R v BELCHER

[2016] SASCFC 17

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v BELCHER

[2016] SASCFC 17

Judgment of The Court of Criminal Appeal

(The Honourable Justice Kelly, The Honourable Justice Blue and The Honourable Justice Nicholson)

2 March 2016

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - GENERALLY

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT

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

Appeal against sentence. The appellant pleaded guilty to one count of rape and was sentenced to a period of imprisonment of three years, seven months and two weeks with a non-parole period of 12 months.  The appellant was 19 years old at the time of the offending and had a history of depression, anxiety and stress.

Whether the sentencing Judge erred in failing to find that there was good reason to suspend the sentence.

Held per Kelly J (Blue and Nicholson JJ agreeing) (dismissing the appeal):

1.       There has been no error demonstrated in the approach of the sentencing Judge to the exercise of the discretion.  In these circumstances it is not for an appellate court to intervene when the discretion was properly exercised.

Criminal Law Consolidation Act 1935 (SA) s 48, referred to.

R v BELCHER
[2016] SASCFC 17

Court of Criminal Appeal:   Kelly, Blue and Nicholson JJ

KELLY J.

Introduction

1. This is an appeal against a sentence. 

2. On 23 April 2015, the appellant pleaded guilty to one count of rape, contrary to s 48 of the Criminal Law Consolidation Act 1935 (SA), against the complainant, whom I will call “V”. The maximum penalty for that offence is imprisonment for life.

3. On 17 August 2015 the appellant was sentenced to a period of imprisonment of three years, seven months and two weeks, with a non-parole period of 12 months.  The appellant appeals against this sentence on one ground only, that the sentencing Judge erred in failing to find that there was good reason to suspend the sentence.

   The Offending

4. The circumstances of the offending are as follows.  On 3 October 2013, the appellant attended a hotel in the Adelaide CBD with V and some mutual friends.  The appellant was 19 years old.  V was 18 years old.  The appellant, V and their friends were consuming alcohol and V became significantly intoxicated to the point that she vomited at the hotel.  The appellant offered to take V home to her friend’s house where she had arranged to stay the night, and V agreed.  The appellant took V to that house in a taxi and looked after her as she continued to be sick, and until she fell asleep on the sofa bed in the lounge room.

5. During the night V awoke on three occasions and felt fingers inside her vagina.  V was still intoxicated and found it difficult to move or speak when she awoke, and on each occasion that she woke up she then passed out or fell asleep again.  On one of the three occasions she woke she grabbed hold of the wrist between her legs to resist and heard a voice say “sorry”. She then recognised that voice as belonging to the appellant.

6. The appellant sent a text message to V two or three days later, in which he wrote words to the effect of “I am really, really sorry it was a horrible thing to do especially to a friend”. V and the appellant continued to be a part of the same circle of friends, and on one occasion had a milkshake together.

7. V complained of the offending to a friend two or three weeks after the events on 3 October 2013.  She subsequently spoke to her friend’s father who was a police officer, and the matter was reported to police in March 2014.

   The Judge’s Approach

8. In reaching the sentence imposed, the sentencing Judge considered the appellant’s personal circumstances in detail.  He noted that the appellant had a good upbringing with a good relationship with his family, and had performed well at school leading to his undertaking further studies at university.  The sentencing Judge also had before him a number of references attesting to the appellant’s good character.  The appellant was noted to have no relevant history of substance abuse, although he drank alcohol in social settings.

9. A psychological report was prepared by Dr Pam Carroll for the purpose of sentencing.  Dr Carroll first saw the appellant prior to the offending in June 2013 when he was referred to her by his General Practitioner to address his mixed anxiety and depression.  At that time she assessed the appellant as suffering from severe depression, severe anxiety and mild stress.  The appellant considered that his depression had recently worsened after the breakdown of his relationship with his girlfriend in May 2013.  He had commenced taking antidepressants.  The appellant attended regular therapy sessions with Dr Carroll.  In August 2013 he was assessed as suffering from moderate depression, mild anxiety and mild stress.  

10. The appellant returned to Dr Carroll for further therapy in April 2014 as a consequence of the offending.  Dr Carroll then assessed him as exhibiting symptoms of extremely severe depression, mild anxiety and mild stress.  The appellant referred to the offending as a major mistake and attributed his behaviour to his excessive consumption of alcohol following the breakdown of his relationship in May 2013, which he used to escape his feelings of loneliness.  Since the offending the appellant has experienced feelings of self-loathing and suicidal thoughts, and has expressed shame and remorse about the offending in therapy.  He limits his alcohol consumption and does not drink to excess.

11. Dr Carroll concluded that the appellant met the criteria for social anxiety disorder, major depressive episode, and mild alcohol use disorder at the time of the offending.  She considered that there was a direct relationship between the appellant’s psychological condition and his offending.  He was effectively using alcohol, which is contraindicated when taking his antidepressant, to self-medicate his social anxiety and loneliness.  Dr Carroll assessed the appellant as being at a very low risk of reoffending, and opined that if an immediate custodial sentence was imposed the appellant would be at considerable risk of increased anxiety and there would likely be further damage to his “fragile sense of self”.  The sentencing Judge accepted Dr Carroll’s opinion that the appellant was at a very low risk of reoffending.

12. In sum, the sentencing Judge said:

    It is evident from all of the material before me that you are a person of previous good character. You strike me, from everything I know, as a decent young man who went off the rails for a short time. It is very sad to see someone with your background before me.

13. A victim impact statement from V was also before the court for the purpose of sentencing, which made clear the ongoing psychological effect that the offending has had on her.  She experiences depressed feelings and intrusive thoughts.  V described negative changes in her personality and quality of life as a result of the offending.  She stated that before the offending she could be described as bubbly, confident, empowered and trusting but she is no longer able to show those traits openly.  She struggles to trust friends after being raped by a person that she considered a friend, and this has altered her views of friendships and left her feeling vulnerable.  She struggles at social events and feels isolated from making friends and participating in the types of social activities and having life experiences that other people her age enjoy.  V is concerned that she may never return to being her outgoing, trusting and carefree self and describes feeling unsupported, disempowered, belittled, blamed and victimised.

14. In determining the sentence, the sentencing Judge relevantly said:

    The crime that you committed was very serious, you took advantage of a grossly intoxicated young woman. The victim impact statement, not surprisingly, discloses that your crime has had a continued adverse effect upon her. Rape is an odious offence and the courts must do what they can to protect young women by the imposition of sentences that will deter men from engaging in such reprehensible behaviour. The fact that [V] was significantly intoxicated at the time does not lessen the gravity of your behaviour. Women, intoxicated or otherwise, are subject to the full protection of the law.

    I sentence you to imprisonment for three years, seven months and two weeks, reduced from four years on account of your guilty plea. You are a person, as I have said, of previous good character. I believe that your conduct towards [V] was an aberration and that you enjoy good future prospects. In the circumstances I propose to fix a very low non-parole period for a crime of this type of 12 months.

    Your counsel, Mr Dillon, in his helpful submissions urged me to suspend the sentence. He submitted that there are good reasons for doing so. In considering suspension I must weigh the gravity of your offending against your personal circumstances, including your youth, your mental health issues as outlined, lack of prior convictions, good work and study history and the fact that you now acknowledge the wrongfulness of your behaviour. The prosecution has submitted that suspension of the sentence is within my discretion. However, I believe that the gravity of your conduct outweighs your personal circumstances. The sentence will not be suspended.

15. It must be acknowledged that the sentencing Judge in this case was faced with a very difficult decision.  As the appellant’s counsel correctly pointed out, this was a matter which was finely balanced.  On the one hand there was a young man, psychologically impaired, alcohol affected, and suffering from depression.  On the other hand there was an 18 year old woman who was very intoxicated and ill who had placed her trust in her friend.  That trust was abused. 

16. It must also be acknowledged that the offending fell at the low end of objective seriousness for an offence of rape.  However, as the sentencing Judge correctly stated, there is a strong need to deter those persons who engage in sexual violence against women, including those who are either asleep or so intoxicated that they cannot consent.  The prosecutor in the court below conceded that the discretion was open to the sentencing Judge to suspend the sentence imposed.  His Honour weighed up all of the factors militating towards suspension and against suspension.  That the sentencing Judge had regard to the appellant’s personal circumstances is clearly demonstrated by the very short non-parole period fixed.

17. In written and oral submissions it was also submitted by counsel for the appellant that, unusually, Dr Carroll’s report was in effect able to identify why the appellant had offended and why that conduct was an aberration.  It was argued that in these circumstances his Honour erred by considering the appellant’s mental health issues only in the context of the appellant’s personal circumstances and not also as a factor in evaluating the gravity of the offending. 

18. In my view, the sentencing Judge was plainly aware of the import of Dr Carroll’s report in revealing the appellant’s mental state at the time of the offending and appropriately took her opinions into account.  His Honour refers to Dr Carroll’s assessments of the appellant before the offending, her view that there was a direct relationship between the appellant’s psychological condition and the offending, and also accepts the view that the appellant was at a “very low risk of reoffending”.  

19. I do not accept counsel for the appellant’s submission; the fixing of the head sentence at three years, seven months and two weeks is a clear indication that his Honour did take these issues into account when considering the objective seriousness of the offending. It is a moderate to low head sentence.

20. There has been no error demonstrated in the approach of the sentencing Judge to the exercise of the discretion. In these circumstances it is not for an appellate court to intervene when the discretion was properly exercised.

21. It is a very regrettable matter to see a young man with no prior record serve a prison sentence.  However, the offence of rape is one of the most serious offences known to the criminal law. 

22. The decision that the sentencing Judge made in this case does send a strong message of both personal and general deterrence and there is no proper basis for this Court to interfere.

23. I would dismiss the appeal.

24. BLUE J:   I agree.

25. NICHOLSON J:   I agree with Kelly J.