R v Betts - [2009] SASC 305

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v BETTS
[2009] SASC 305
Judgment of The Court of Criminal Appeal (ex tempore)
(The Honourable Justice Duggan, The Honourable Justice Sulan and The Honourable Justice Kourakis)
24 September 2009
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
Application for permission to appeal against sentence – applicant found guilty by jury of one count of rape and one count of attempted rape – applicant sentenced to a term of seven years’ imprisonment – Judge fixed non-parole period of four years and six months – whether sentence manifestly excessive – whether Judge gave proper weight to applicant’s aboriginality, background and intoxication – whether Judge gave proper weight to applicant’s lack of remorse.
HELD: Permission to appeal refused - not reasonably arguable that sentence manifestly excessive or that Judge erred in any respect.
R v Sumner & Sumner [2007] SASC 379, discussed.

R v BETTS
[2009] SASC 305
Court of Criminal Appeal: Duggan, Sulan and Kourakis JJ

DUGGAN J (ex tempore): This is an application for permission to appeal against sentence. The applicant was found guilty by verdict of a jury of one count of rape and one count of attempted rape.
The victim had met the applicant on one occasion before the incident, but did not know him by name.
On the occasion of the offences, the applicant arrived at the house of an acquaintance of both the victim and the applicant. The applicant, the victim and others then took part in a drinking session. The applicant became grossly intoxicated and consumed drugs during the episode at the home. The victim was intoxicated to a lesser extent.
The applicant made sexual advances to the victim and the victim rebuffed him. When the other people eventually left the premises, the applicant attacked the victim. He took off her clothes, attempted an act of fellatio and then had vaginal sexual intercourse with her. Eventually the victim ran from the house. She had made a previous attempt to leave, only to be grabbed by the applicant and then taken back to the bedroom.
The incident has had a significant effect on the victim. She has undergone counselling and she explained in her victim impact statement that her lifestyle has changed considerably as a result of the incident.
The applicant was sentenced to imprisonment for seven years with a non‑parole period of four years and six months. He was refused permission to appeal by a single judge and now applies to this Court for permission to appeal.
The proposed grounds of appeal are set out in a document which was forwarded to the court. The first ground claims that the sentence is manifestly excessive. The other grounds refer to specific aspects of the sentencing which will become obvious in the course of these remarks.
According to the submissions made on behalf of the applicant, the non‑parole period imposed by the court was manifestly excessive when compared with sentences for offences of rape for which similar periods of imprisonment have been imposed.
Counsel referred to the case of R v Sumner and Sumner.[1] This was a case in which two offenders were convicted of multiple rapes on the one complainant. The rapes were committed as part of the one incident. There was an appeal by the Director of Public Prosecutions against the sentences imposed on the men and the Court of Criminal Appeal increased the sentences to imprisonment for eight years, with non-parole periods of four years. Ms Mansfield, for the applicant, submitted to us that this is a relevant case for comparison purposes with the sentence passed in the present case. According to the argument the sentence for the present offences should be significantly lower.
[1] [2007] SASC 376.
In the course of his judgment in the case of R v Sumner and Sumner, White J said at [76]:
The court was referred during the course of submissions to a number of cases in which sentences for multiple offences for rape on one victim have been considered. I do not consider that either a review of those authorities or a comparison of the sentences imposed would be useful. The circumstances considered in the cases vary widely, as do the aggravating features which were present. This court has spoken many times of the limited use which can be made of the sentences imposed in other cases.
Those remarks clearly apply to the present case as well. Later in his reasons His Honour said:
In my opinion the minimum single sentence which could have been imposed, after taking account of all the matters favourable to the respondents, was a sentence of imprisonment of eight years. But for the constraint that essentially governs the court in substituting a sentence on a Crown appeal, and the youth of the respondents at the time of the offences, that sentence could well have been higher. In determining upon a sentence of eight years, I have also taken account of the steps towards rehabilitation which each of the respondents took in the period of two and a half years before they were charged and subsequently.
The other members of the Court agreed with those reasons. This is a clear illustration as to why this particular case is of no real use for comparison purposes in the present case.
Counsel for the applicant also complained that insufficient weight was given to the applicant’s aboriginality and intoxication. In my view, these factors have some relevance in this case, but the sentencing judge gave consideration to the social and cultural background of the applicant, including the extensive report prepared by the clinical psychologist, Ms Hackett. He also referred to the applicant’s intoxication.
There is a further complaint that the learned sentencing judge erred in placing too great an emphasis on the applicant’s lack of remorse.
In the course of his sentencing remarks the judge drew attention to comments made by the applicant. The judge said that what the applicant stated to the psychologist reflected lack of remorse and a denigration of the victim. Later in his remarks His Honour said:
You can be given no credit for remorse, however, I make it clear that you will not receive a heavier sentence by reason of having pleaded not guilty or by reason of what you said to the psychologist.
It cannot be said that the sentencing judge used the applicant’s lack of remorse in an inappropriate manner in the light of these comments.
Then it was submitted that the sentencing judge made a factual error when sentencing the applicant. His Honour referred to the fact that the applicant had grown up in a foster home. His Honour said:
You were generally loved and well cared for growing up, but you felt different because of your colour.
According to the submission this does not properly reflect the applicant’s background as described in the report of the psychologist. However, the psychologist who examined the applicant at the request of the applicant’s solicitors said in her report:
Mr Betts reported that he did not get into trouble as a child when he was living with his foster family and “felt loved, but felt different”.
It is clear that the judge’s remarks on this issue accurately reflected the content of the report.
Obviously the applicant had a traumatic childhood and that is a matter of some relevance, but it cannot be argued that the sentencing judge ignored this history. Indeed, he specifically referred to the applicant’s alienation in his sentencing remarks.
The applicant was 41 years of age at the time he was sentenced. He has a long list of previous convictions which, as the judge pointed out, cannot increase the sentence but which are relevant in deciding the extent to which the applicant could be shown leniency and the extent to which regard should be had to his prospects of rehabilitation.
In my view it is not reasonably arguable that the sentence is manifestly excessive or that the trial judge erred in any respect.
I would refuse permission to appeal against sentence.
SULAN J: I would refuse permission to appeal against sentence. I agree with the reasons of Duggan J.
KOURAKIS J: I too would refuse leave to appeal against sentence for the reasons given by Duggan J.