O'Connor v The QUEEN

[2020] SASCFC 41

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

O’CONNOR v THE QUEEN

[2020] SASCFC 41

Judgment of The Court of Criminal Appeal (ex tempore)

(The Honourable Chief Justice Kourakis, The Honourable Justice Nicholson and The Honourable Justice Bleby)

13 May 2020

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

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT

Application for permission to appeal against the sentence imposed on the applicant upon his convictions of three counts of rape contrary to s 48 of the Criminal Law Consolidation Act 1935 (SA) (the CLCA) and one count of aggravated serious criminal trespass contrary to s 170(2) of the CLCA.

In September 2003, the applicant was introduced briefly to the victim of his offending in a hotel bar. When the victim arrived home, she went straight to bed. She awoke to find the applicant holding a knife next to her bed. In fear, she grabbed at the knife causing a deep wound to her right hand. Despite the bleeding, the applicant proceeded to tear off her underwear and bind her. The three rape offences included penile/vaginal intercourse and fellatio.

The applicant was not arrested until 14 May 2018 after DNA taken from the crime scene was matched with his DNA in the National DNA Database. He testified in his defence that he had visited the victim’s premises to buy cannabis and that consensual oral sex had ensued. It was necessarily implicit in his case that another male must have raped the victim after he had left.

The applicant does not have a significant criminal history of this kind. However, in 2015, and twice in 2017, he was convicted of offences involving the possession of a weapon.

The applicant was sentenced to 16 years imprisonment with a non-parole period of 11 years. The applicant appeals against the sentence on the ground that it is manifestly excessive.

Held per Kourakis CJ (Nicholson and Bleby JJ agreeing), refusing permission to appeal:

1.  The sentence imposed is within the range of sentences imposed for offences of this kind.

2.  It is not arguable that the head sentence is manifestly excessive.

3.  The applicant’s mixed personal circumstances do not support an argument that the non-parole period is manifestly excessive. The lack of any consideration of the plight of the applicant’s victim and the absence of any remorse or insight outweigh the absence of any similar offending before his arrest.

Criminal Law Consolidation Act 1935 (SA) ss 48, 170, referred to.
R v Knight [2016] SASCFC 40, considered.

O’CONNOR v THE QUEEN
[2020] SASCFC 41

Full Court:      Kourakis CJ, Nicholson and Bleby JJ

1. KOURAKIS CJ (ex tempore):     This is an application for permission to appeal against a sentence of 16 years imprisonment with a non-parole period of 11 years imposed by a Judge of the District Court upon the applicant’s convictions of three counts of rape[1] and one count of aggravated serious criminal trespass[2] following a trial by jury.  The circumstances of the aggravation of the last mentioned offence were that the applicant entered his victim’s residence armed with a knife and knowing of her presence or being recklessly indifferent thereto.

   [1] Contrary to s 48 of the Criminal Law Consolidation Act 1935 (SA).

   [2] Contrary to s 170(2) of the Criminal Law Consolidation Act 1935 (SA).

2. In September 2003, the applicant was introduced briefly to the victim of his offending in a hotel bar.  It is likely that, as a result of overheard conversations, the applicant realised that his victim would be home later that night and that she proposed to leave a key in the front door for a friend who was going to stay over with her but wished to remain a little longer at the bar.

3. When the victim arrived home, she went straight to bed.  She awoke to find the applicant holding a knife next to her bed.  Fearing that she was about to be stabbed, she grabbed at the knife causing a deep wound which severed the tendons of her right hand.  Despite the bleeding from his victim’s wound, the applicant proceeded to tear off her underwear, bind her hands and feet with rope, and blindfold her with gauze.  The applicant had plainly planned his offending and had entered his victim’s residence well prepared. The three rape offences included penile/vaginal intercourse and fellatio.

4. After he finished, the applicant placed a gag over his victim’s mouth and took some cannabis from her lounge room as he left.  The victim ran naked and bleeding across the road to seek help from her neighbour.

5. The applicant was not arrested until 14 May 2018 after DNA taken from the crime scene was matched with his DNA in the National DNA Database.  He testified in his defence that he had visited the victim’s premises to buy cannabis and that consensual oral sex had ensued.  It was necessarily implicit in his case that another male must have found his way into the victim’s home, after he had left, and had caused the hand wound and raped the victim.  The Judge described the applicant’s evidence as a ‘tissue of lies’.

6. The applicant is 53 years of age; the offences were committed when he was 37 years of age.  He does not have a significant criminal history for offences of this kind. However, in 2015, and twice in 2017, he was convicted of offences involving the possession of a weapon.

7. The only ground of appeal is that the sentence is manifestly excessive.  The applicant’s counsel submits that the circumstance that the applicant has not committed offences of this kind in the 14 years between the offending and his arrest substantially detracts from the need for a sentence which operates as a personal deterrent and which reduces the period of preventative detention, which might otherwise be required for offences of this kind.  He submits that the absence of any serious subsequent offending allows a lesser non-parole period and that the non-parole period fixed is manifestly excessive.

8. The applicant has been convicted of terrifying offences of sexual violence.  He has shown neither remorse for, nor insight into, his offending.  The applicant can have felt no empathy for his victim to have violently sexually assaulted her while she was so seriously wounded.  The terror he had engendered has lasted well beyond that night.  The victim impact statement shows that she continues to suffer from nightmares.  She is overcome by feelings of dread, panic, and despair.  She is fearful of unknown males.  She compulsively checks the security of her house.

9. The offence, in itself, called for condign punishment and strong denunciation.  It is hardly necessary to emphasise the importance of general deterrence in sentencing for offences of this kind.

10. The circumstance that the applicant has not reoffended in a similar way must be accorded some weight.  However, there is a paucity of evidence of positive and advanced rehabilitation.  The applicant has committed offences in the years just before his arrest, but of a less serious kind.

11. For offences of this kind, and having regard to such evidence as there is of the applicant’s life since, it is not possible to safely proceed on the basis that there will be no recidivism.  The violence of the offending and the applicant’s lack of remorse leaves open the very real possibility that a combination of circumstances and opportunity could again arise in which the applicant would reoffend if not prevented and deterred by a substantial sentence of imprisonment.

12. 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.

13. In R v Knight, I said:[3]

    [3]It is not an error in the exercise of the sentencing discretion to give more, or less, weight to a particular matter than the appeal court would have given it.  An exercise of the sentencing discretion is only vitiated by reference to the treatment of a relevant matter when a judge fails to consider it at all.  …

    [3] [2016] SASCFC 40 at [3].

14. Moreover, judges of trial courts are well placed to arrive at a sentence which reflects the relative seriousness of an offence. 

15. Accordingly, it is not arguable that the head sentence is manifestly excessive.

16. The applicant’s mixed personal circumstances do not support an argument that the non-parole period is manifestly excessive.  The lack of any consideration of the plight of the applicant’s victim and the absence of any remorse or insight outweigh the absence of any similar offending before his arrest.

17. For these reasons, I would refuse permission to appeal.

18. The orders of the Court are:

    1Application for permission to appeal refused. 

    2Appeal dismissed.

19. NICHOLSON J:         I would refuse permission to appeal for the reasons just given by the Chief Justice.

20. BLEBY J:     I agree with the Chief Justice. I would refuse permission to appeal.