R v Anderson - [2006] SASC 108

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Application)
R v ANDERSON
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Duggan and The Honourable Justice Anderson)
13 April 2006
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - CIRCUMSTANCES OF OFFENCE
Application to Full Court for leave to appeal against sentence - applicant pleaded guilty to offences of false imprisonment, rape and indecent assault - applicant abducted 13 year old victim and sexually assaulted her - offence took place in 1992 - applicant sentenced in 2005 - sentence of ten years imprisonment with non-parole period of eight years - whether sentence manifestly excessive with regard to sentencing régime at time of offence - discussion of sentencing standards prior to Statutes Amendment (Truth in Sentencing) Act 1994 - whether sentence was manifestly excessive with regard to general principles - circumstances of offending were serious - sentence not manifestly excessive - Held: leave to appeal refused.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - NON-PAROLE PERIOD OR MINIMUM TERM - SOUTH AUSTRALIA
Whether non-parole period too great a proportion of head sentence - long history of previous offending - number of gaol sentences previously imposed - no other sexual offences - non-parole period not too great a proportion of head sentence - Held: leave to appeal refused.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - MISCELLANEOUS MATTERS - PLEA OF GUILTY, CONTRITION AND CO-OPERATION
Sentencing judge reduced sentence by one year on account of guilty plea - whether applicant entitled to further reduction in sentence - applicant did not plead guilty at first available opportunity - applicant would have contested charges if possible - applicant pleaded guilty shortly before commencement of trial - applicant not entitled to further reduction - Held: leave to appeal refused.
Correctional Services Act 1982 s 66, s 67; Criminal Law Consolidation Act 1935 s 302; Criminal Law (Sentencing) Act 1988 s 12, s 18A; Criminal Law (Sentencing) Act 1989; Statutes Amendment (Truth in Sentencing) Act 1994, referred to.
R v Beauregard-Smith (2001) 79 SASR 408; R v Dube and Knowles (1987) 46 SASR 118, applied.
Hoare and Easton v The Queen (1989) 167 CLR 348; R v Fowler and Hart (1986) 127 LSJS 329; R v M, WJ (2005) 92 SASR 571, discussed.

R v ANDERSON
[2006] SASC 108
Court of Criminal Appeal: Doyle CJ, Duggan and Anderson JJ

DOYLE CJ. I would refuse leave to appeal against sentence. I agree with the reasons given by Duggan J.
DUGGAN J. This is an application for leave to appeal by the applicant against the sentence imposed on him in the District Court for offences of false imprisonment, rape and indecent assault.
The offences arose out of an incident which took place on 27 August 1992 at Silver Sands.
The victim was aged 13 years at the time of the offences. She went for a walk along a beach in the area and then lay down on the sand. The applicant approached her and threw a shirt over her head before she became aware of his presence.
The victim called out in fright and the applicant told her to stop yelling or he would hurt her. The applicant’s car was parked on the beach and he walked the victim to the car. He then placed some tape around the victim’s neck so as to hold the shirt in place. The victim was then pushed onto the front passenger seat.
The applicant drove off the beach to a nearby street. When he stopped the vehicle, he manoeuvred the victim onto the rear seat, took off all her clothes and performed an act of cunnilingus upon her. He then rubbed his penis against her vagina and ejaculated.
The applicant then drove off after telling the victim to lie along the rear seat of the vehicle. He took her to a toilet and left her in a cubicle after removing the shirt from her head.
The applicant was arrested and charged with the offences on 8 March 2004. A DNA sample taken from him shortly before his arrest was compared with DNA from a vaginal swab taken from the victim shortly after the offences had been committed. The results from the comparison formed the basis of the prosecution case.
The applicant pleaded guilty to the charges and the District Court judge imposed a single sentence of imprisonment for ten years pursuant to s 18A of the Criminal Law (Sentencing) Act1988. A non-parole period of imprisonment for eight years was imposed.
The applicant appealed against the sentence on the grounds that it is manifestly excessive and that the non-parole period is too great a proportion of the head sentence. Leave to appeal was refused by a single judge. The applicant has requested that the application for leave be considered and determined by the Full Court.
In the course of arguing that the sentence was manifestly excessive Mr Vadasz, for the applicant, drew attention to the fact that the offences were committed more than 13 years ago. He submitted that a sentencing court is required to take into account the sentencing régime and the standards of sentencing which applied at the time an offence was committed.
Generally speaking, the proposition underlying this submission is correct: R v Beauregard-Smith (2001) 79 SASR 408 at 425. In applying it, a court will have regard to matters such as changes in the maximum penalty for the offence, other legislative amendments which have had an effect on sentencing levels since the offence and increases in the tariff for the offence which have resulted from a warning by the courts that levels of sentencing for a particular offence will increase in the future.
There was no increase in the maximum penalty over the relevant period for any of the offences committed by the applicant. However, Mr Vadasz argued that it was necessary to have regard to the sentencing régime which existed prior to the passing of the Statutes Amendment (Truth in Sentencing) Act 1994 (“the Truth in Sentencing legislation”). He argued that a head sentence of 12 years imprisonment, which was the starting point for the sentencing of the applicant, equated to a sentence of imprisonment for 18 years prior to the Truth in Sentencing legislation, and that such a sentence would have been manifestly excessive before the passing of that legislation.
This submission requires consideration of some of the changes brought about by the Truth in Sentencing legislation and comment on the history of the relevant legislation which preceded it.
Prior to 1986, a court, when sentencing, was not entitled to take into account remissions which an offender might receive for good behaviour: R v Fowler and Hart (1986) 127 LSJS 329 at 334. The position was summarised by King CJ in R v Dube and Knowles (1987) 46 SASR 118 at 120:
The sentencing judge was obliged to assume that the prisoner would serve in prison the whole of the non-parole period fixed by the judge and, if he did not accept the conditions of parole, would serve the whole of the head sentence. This was, of course, a fiction. In the vast majority of cases, prisoners are of good behaviour in prison and gain the whole of the permitted remissions, that is to say one-third of the sentence or non-parole period as the case may be. The judge would impose the sentence and non-parole period which he considered to be fair and just punishment for the crime committed, but the prisoner would be released, in most cases, after serving only two-thirds of that sentence.
In 1986 the Criminal Law Consolidation Act 1935 was amended by the substitution of a new s 302 which was in the following terms:
A court, in fixing the term of a sentence of imprisonment or in fixing or extending a non-parole period in respect of a sentence, or sentences, of imprisonment, shall have regard to the fact (where applicable) that the prisoner may be credited, pursuant to Pt VII of the Correctional Services Act 1982 with a maximum of fifteen days of remission for each month served in prison.
In R v Dube and Knowles, King CJ commented that this amendment had the potential to substantially increase the level of sentences. He said at 121:
Prior to the amending Act, as I have pointed out, the judge was not entitled to have regard to the remission provisions. Now he is directed to do so. It seems to me that he can only have regard to those provisions, by adjusting the sentence which he would otherwise have imposed, by reason of them. I think that the section mandates the judge to take the remission provisions into account when determining the duration of the head sentence and the non-parole period. He can only do this by making some appropriate increase to the sentence which he would have otherwise imposed.
. . . . . .
As there is no certainty about the period of remission which any particular prisoner will earn, the judge is not obliged, in my opinion, to adjust a sentence which he would otherwise have imposed in any strictly mathematical fashion. Nevertheless the reality is that if it is desired that a prisoner spend six years in prison before parole, regard for the remission provisions is likely to lead to a non-parole period approaching nine years. The same considerations apply to a head sentence. It can be seen, therefore, that the effect of the new section on the level of sentencing will be quite dramatic and could in some cases result in as much as a fifty per cent increase in the sentence which would otherwise be awarded.
This view of the effect of the legislation was applied until it was overruled by the High Court in Hoare and Easton v The Queen (1989) 167 CLR 348. However, the view of the Full Court in R v Dube and Knowles was reinstated, in effect, by the Criminal Law (Sentencing) Act 1989, which amended s 12 of the Criminal Law (Sentencing) Act 1988. The amendments which came into effect on 31 August 1989 read as follows:
12(1) A court, in fixing the term of a sentence of imprisonment or in fixing or extending a non-parole period in respect of a sentence, must have regard to any remission of sentence to which the prisoner may become entitled under the Correctional Services Act, 1982.
(2) It is the intention of Parliament that subsection (1) should be interpreted in accordance with the judgment of the Full Court in The Queen v Dube and The Queen v Knowles (1987) 46 SASR 118 and in so far as the principles of sentencing purportedly inferred by the Full Court from section 302 of the Criminal Law Consolidation Act 1936 (the precursor of subsection (1) were not properly so inferred, those principles must be taken to be founded on this subsection.
The provisions were not made retrospective, but they had the effect of reviving the position as it was stated it the passages from King CJ’s judgment in R v Dube and Knowles set out above. This situation remained until the law was amended again by the Statutes Amendment (Truth in Sentencing) Act 1994. This Act repealed the remissions system altogether. In addition, the legislation provided that a prisoner serving a life sentence or a sentence or sentences amounting to five years or more was no longer entitled to automatic release upon the expiration of the non-parole period. It is unnecessary to consider these amendments in detail; they are set out in ss 66 and 67 of the Correctional Services Act 1982 and represent the law as it is at the present time.
The purpose of setting out the history of the relevant sentencing provisions is to illustrate the fact that limited assistance is to be obtained from the bald submission made by counsel for the applicant that the sentencing judge’s starting point of imprisonment for 12 years equates with a pre-Truth in Sentencing starting point of imprisonment for 18 years. The offences were committed in 1992, at a time when the reasoning in R v DubeandKnowles had been restored by statute, with the consequence of potentially increased sentences by reason of the considerations referred to by King CJ in that case.
No material was placed before this court to indicate that sentencing levels for the present offences throughout the time when R v Dube and Knowles applied were lower than levels of sentencing for similar offences since Truth in Sentencing legislation came into operation in 1994: cf. R v M, WJ (2005) 92 SASR 571 at [49].
In my view, the argument based on sentencing standards at the time the offences were committed does not assist in determining whether the sentence was manifestly excessive.
The question remains whether the sentence is manifestly excessive by reference to the general principles relevant to a consideration of that ground.
The sentence was severe. However, the circumstances of the offending were serious. The applicant preyed on a young girl and subjected her to a terrifying experience. She was abducted from the beach after a blindfold was placed over her head. She had no idea where she was being taken. She was subjected to a humiliating sexual attack and abandoned in a toilet.
It is apparent from the complainant’s victim impact statement that the incident has had a significant impact upon her life. She has undergone extensive counselling. Her mother has also suffered adverse effects from the incident. Apart from the plea of guilty, there would appear to be very little to mitigate the applicant’s conduct.
In my view, the sentence was within the range appropriate for the offences and was not manifestly excessive.
I would also reject the submission that the non-parole period represents too great a proportion of the head sentence.
The applicant has a long history of previous offences. In my view, his offending both before and after this incident is relevant to his prospects of rehabilitation. Although the fact that he has not committed any other sexual offence is a relevant consideration, I do not think his persistent offending despite a number of gaol sentences can be ignored when considering his prospects of rehabilitation. In my view no error in the fixing of the non-parole period has been demonstrated.
The final matter relates to the allowance made by the sentencing judge for the pleas of guilty.
I have said that the applicant was charged with the offences on 8 March 2004, following a routine DNA check. He was committed for trial and pleaded not guilty to the offences when arraigned on 30 August 2004.
Prior to this arraignment, Mr Vadasz wrote to the prosecution on 21 June 2004 requesting further information concerning the procedures undertaken in the analysis of the DNA and, in particular, the handling of exhibits relevant to those procedures.
There was a directions hearing on 13 October 2004 and a further directions hearing on 10 November 2004. At the latter hearing, the defence advised the court that the matter was not going to resolve and it was set down for a six day trial to commence on 19 September 2005.
There was a further directions hearing on 4 August 2005. Ms Ferris, for the accused, told the court that the defence had encountered some difficulty in obtaining the relevant file from the Forensic Science Centre despite requests which had been made since April 2005. She said that Mr Vadasz had spoken to Dr Both of the Forensic Science Centre and obtained the material which he sought. The court was told that it would be necessary for the defence to obtain an independent report from a scientist employed by the Institute of Medical and Veterinary Science. Ms Ferris told the court that she was not applying to have the trial date vacated, but wished to bring it to the court’s attention that the report was being sought.
Mr Vadasz was not able to inform this court when the prosecution was told that the pleas of guilty would be entered. However, he told the sentencing judge that he had informed the prosecution at the beginning of August 2005 that his client would plead guilty subject to an independent appraisal of the evidence. He said that he received the defence expert’s report in early September 2005. Bearing in mind the fact that the matter was listed for trial on 19 September 2005, the pleas of guilty were not confirmed until a short time before the trial date.
This is not to imply any criticism of the applicant. However, it is clearly relevant to the extent of the reduction appropriate for the guilty pleas. On this analysis the complainant would not have known that she would not be giving evidence until a very short time before the trial date. Up until that time, it must be assumed that the applicant would have pleaded not guilty if the report from the defence expert had provided him with some hope of successfully defending the charges.
When sentencing the applicant the trial judge said:
You originally pleaded not guilty to these charges, but I am told on the morning of the trial you admitted your guilt and pleaded guilty. You cannot get the full benefit of an early plea, but you can be given some benefit because, of course, your victim was not cross-examined and did not have to go through the trauma of a trial.
The trial judge reduced the sentence by one year on account of the pleas of guilty. As I have said, the pleas of guilty were not made known to the prosecution until shortly before the trial and it is clear that the matter would have been contested if there was a basis for challenging the DNA evidence. Although the judge’s remarks about the plea being on the morning of the trial are somewhat ambiguous, it is my view that the applicant was not entitled to any reduction in sentence by reason of his eventual pleas of guilty beyond that which was allowed by the trial judge.
I would refuse leave to appeal against sentence.
ANDERSON J. I agree with the reasons given by Duggan J and I would refuse to give leave to the appeal against sentence.