Police v D No. Scciv-03-1516 - [2004] SASC 131

POLICE v D
[2004] SASC 131
Full Court: Perry, Bleby and Gray JJ

PERRY J In my view, for the reasons given by Gray J, this appeal should be allowed.
I would emphasise that the complications which have arisen in this case could have been avoided if the sentencing judge had exercised his power to refer the respondent to be sentenced as an adult in the District Court. He could then have been sentenced by the District Court judge who dealt with the other rape charge, and a single sentence imposed for all of the offences.
The offences giving rise to the sentence under appeal were clearly so serious that an order should have been made in any event that the respondent be dealt with on those offences as an adult. The case in favour of that course became overwhelming when it was apparent that the respondent was awaiting sentence in the District Court for a similar offence committed when he was an adult.
Given that it was inevitable that the respondent stood to be sentenced in the District Court to a term of imprisonment, it could not possibly serve a useful purpose to order that he serve a term of detention as a young offender before going to gaol.
I agree with the orders proposed by Gray J.
BLEBY J I agree with the orders proposed by Gray J and with his reasons.
GRAY J This is a Crown appeal against sentence.
D was charged in the Youth Court with four counts of rape. All counts arose out of the one course of conduct. All involved the one complainant. The matter proceeded to trial. After the complainant was cross-examined, pleas of guilty were entered to all counts. D was sentenced on 15 October 2003. At the time D was aged 17 years.
The Facts
At about 8.00pm on 31 October 2001 the complainant left her home to go for a walk. She took her friend’s dog with her. She went to a nearby park, stayed for a while and then started her return home. Whilst returning the complainant was approached by D. He asked for the time. D began to talk to the complainant and introduced himself as Matt. He asked if she wanted to “hook up” some time and she replied “No”. They then crossed to the Foodland shopping complex nearby, sat on a wall and continued to talk.
D asked the complainant “Do you want to go around the back for a fuck”. She replied “No”. D then attempted to kiss the complainant. She responded, but then moved away. D continued to try to talk to her. They went down a pathway between a group of shops. Whilst in the pathway D grabbed the complainant by the shoulders and pushed her against a wall. The complainant was shocked and scared. The dog had broken away.
D then attacked the complainant. She was pinned against the wall. D undid her jeans and put his fingers into her vagina.…

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.

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Details

Case: [2004] SASC 131
Decision Date: 12 May 2004

CaseChat Overview and Summary

The case of Police v D No. Scciv-03-1516 involved D, who was originally charged in the Youth Court with four counts of rape, all arising from a single incident involving one complainant. After the complainant testified and was cross-examined, D entered pleas of guilty to all counts and was subsequently sentenced. At the time of sentencing, D was 17 years old, but the case was later reviewed, and D was re-sentenced as an adult.

The legal issues before the court included determining the appropriate sentence for D's crimes, considering his youth at the time of the offenses and his prospects for rehabilitation, as well as the need to protect the community and deter future offending. The court also had to consider D's late plea of guilty and the impact it had on the complainant.

In its decision, the court determined that D's offending was both brutal and callous, and his plea of guilty came very late in the proceedings. Although D had prospects for rehabilitation, the court found that the gravity of his offenses warranted a sentence of immediate imprisonment. The court imposed a head sentence of imprisonment for two years and six months, with a non-parole period of two years and nine months. The court also considered the need to protect the community and deter D from future offending, and it took into account D's youth and prospects for rehabilitation.

The final orders of the court included the imposition of a sentence of imprisonment for two years and six months, with a non-parole period of two years and nine months. The court also invoked the provisions under section 18A of the Sentencing Act and imposed one sentence for the four counts of rape.

Orders

Orders of the court

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Background

Background to the litigation

D was charged in the Youth Court with four counts of rape. All counts arose out of the one course of conduct. All involved the one complainant. The matter proceeded to trial. After the complainant was cross-examined, pleas of guilty were entered to all counts. D was sentenced on 15 October 2003. At the time D was aged 17 years.The Facts At about 8.00pm on 31 October 2001 the complainant left her home to go for a walk. She took her friend’s dog with her. She went to a nearby park, stayed for a while and then started her return home. Whilst returning the complainant was approached by D. He asked for the time. D began to talk to the complainant and introduced himself as Matt. He asked if she wanted to “hook up” some time and she replied “No”. They then crossed to the Foodland shopping complex nearby, sat on a wall and continued to talk. D asked the complainant “Do you want to go around the back for a fuck”. She replied “No”. D then attempted to kiss the complainant. She responded, but then moved away. D continued to try to talk to her. They went down a pathway between a group of shops. Whilst in the pathway D grabbed the complainant by the shoulders and pushed her against a wall. The complainant was shocked and scared. The dog had broken away. D then attacked the complainant. She was pinned against the wall. D undid her jeans and put his fingers into her vagina. He was rough and caused pain. By this time the complainant’s pants had fallen down. D had penile intercourse with her. The complainant remained pinned to the wall. She unsuccessfully attempted to push and kick D away. She was then pushed to the ground and again D’s fingers were inserted into her vagina. A further act of penile intercourse took place. D ejaculated during this act of intercourse. He then left. At the beginning of the trial pleas of not guilty were entered. The complainant was examined and cross examined in regard to the attack. In cross examination it was suggested that she was a consenting and cooperative participant to all that had occurred. The trial was adjourned for a short period. D’s counsel then advised that he was instructed to further cross examine the complainant. However, before any further cross examination was undertaken D entered pleas of guilty to all counts. Rape has been described as the most humiliating, distressing and cynical of crimes. The attack on the complainant was both callous and brutal. The complainant’s victim impact statement indicates the extent of her suffering.My life was turned upside down by you on the day you raped me. You destroyed me! It wasn’t just the physical ordeal that affected me; it was mental side of it as well. I ask myself, what did I do to deserve being degraded like that. You destroyed my self-esteem.……When I found out that you were going to plead guilty, I felt numb. Why couldn’t you have been man enough to own up earlier, then maybe people would have believed me sooner? You put me through hell, having to give evidence, getting told that I would have to return to court to answer more questions and then at the last minute you decide that you would own up. I will never forgive you for what you did, for the hell you put me through. You ruined my life! You made me suffer by making me relive every degrading thing you did to me. I hate you! I want to see you punished, so no one else has to suffer at your hands.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

PERRY J BLEBY J GRAY J

Finally it will be necessary for this court to review the non parole period set by the District Court and extend that period as this court thinks fit.Conclusion D is now aged 19 years and six months. This court should re-sentence D as an adult pursuant to its powers under section 22(3) of the Youth Court Act. When doing so the court must have regard to the special considerations that apply to young offenders. In R v Bui[12] the court concluded that where an order is made under section 17(3)(c) of the Young Offenders Act the provisions in section 3 of that Act still apply to the sentencing of the youth, although their relevance would depend on the circumstances. The same conclusion was reached in QTV.[12] (2002) 224 LSJS 286 The gravity of D’s offending requires the imposition of a sentence of immediate imprisonment. His criminal conduct was both brutal and callous. At the time D had been released on a good behaviour obligation following earlier crimes involving violence. Subsequent to the subject offending D committed a further crime of rape. It would appear that an explanation for his conduct was his long standing drug addiction. This circumstance may offer an explanation but provides no excuse. The psychological evidence suggests that D has prospects for rehabilitation with appropriate treatment. When determining sentence the court should have regard to D’s youth, both at the time of offending and at resentencing. Special weight should be given to his prospects for rehabilitation. However regard must also be had to the protection of the community and the need to deter D from future offending. D’s plea of guilty came very late and in circumstances where the complainant had been subjected to the giving of evidence. As the complainant’s victim impact statement disclosed, the trial process was extremely distressing. In this circumstance only a minimal allowance can be made for his pleas. An allowance of three months has been made. Care must be taken to avoid imposing a sentence that would be crushing. It is appropriate to invoke the provisions under section 18A of the Sentencing Act and impose the one sentence for the four counts of rape.[13][13] If a person is found guilty by a court of a number of offences, the court may sentence the person to the one penalty for all or some of those offences, but the sentence cannot exceed the total of the maximum penalties that could be imposed in respect of each of the offences to which the sentence relates. The minimum period of imprisonment that D should serve for the subject offences is two years and nine months. A reduction has been made for D’s pleas of guilty. Credit must be given for the three months already spent in detention. As a result a head sentence should be imposed for the subject offences of imprisonment for two years and six months. On the material before the court and having regard to the fact that D faces a custodial sentence during adulthood, the sentence for the subject offences should be served in prison.

Ratio Decidendi

Legal Principle Established

Established by: PERRY J, BLEBY J, GRAY J

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