R v Armstrong

[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 life on the Pitjantjatjara lands. He was educated until the age of 13, leaving school in year 8.
He has been in more or less steady employment on rural properties since leaving school. He is married to Tammy and they have three children aged six, five and one.
He has been convicted of traffic offences and in particular driving with a prescribed concentration of alcohol. About a year before these offences he was convicted of larceny and common assault. The offences have been mainly associated with excessive drinking.
He has never been imprisoned prior to these offences.
There is no history of abuse of illegal or prescription drugs. He denies that he abuses alcohol although clearly enough these offences were committed whilst under the influence of alcohol. He did admit to a psychologist, who provided a report to the sentencing judge, that when he has abused alcohol that has led to arguments with his wife. His wife disapproves of him drinking.
He has had a Christian upbringing. He told the psychologist, who provided a report to the sentencing judge, that he reads the Bible each night.
He has been in prison since the commission of these offences. He told the psychologist that he was coping poorly with imprisonment. He misses his family and his local Pitjantjatjara community.
On 28 July 2001 the victim, who was aged 21 at the time of the commission of these offences, was walking home from a party in suburban Port Augusta. The time was about 2:00 am.
She noticed an Aboriginal man walking behind her on the opposite side of the road. He crossed the road and confronted her. He placed both hands firmly on her shoulders. The victim screamed. The respondent then placed a hand over her mouth and dragged her across a vacant block. He told her that he would not hurt her or rape her. She persuaded him to take his hand off her mouth. The respondent walked her to his house. The victim screamed again and he placed his hands over her mouth and forced her inside the house. He pushed her onto a bed. Again he assured her that he would not hurt her. He made her a cup of tea and locked the back door. The victim attempted to run away but the respondent caught her and dragged her back to the bed and threw her on the bed again. He said:
“You didn’t behave yourself. I’m going to fuck you now.”
He then put his finger into her vagina.
The victim convinced him that she needed to go to the toilet. She persuaded him to allow her to go to the toilet and close the door. The victim then got out of the house through the window. In leaving the house she landed on her chest and hit her chin on the cement. She scrambled to her feet but was confused. She tried to jump a fence. She screamed. The respondent grabbed her around the neck and applied a head lock and dragged her off the fence. He pushed her to the ground and lay on top of her.
The respondent kissed her and put his hand inside her underclothes. Again he placed his finger in her vagina. He asked her to suck his penis. She refused. He made her bend over the fence. He pulled down her leggings and her underclothes and again he placed his finger in her vagina. He then placed his penis in her vagina.
He then pushed her away from the fence and pushed her down and he placed his head between her legs and licked and sucked her vagina. Throughout this ordeal he continually touched her breasts. He also spoke to her about what he was doing.
The respondent saw a male person in the street. The respondent said:
“Don’t you fuckin’ dare. I’ll kill you.”
The victim persuaded the respondent that he should take her to her house where she had cigarettes, alcohol and drugs. He walked with her to her house. When they got near the house the victim ran and started screaming. Her partner opened the front door. The respondent ran away.
Shortly after the victim was admitted to hospital. Later in the day she identified the respondent to police officers pointing him out to them whilst he was walking in the street near the scene of the crime.
A victim impact statement was provided to the Court. Clearly enough she has suffered not only physically but emotionally as a result of these crimes. At the time of sentencing she was still suffering. She said, and I think it may be accepted, that her emotional injuries will be with her for the rest of her life. She said that she felt physically sick every time she thought of the respondent and what had happened on that night.
She subsequently became pregnant to her partner but terminated the pregnancy because of what had happened. She said that in her present emotional state she would be unable to care for a child.
The respondent was interviewed on 28 July, a few hours after the offences were committed.
When he was interviewed, the respondent admitted that the victim had been at his house, but denied that he used force on her or that he raped her. He said that she appeared to be walking the street in an upset state and that he had brought her to his home and given her a cup of tea. He alleged that the victim had voluntarily taken her clothes off. He said that at the time he was incapable of an erection.
Notwithstanding the denials to the police he pleaded guilty to these offences.
Applications for leave to appeal by the Director are governed by the principles stated in Everett v R (1994) 124 ALR 529.
Appeals by the Director of Public Prosecution should be a rarity. The appeal should raise some matter of principle which needs to be addressed by the Court of Criminal Appeal. Prosecution appeals allow the Court to maintain adequate standards of punishment and correct idiosyncratic views of judges and sentences which are “… so disproportionate to the seriousness of the crime as to shock public conscience”: R v Osenkowski (1982) 30 SASR 212 at 212-213.
Inadequate sentences can give rise to a sense of injustice in the mind of the public. However, the sentence must be manifestly inadequate to the point where the sentence itself demonstrates an error in point of principle by the sentencing judge.
In my opinion, this is such a sentence. Notwithstanding the appellant’s pleas to these charges, a sentence of five years for the course of conduct indulged in by the respondent is manifestly inadequate. It is so low as to shock the public conscience. The sentence fails to give proper consideration to aspects of punishment and deterrence. It fails to recognise the physical and emotional trauma which the victim has undergone.
The sentence is so inadequate that leave to appeal should be granted.
I would not only grant leave but I would allow the appeal.
These were very serious offences committed over a period of time in which the victim was abducted, raped and subjected to extraordinary humiliation at the same time as she was put in fear for her own life.
The three charges are representative of a course of conduct over the period of time. A sentence of five years notwithstanding the appellant’s antecedents and his plea simply does not reflect the criminality involved in the three charges.
I would set aside the sentence imposed by the sentencing judge.
I think one sentence should be imposed: s 18A Criminal Law (Sentencing) Act. In my opinion, it would be appropriate to commence with a sentence of imprisonment of 12 years. I would reduce that term to 9 years for the respondent’s early plea, which evinces some contrition and remorse on his part. I would set a non-parole period of five years which takes into account the respondent’s prospects of rehabilitation.
I would make the following orders:
1      Leave to the Director of Public Prosecutions to appeal.
2      Appeal allowed.
3The sentence imposed on 28 July 2001 in the District Court set aside.
4      The respondent is sentenced to imprisonment for 9 years.
5      A non-parole period of five years is set.
6      The sentences to date from 28 July 2001.

[2002] SASC 174

13 June 2002