory factor was significantly reduced due to the gravity of the offending. The sentencing Judge, after having regard to the appellant’s antecedents, concluded that he was at a moderate to high risk of reoffending. That finding was open to the sentencing Judge. The appellant had relevant prior convictions, most notably for serious criminal trespass in a residential premises. He had previously received immediate terms of imprisonment and served sentences without being deterred from reoffending. Moreover, he was on parole at the time of the offending and, separately from the present offending, breached his parole conditions by using illicit drugs and failing to comply with his curfew. It is also worth noting that he was affected by methylamphetamine at the time of the offending. Additionally, the content of the appellant’s apology to the victim revealed limited insight into his offending and cast doubt on his prospects of rehabilitation.
Accordingly, the relevance of the appellant’s youth as a mitigatory factor was significantly reduced by reason of the gravity of the offending and his moderate to high risk of recidivism. The sentencing objectives of condign punishment, general and personal deterrence, and the protection of the safety of the community tempered the weight to be afforded to the appellant’s youth as a basis for leniency.
The seriousness of this offending called for a significant penalty which was denunciatory of the appellant’s degrading and appalling conduct. The appellant’s offending involved unlawfully violating the safety and sanctity of the victim’s home. The victim was a young woman, living independently with two other young women. She was raped twice, at night, in her own bedroom and while she was at least partially asleep. It is impossible to properly capture the horror of such offending. Offending of this kind will inevitably result in a victim being traumatised and left with serious psychological challenges (as the victim was in this case).
As King CJ observed in Heuston v R:[15]
Nevertheless, there are in this case serious aggravating features. There is the feature that the attack occurred in the victim's own home. The security and safety of her home were violated by this attack. I think it is difficult to exaggerate the importance of this factor.
A woman attacked in her own home must be left with an enduring sense of insecurity which can never leave her, even when at home.
[15] Heuston v R (1993) 171 LSJS 479 at 480 per King CJ.
Those observations remain as relevant today as when they were made almost 30 years ago. For offences such as those committed by the appellant, the courts must impose significant sentences which will deter other like-minded offenders from engaging in such reprehensible and damaging conduct for the broader protection of the safety of the community.
For those reasons, although at the upper end of the permissible range, we are satisfied that the head sentence of 15 years was not manifestly excessive. It was an appropriately severe sentence.
Conclusion
1.We dismiss the appeal.