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, and the maximum penalty for being on premises for an unlawful purpose is two years’ imprisonment.
On 16 September 2014, the sentencing Judge imposed one sentence pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA) of 18 years’ imprisonment, with a non-parole period of 13 years. The head sentence was reduced by two years from a starting point of 20 years’ imprisonment, to reflect the defendant’s late plea of guilty.
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.
The Judge expressed the view that, for offences of the nature of the defendant’s offending, the safety of the public and the safety of people in their own homes was paramount. The offending had involved threats and violence over a period of approximately four hours. The Judge remarked:
Your counsel made a submission that it did not appear that this offending was planned. I do not accept that submission. Counsel made submissions that you went into the victim’s house to get some peace because you were having a bad time at home. You saw it as a refuge to go to. It is plain to me, from the information that I have been provided with, that you had been into this house on a couple of occasions at least prior to the victim being assaulted. You had obviously taken pornographic movies to the premises; you had them on the television when she came home. You had moved her items around in the house. I do not accept that this offence occurred on the spur of the moment. It was an offence that was planned and considered by you, perhaps in some detail, before you committed it. You had brought tape to the house, you had obviously acquainted yourself with the layout of the house, you committed these offences over many hours. As an immediate neighbour, you were probably aware that she returned to that house every night. You probably knew of her routine in relation to feeding the dogs and checking on her mail.
The Appeal
Counsel for the defendant submitted that the sentence was unreasonable and plainly unjust.[5] It was said that the Judge gave inadequate consideration to the defendant’s personal circumstances. Since the offending, the defendant had reformed and had led a productive and useful life. Counsel referred to the personal circumstances of the defendant, the fact that he had been self-employed all of his adult life, established businesses, provided employment to others, and had been a supportive father to two children. Counsel pointed out that after pleading guilty, the defendant expressed remorse through his counsel.
[5] Dinsdale v The Queen (2000) 202 CLR 321.
Counsel submitted that the Judge was in error in considering that the defendant’s prospects of rehabilitation were poor. Emphasis was placed on his antecedents and to the fact that he had not reoffended in a similar manner in 14 years. It was said that he is not a person who is a risk to the community. Counsel submitted that the sentence of 18 years’ imprisonment, with a 13 year non-parole period, was a crushing sentence, and that the sentence was unjust.
It was not disputed that the offending was extremely serious. MW was attacked in her home. The Judge found that the defendant’s conduct was premeditated and this was not challenged on appeal. MW was sexually violated on many occasions over the four hour period. She was threatened, both physically and with weapons. The offending called for a lengthy sentence of imprisonment.
The issue is whether the Judge placed too much emphasis on personal and general deterrence, and gave insufficient attention to the defendant’s personal circumstances and, as a consequence, imposed a sentence that was manifestly excessive. A further issue is whether the Judge erred in her assessment of the defendant’s prospects of rehabilitation.
In considering counsels’ submissions, we have had regard to previous decisions of this Court which may provide some guide as to the range of sentences for offending of a similar nature. As has been previously observed by this Court, sentences in other matters are of limited assistance, as the circumstances of the offending and the circumstances of the offenders vary significantly. In cases of rape, the circumstances of the offending vary enormously and it is, therefore, difficult to determine an appropriate range of sentence for the offending. Nevertheless, there are cases which provide some assistance.
In Coleman,[6] the defendant pleaded guilty to counts of serious criminal trespass in a place of residence, armed robbery, common assault and two counts of rape. He had entered the house of a 33 year old woman who lived with her son. He confronted her and threatened her with a knife. He was looking for money. He forced the victim’s son to lie face down on a bed. He then walked the victim into a nearby house. He assaulted her when she attempted to pull away, and then raped her by having vaginal intercourse with her and demanded that she perform an act of fellatio. Coleman was an Aboriginal man, aged 22 years at the time of his offending. Unlike the defendant, Coleman had a lengthy criminal record involving offences of breaking and entering and burglary. Coleman was of very low intelligence. He had abused alcohol and drugs. His prospects of rehabilitation were poor.
[6] R v Coleman (2001) 122 A Crim R 230.
Coleman was sentenced to 15 years’ imprisonment, with a non-parole period of 11 years’ imprisonment.
In Walkuski,[7] the defendant pleaded guilty to six counts of rape and one count of aggravated serious criminal trespass in respect of one victim, and two counts of false imprisonment committed against a second victim. The circumstances of his offending were that Walkuski had committed six incidents of rape by inserting his fingers and various objects into the vagina of the first victim whilst she appeared to be sleeping or unconscious. He filmed the acts of penetration.
[7] R v Walkuski [2010] SASC 146.
As to the offence relating to the second victim, Walkuski had been in a relationship with her which had ceased. He was jealous. He was obsessed with her. He broke into her home, threatened her with a hunting knife, tied her up and kept her in a room for a number of hours while threatening to kill her. He then forced her into a motor vehicle and threatened to kill her and then commit suicide.
Three months later, Walkuski again kidnapped the victim and kept her locked in a shed for about 40 hours. He threatened her with weapons, threatened to kill her and then commit suicide. She was eventually released when police raided the property.
Walkuski had an extensive history of criminal behaviour. Walkuski was imprisoned for 17 years with a non-parole period of 13 years.
In Smith,[8] the defendant had a long criminal record, entered the house of his victim, a 77 year old woman, threatened her and then raped her twice. He was also sentenced for the offence of serious criminal trespass and larceny he had committed on an unrelated occasion. He received a total sentence of 15 years’ imprisonment with a non-parole period of 11 years for all of the offending.
[8] R v Smith [2005] SASC 212.
We consider that the Judge gave inadequate consideration to the defendant’s personal circumstances. She concluded that there were doubts about his prospects of rehabilitation. The defendant had not committed a serious offence prior to this offending. He has, with the exception of motor vehicle offences, lived a law-abiding life since the offending. In our view, there is a relatively small risk of him reoffending after his release from imprisonment.
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.