R v Bondarenko - [2015] SASCFC 42

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v BONDARENKO
[2015] SASCFC 42
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Kelly)
2 April 2015
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - PURPOSE OF SENTENCE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCE - PARTICULAR CASES - RAPE AND SEXUAL ASSAULT
Appeal against sentence. The defendant pleaded guilty to being on the premises of the complainant for an unlawful purpose, breaking and entering, assault occasioning actual bodily harm, five counts of rape and false imprisonment. On 4 November 1999, the defendant broke into the complainant's house, threatened her with a knife, assaulted and raped her over the course of a four hour period. The sentencing Judge imposed one sentence of 18 years’ imprisonment, with a non-parole period of 13 years.
Whether the head sentence and the non-parole period were manifestly excessive. Whether the sentencing Judge placed too much emphasis on personal and general deterrence, and gave insufficient attention to the defendant’s personal circumstances. Whether the sentencing Judge erred in her assessment of the defendant's prospects of rehabilitation.
Held per the Court: Appeal against sentence allowed. Sentence imposed by District Court manifestly excessive considering defendant is not a repeat sex offender and has not reoffended in a similar manner since the offending in 1999. Defendant resentenced to a term of imprisonment of 15 years with a 10 year non-parole period.
Criminal Law Consolidation Act 1935 (SA) s 40, s 48 and s 170; Criminal Law (Sentencing) Act 1988 (SA) s 18A; Summary Offences Act 1953 (SA) s 17, referred to.
R v Smith [2005] SASC 212; R v Coleman (2001) 122 A Crim R 230; R v Walkuski [2010] SASC 146; Dinsdale v The Queen (2000) 202 CLR 321, considered.

R v BONDARENKO
[2015] SASCFC 42
Court of Criminal Appeal: Gray, Sulan and Kelly JJ
THE COURT.

This is an appeal against sentence.
The appellant and defendant, Vladimir Bondarenko, pleaded guilty to being on the premises of the complainant, MW, for an unlawful purpose,[1] breaking and entering,[2] assault occasioning actual bodily harm,[3] five counts of rape,[4] and false imprisonment. All offences other than the offence of being unlawfully on premises occurred on 4 November 1999. The offence of unlawfully being on premises occurred when, on an earlier occasion, the defendant had entered MW’s house when she was away.
[1]    Summary Offences Act 1953 (SA) section 17.
[2]    Criminal Law Consolidation Act 1935 (SA) section 170.
[3]    Criminal Law Consolidation Act 1935 (SA) section 40.
[4]    Criminal Law Consolidation Act 1935 (SA) section 48.
The maximum penalty for each count of rape is life imprisonment. The maximum penalty for breaking and entering is eight years’ imprisonment. The maximum penalty for assault occasioning actual bodily harm is five years’ imprisonment,…

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 Bondarenko

Details

AGLC: R v Bondarenko [2015] SASCFC 42
Case: [2015] SASCFC 42
Decision Date: 2 April 2015

CaseChat Overview and Summary

The appeal concerned the sentence imposed on the respondent, Mr Bondarenko, by the District Court for sexual offences committed against his neighbour, MW. The sole ground of appeal argued by Mr Bondarenko was that the head sentence and non-parole period were manifestly excessive.

The court was required to determine whether the sentence of 18 years imprisonment, with a non-parole period of 16 years, was manifestly excessive given the circumstances of the offending and the respondent's personal history. This involved considering the purpose of sentencing, the nature and gravity of the offences, the respondent's lack of prior sexual offending, his age, his employment history, his family relationships, and the significant period of time that had elapsed between the commission of the offences and his sentencing.

The Court of Appeal found that while the offences were serious and involved significant violence and degradation, the sentence imposed was excessive. The court noted that Mr Bondarenko was 50 years old, had no prior sexual offending, and had not offended again for many years. The offending occurred when he was 35 and his life was described as spiralling out of control due to personal difficulties. The court considered that a lengthy sentence would have a significant impact on the rest of his life.

Allowing the appeal, the Court of Appeal set aside the District Court sentence and resentenced Mr Bondarenko to 15 years imprisonment, with a non-parole period of 10 years, taking into account his guilty plea. The sentence was backdated to 7 July 2014.

Orders

Orders of the court

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Background

Background to the litigation

The sole ground of appeal is that the head sentence and non‑parole period are manifestly excessive.Background In 1999, the defendant and his victim, MW, were neighbours. From about September 1999, MW was not staying at her home. On occasions when returning to her home, she noticed that items had been moved and a window had been broken. On 4 November 1999, when entering the house, she noticed that the lounge room door was open and the television was switched on. A pornographic film was playing. An item of her underwear was lying on the floor. As MW walked down the hallway, the defendant ran at her with a large knife. He was naked from the waist down. A violent struggle ensued. The defendant overpowered MW. The defendant used material and duct tape to cover MW’s face and he bound her wrists. He threatened to kill her, and he punched her. He sexually assaulted her over the next four hours, involving vaginal and anal intercourse. He performed cunnilingus and forced MW to commit acts of fellatio. MW estimated that she was penetrated about 100 times. She thought she was going to die. In 2000, when spoken to by police, the defendant declined to provide a DNA sample. In 2012, pursuant to a court order, he was compelled to provide a saliva sample for the purpose of testing for DNA. This sample, when tested, matched a pubic hair left by the defendant at the MW’s house. When interviewed in October 2012, the defendant denied any offending. He continued his denial until about a week before trial. On the morning of trial, he pleaded guilty. MW suffered significant injuries consequent upon the assault. She suffered multiple lacerations and abrasions and a wound to the area of her genitals. She suffered internal injuries to her rectum. She had injuries to the inside of her mouth. The defendant had prior convictions, primarily for motor vehicle offences including driving under the influence of alcohol. The defendant has had a problem with alcohol. At the time of sentencing, the defendant was 50 years of age. He had no prior offending of a like nature. The offending occurred when the defendant was 35 years old. He is divorced. He has two children with whom he has a good relationship. He continued to support his family. He had been in regular employment for approximately 25 years as a steel fixer. For most of this period he was self-employed. He employed one of his sons. Over the period of 15 years between the commission of the crimes and his arrest the defendant did not offend, with the exception of motor vehicle offences. In sentencing the defendant, the Judge observed that her Honour had little information from the defendant about the offending. The defendant’s counsel informed the Judge that, at the time of the offending, it was a difficult time in the defendant’s life and that his marriage was falling apart. His life appeared to be spiralling out of control. The Judge considered that the defendant had shown little remorse and that he had shown a lack of insight. The Judge expressed concerns about whether the defendant had good prospects for rehabilitation. The Judge gave little credit to the fact that the defendant had not committed any similar offences since 1999.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The defendant is now 50 years of age. A lengthy sentence will have a significant effect on the rest of his life. A sentence of 18 years’ imprisonment for a person who is not a repeat sex offender and in circumstances in which he has not offended again for many years is, in our view, manifestly excessive. The offending was isolated and at a time when the defendant’s life had spiralled out of control.Conclusion We allow the appeal. We set aside the sentence imposed in the District Court. We resentence the defendant to a term of imprisonment of 15 years, reduced from 16 years on account of his guilty pleas. We fix a non‑parole period of ten years’ imprisonment. The sentence and non‑parole period are to commence on 7 July 2014, when the defendant was taken into custody.

Ratio Decidendi

Legal Principle Established

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