R v Armstrong - [2002] SASC 174

[2002] SASC 174
R v ARMSTRONG
Court of Criminal Appeal: Doyle CJ, Perry and Lander JJ

DOYLE CJ. I agree with the orders proposed by Lander J. I agree with his reasons.
I add the following brief remarks.
The offences were committed over a period of about one and a half hours. During that time the victim displayed considerable courage and persistence in attempting to escape from the house within which the respondent had confined her. The responded thwarted the victim’s efforts each time. The offending was protracted, and the respondent demonstrated considerable determination to have his way. I regard the crimes as serious instances of their kind. They were crimes which would attract a sentence well into the upper range for this offence.
I recognise that because the respondent is a man who normally lives on remote Aboriginal lands, imprisonment will have a greater impact on him and on his family than it would have on an offender and family from an urban area. This was a relevant factor for the District Court Judge to take into account.
But the seriousness of the crimes, and the need to impose a sentence that reflects that seriousness, combined to limit the leniency that can be accorded to the respondent on the basis just identified.
The District Court Judge must have given excessive weight to this factor. In doing so he erred in principle, and ultimately imposed a sentence that is so inadequate that the court must interfere. The sentence is one which would rightly attract public criticism on the basis that it reflects a wholly inadequate standard of punishment for such serious offences, and gives excessive weight to one particular mitigating factor.
PERRY J. In my opinion, this is a proper case in which to grant leave to appeal to the Director of Public Prosecutions, and that the appeal should be allowed.
I agree with the orders proposed by Lander J and with his reasons.
LANDER J. This is an application by the Director of Public Prosecutions for leave to appeal against a sentence imposed upon the respondent in the District Court on 22 February 2002.
The respondent was charged with three counts of rape upon the same victim on 28 July 2001 at Port Augusta. He pleaded guilty to the charges and one sentence was imposed under s 18A of the Criminal Law (Sentencing) Act1988 (SA) being a sentence of imprisonment for five years. The sentencing judge set a non-parole period of 18 months commencing on 28 July 2001, which was the day the respondent went into custody.
The grounds upon which leave to appeal is sought are that the sentence imposed is manifestly inadequate in failing to maintain an adequate standard of punishment for offences of rape committed in such circumstances; failing to adequately reflect the element of deterrence and being disproportionate to the seriousness of the offence.
The respondent was born on 1 July 1972. He is a Pitjantjatjara Aboriginal man who has lived most of his…

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.

Continue reading R v Armstrong

Details

AGLC: R v Armstrong [2002] SASC 174
Case: [2002] SASC 174
Decision Date: 13 June 2002

CaseChat Overview and Summary

The case of R v Armstrong involved the respondent who was convicted of three counts of rape and sentenced to five years imprisonment with a non-parole period of 18 months. The Director of Public Prosecutions sought leave to appeal against the sentence on the grounds that it was manifestly inadequate, did not maintain an adequate standard of punishment, failed to adequately reflect the element of deterrence, and was disproportionate to the seriousness of the offence. The respondent, a Pitjantjatjara Aboriginal man, had no prior history of imprisonment but had a history of offences associated with excessive drinking. The victim, aged 21, had suffered considerable physical and emotional trauma as a result of the offences. The court was required to decide whether the sentence was manifestly inadequate and whether leave to appeal should be granted.

The court found that the sentence imposed by the District Court was manifestly inadequate and failed to maintain an adequate standard of punishment and adequately reflect the element of deterrence. The crimes were serious instances of their kind, and the sentence imposed did not reflect the criminality involved. The court found that the District Court Judge had given excessive weight to the factor of the respondent's remote Aboriginal background and had erred in principle. The sentence was so inadequate that it would rightly attract public criticism and gave excessive weight to one particular mitigating factor. The Court of Criminal Appeal granted leave to the Director of Public Prosecutions to appeal and allowed the appeal.

The Court of Criminal Appeal set aside the sentence imposed by the sentencing judge and sentenced the respondent to imprisonment for 9 years with a non-parole period of five years. The court took into account the respondent's early plea, which evinced some contrition and remorse on his part, and his prospects of rehabilitation. The sentences were to date from 28 July 2001, the day the respondent went into custody.

Orders