R v Bock

[2003] SASC 52

R  v  BOCK
[2003] SASC 52

Court of Criminal Appeal:  Doyle CJ, Duggan and Gray JJ (ex tempore)

1. DOYLE CJ:           This is an application for leave to appeal against sentence. The applicant pleaded guilty to one count of false imprisonment, three counts of indecent assault, one count of rape, and one count of attempted rape.

2. The maximum penalty for rape is life imprisonment. The maximum penalty for indecent assault is eight years imprisonment. The maximum penalty for attempted rape is 12 years imprisonment. The maximum penalty for false imprisonment is at large.

3. All offences arose out of one incident involving a young 13 year old girl. The crimes are extremely serious. There was an element of preparation in them. The young girl was abducted while walking home late afternoon along the street of a country town. She was bound with tape and treated in a terrible manner. The appellant kept her in his motor car for some hours, during the course of which time the offences were committed.

4. The circumstances of the offending would have been terrifying for the victim. Not surprisingly, the Judge’s sentencing remarks disclose that the incident has had a significant adverse affect on the unfortunate victim.

5. The offending is of a kind which causes great public concern. The very idea that a child can be abducted from a public street in broad daylight and sexually assaulted is deeply troubling.

6. The applicant pleaded guilty at an early stage and has expressed remorse and sorrow.  He has apologised for what happened. He still has the support of his family. He has a good work record. There are aspects of his background that invite sympathetic consideration.  It is clear that the offending is out of character.

7. However, as I have already said, the offences are extremely serious and the mitigating circumstances must be viewed in that context.

8. The applicant complains that the sentence is manifestly excessive. In my view, there is no reasonable prospect of that argument succeeding. The Judge imposed a single sentence of thirteen years six months imprisonment and set a non-parole period of nine years imprisonment. But for the plea of guilty, he would have imposed a head sentence of 18 years imprisonment.

9. The reduction that he made was on account of the plea of guilty and contrition and, I would infer, other mitigating circumstances such as they were.

10. My firm view is that, making allowance for everything identified by counsel for the applicant, there is no prospect of attacking the starting point, the head sentence or the non-parole period on the ground that they are excessive.

11. The other ground advanced by the applicant is that the Judge failed to have regard to the fact that the applicant was likely to serve much or all of his sentence in protective custody.  That brings with it adverse effects on the applicant. It is correct that the Judge makes no reference to this in his sentencing remarks. Nevertheless, it is so well known that this is an aspect of sentencing persons who have committed sexual offences involving children, that I cannot accept that the Judge overlooked it. In any event, this is a matter to which little, if any, weight can be given.

12. The same applies to the submission that the Judge did not make adequate allowance for the fact that the applicant had not previously served a prison sentence. I acknowledge the sentence is a heavy one, particularly for a person who has not previously served a sentence of imprisonment, but in sentencing such an offender for such offences the Court must have regard to the level of public concern about the offences in question and to the overall criminality. These offences are so serious that the scope for mitigation is reduced.

13. I would refuse leave to appeal on the ground that there is no reasonable prospect of the appeal succeeding.

14. DUGGAN J:         I agree that the application for leave to appeal should be dismissed for the reasons given by the Chief Justice.

15. GRAY J:                I agree and have nothing to add.

16. DOYLE CJ:           Accordingly, the order of the Court is that the application for leave to appeal against sentence be refused.