R v Colbert

[1998] SASC 6801

R  v  COLBERT
[1998] SASC 6801

Court of Criminal Appeal
Coram:  Millhouse, Perry and Nyland JJ

Nyland J

1     This is an application by the prosecution for leave to appeal against sentence.  There is also a cross-appeal with respect to the amount of the discount allowed with respect to the plea of guilty.

2 The respondent pleaded guilty to one count of attempted rape, one count of gross indecency and two counts of rape. On 24 February 1998, a District Court judge imposed one sentence pursuant to s18A of the Criminal Law (Sentencing) Act 1988. He ordered that the respondent be imprisoned for nine years and fixed a non-parole period of five years. The judge indicated that but for the pleas of guilty the sentence would have been 10 years imprisonment. The prosecution seeks leave to appeal on the ground that the head sentence and non-parole period are manifestly inadequate in that (a) the sentence fails to reflect the total gravity and overall criminality of the offences; (b) the sentence fails to reflect the punitive, deterrent and preventative purposes of punishment; (c) the sentence fails to maintain adequate standards of punishment for offences of this nature.

3     The offences committed by the respondent arose out of two separate incidents and involved two separate victims. 

4     The offences of attempted rape and gross indecency occurred on 26 October 1996 and relate to the victim L who was then aged 15 years.  L was walking from the Noarlunga train station to visit a friend at approximately 4 pm.  She heard footsteps behind her.  She looked behind and saw the respondent.  She continued to walk but heard footsteps running behind her.  She again turned round, at which point the respondent grabbed her arms and held them tightly behind her back.  A knife was held to her throat.  She sustained a minor cut to her hand when she tried to push the knife away.  The respondent moved her towards a grassed area near the path on which she had been walking.  He pushed her on to the ground and moved on top of her so that he was sitting on her thigh.  He stuck the blade of the knife into the ground and moved his hands on to her breasts saying he wanted to touch them.  She struggled and tried to get him to stop.  He responded by pinning her arms to her chest and telling her to undo her belt and pull down her pants.  He then undid her belt and jeans and pulled her jeans about halfway down her thighs, together with her knickers.  She screamed at him to get off.  She was frightened that he would hurt her.  He respondent exposed his penis and tried to insert it between her legs.  He endeavoured to insert it in her vagina but her knickers were in the way.  The respondent was unsuccessful in inserting his penis in her vagina and said “Either you suck me off or I keep going with this”.  L told him that she would if he let her do her hair first as she was allergic to grass, this being a ruse to remove the respondent from her body.  She then commenced brushing her hair without re-adjusting her clothing at which point the respondent began to masturbate in front of her.  The respondent eventually ejaculated on to her jeans and knickers.  L got up and pulled up her knickers and jeans.  The respondent asked her where she was going and she told him that she had to get home.  She started to walk away.  The respondent walked after her and eventually caught up with her.  She noticed that he was still holding the knife.  They walked a further distance and the respondent kept making sexual overtures.  L continued to dissuade him from further action.  She eventually managed to get to the house of a friend.  As soon as she entered the house the respondent fled the scene.

5     The victim of the two counts of rape was T.  These offences occurred on 8 November 1996.  T was then aged 22.  The preceding evening, T had been at the Morphett Vale tavern with her boyfriend.  At about 11 pm they left the tavern together and caught the bus to the Noarlunga interchange.  At the interchange they took separate buses to make their way to their respective homes.  T was the last passenger to get off the bus.  The bus driver asked her where she was going and cautioned her to be careful.  T got off the bus and began to walk home.  She crossed towards the oval of the local high school in the direction of her house which was on the other side of the oval.  By then it was about 12.30 am.  T was nervous as a result of what the bus driver had said and kept looking behind her.  When she was halfway between the bus stop and the oval she turned around and saw the respondent about three metres behind her.  She noticed that he was carrying a pair of scissors in his right hand.  T started walking faster but as she quickened her pace so did the respondent.  Just after she reached the oval she turned around and asked the respondent if he was following her.  The respondent did not answer so she walked faster.  The respondent subsequently blocked her way.  She was scared and started to run and he ran after her.  The respondent caught up with her and grabbed her on the tops of her arms and squeezed her tight.  He then pushed her down on to the ground and lay on top of her.  The respondent started feeling her left breast.  He put one hand up inside of her bra and squeezed her breast for about one minute.  He then kissed her on the mouth and all over the neck.  He was still holding the scissors beside his waist.  She said she struggled only a little because she was conscious of the scissors.  The respondent said “Don’t move or I’ll hurt you.  I don’t want to hurt you”.  Thereafter the respondent exposed his penis.  He held it in his hand and said that he wanted a “head job”.  The hand holding the scissors was leaning on the ground beside him.  The respondent started moving his penis in and out of T’s mouth until he ejaculated.  He then lifted T’s skirt up around her waist, pulled down her stockings and underwear and put his penis into her vagina.  This lasted for about 15 to 20 minutes and he again ejaculated.  T said the scissors were still in the same hand.  She said at one stage she asked him to put the scissors down she was scared that he was going to stab and kill her.  A neighbour heard her saying “Don’t, please stop”.  He rang the police and came to her assistance.

6     The respondent admitted that he saw T get on to the bus and had followed the bus for some distance in his car.  The bus driver had noticed the car following the bus and made a note of the registration number.  As a result, the police officers attended at the home of the respondent on 9 November 1996 and arrested him.

7     The respondent was first arraigned in the District Court on 7 April 1997.  He pleaded not guilty to all charges.  In June 1997 a trial date was set for 2 December 1997.  A few days prior to the trial date the court was advised that the respondent would be pleading guilty to all charges. 

8     In the course of hearing submissions as to sentence, the judge had regard to the victim impact statements with respect to both L and T which indicated the significant impact the respondent’s actions had on each of them.  He was also provided with a report dated 11 December 1997 of Mr Alan Fugler, a psychologist and a report dated 15 January 1998 of Dr Lucas, a psychiatrist.  It appeared that the respondent did not have any sexual experience prior to the commission of these offences.  Mr Fugler had regard to letters written by the respondent which suggested he had been fantasising about sexual behaviour which involved an element of power and control.  He considered that the respondent had attempted to obtain sexual gratification through power as a compensation for feelings of inadequacy and impotence with respect to social contact, particularly with females.  Mr Fugler considered that without treatment the respondent was likely to remain within the moderate to high risk category with respect to re-offending behaviour.  

9     Dr Lucas concluded that the respondent did not suffer from a major psychiatric disorder but considered that he had a personality disorder in that his way of life and interest suggested a relatively strong schizoid traits as well as social inadequacies and, as far as women were concerned, serious lack of social and sexual experience.  He had discussed with Mr Fugler the importance of the respondent receiving appropriate treatment while in prison.  Dr Lucas thought the respondent had a reasonable capacity to respond to counselling and more specific treatment given the opportunity to do so.  As the offences in question were the respondent’s first significant problem with the law and they occurred in a limited period of time, Dr Lucas thought it was difficult to say a great deal about the risk of re-offending.  He made it plain, however, that the respondent should be treated with caution and given every assistance.

10   Each of these crimes was a serious example of its type, consisting as it did of a young woman being subjected to violence and threatened with a weapon, in the course of a sexual assault.  In T’s case, she had been stalked by the respondent.  Ms Abraham, for the Director of Public Prosecutions, contended that in the circumstances a starting point of 10 years, prior to the reduction for the guilty plea, was inadequate. 

11   Ms Abraham referred to a number of decisions which she suggested showed the inadequacy of this sentence  In R v Major[1], the prisoner pleaded guilty to six counts of rape, two counts of indecent assault and two counts of burglary committed over a period of 10 years.  The Full Court indicated that the starting point in such a case would be to make the sentences cumulative.  In Major, the Full Court increased the head sentence to 20 years and the non-parole period to 10 years, without apparent interference with the 40% discount allowed for the unusual circumstances in which the prisoner had confessed. 

[1]      (20 March 1998, unreported CCA S6569, per Olsson J)

12   In R v McLintock[2], the appellant pleaded guilty to three counts of rape, the victims being his estranged wife and a family friend.  He had threatened both women with a knife.  The judge at first instance imposed a sentence of 13 years, eight months with a non-parole period of 10 years.  On appeal, the court did not interfere with the head sentence but reduced the non-parole period to eight years.

[2]      (26 June 1998, unreported CCA S6746)

13   In R v Barraclough[3], the victim was a 17 year old school girl returning from school in daylight.  She was waylaid by the appellant who violently assaulted her and placed his finger in her vagina and then his penis.  The appellant received a sentence of six years for the digital rape and 12 years for the vaginal rape to be served concurrently.  He was also sentenced to some further periods of imprisonment for other offences.  On appeal, the court held that the sentence of 12 years imprisonment for vaginal rape was manifestly excessive and reduced that sentence to eight years.

[3] (1988) 144 LSJS 183

14   In R v Creed[4], there were two armed robberies and two rapes.  On the first count of rape there was a sentence of seven years imprisonment and the second, five years imprisonment, to be served concurrently.  On appeal, the court indicated that the sentences were “very low” but declined to interfere with them.

[4] (1985) 37 SASR 566

15   Ms Abraham also referred to the case of R v Draper[5].  This was a case referred to by Mrs Shaw QC for the respondent when she made submissions before the sentencing judge as bearing some analogy to the circumstances of the present case.  In Draper, the prisoner had approached a 13 year old school girl in the street, put his hand down her top, fondled her and sucked her breasts.  He then compelled her to perform an act of fellatio.  After he ejaculated he walked away.  He was charged with one count of rape and one count of indecent assault.  The sentencing judge imposed one sentence for both offences of four years and six months and fixed a non-parole period of two years and six months.  On appeal, Cox J described the crimes as “an horrendous experience” for the victim, which called for “condign punishment, bearing in mind particularly the need for personal and general deterrence”.  He went on to say:

“However, there was more to the case than that.  There were the respondent’s own peculiar sexual impulses which created a special difficulty for him which he had attempted, by seeking treatment in the past, to surmount; and, while it was not a major consideration, the learned judge was entitled to take into account that the respondent had already been the subject of assaults in prison and was therefore obliged to serve his sentence in protective custody.  He has not had to serve a prison sentence before.”

[5]      (23 April 1997, unreported CCA S6135)

16   The court, however, considered that the prosecution had failed to discharge its onus and declined to interfere with the sentence.

17   In this case, counsel for the DPP, at the time of sentencing submissions, also referred to Draper.  He drew the judge’s attention to the comments of Cox J in Draper that the sentence was “at the bottom end of the scale”, and submitted that the present case had more aggravating features, such as the use of a weapon.

18   In the course of argument before this court, Mrs Shaw QC submitted that the sentence imposed in this case was consistent with the result in Major (which was a case of home invasion rape), in which the Chief Justice said “for a single offence of rape an offender might well receive a sentence of about five years imprisonment”. 

19   It is well established, however, that there is no tariff for an offence such as rape.  As Mullighan J said in R v Hitchens[6], (at 336-7):

“The Court has never established  a tariff for rape and, in particular, for the worst type of rape.  The circumstances of that crime and of the offender can vary enormously and it is inappropriate to try and establish a range of sentence by fixing a minimum or a maximum sentence.  The Queen v Wilson[7] is clearly an example of the worst type of rape.  The offender raped three young girls in the presence of adults having coerced and threatened them with a knife.  He was sentenced effectively to imprisonment for twenty-five years at a time before the system of remissions was established.  This was an appalling crime and there was little about that offender which could be used in mitigation.  Also, it must be said that although each of the cases relied upon by Mr Abfalter were undoubtedly serious crimes, there were features about them or the offenders which caused the Court to stop short of imposing extremely long sentences.

The use which can be made of sentences imposed in other cases even for the same crime when assessing the adequacy or otherwise of a particular offence is limited.  As the Full Court said in R v O’Donnell[8] (at 115):

‘This is the position in practically every case where this type of argument is put forward, that the facts of the cases cited are different, the circumstances in which the offence was committed are different, the offender is different, and the matters which have to be taken into consideration by the Judge are different.  It is but rarely that lists of previous sentences, with short notes of the facts appended, are of use to a Court of Criminal Appeal’.

In McNab[9] at p250, Cox J added that in the case of rape sentences, the limitations are especially great.  So, the cases to which we have been referred are of limited use.”

[6] (1995) 184 LSJS 333

[7] (1978) 19 SASR 311

[8] (1974) 7 SASR 114

[9] (1986) 132 LSJS 248

20   In this case, Mrs Shaw QC further argued that there were circumstances surrounding the commission of these offences, arising out of the personal circumstances of the respondent, which made these crimes atypical.  The respondent was 38 years old at the time he committed these crimes.  He had no prior record and had not had any prior social or sexual liaison with any woman.  He was in need of treatment and his lack of antecedents argued for a successful rehabilitation.  Thus the matter was comparable with Draper and supported the sentence imposed by the District Court judge.

21   In considering these matters, I bear in mind that this is an application by the Crown for leave to appeal as opposed to an appeal against sentence by a prisoner.  The test for leave is a high one and it is not sufficient to show that the sentence was inadequate, even that it was manifestly inadequate.

22   In R v Osenkowski[10], King CJ said (at 212):

“It is important that prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges.  There must always be a place for the exercise of mercy where a judge’s sympathies are reasonably excited by the circumstances of the case.  There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender’s life might lead to reform.  The proper role for prosecution appeals, in my view, is to enable the courts to establish and maintain adequate standards of punishment for crime, to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected, and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience.”

[10] (1982) 30 SASR 212

23   I think that the sentence imposed in this case was, to adopt the words of Olsson J in Draper (supra), “a very merciful one”.  Having considered all the circumstances of this matter, I am not persuaded that it is manifestly inadequate.

24   In my opinion, the application for leave should be refused.

25   I now turn to the cross-appeal.

26   The District Court judge reduced the sentence by one year, or 10% as a result of the respondent’s plea of guilty.  He said:

“While you are to be given some discount for your plea, which has saved the victims the ordeal of giving evidence, it is not nearly as great a discount as would have been allowed if you had pleaded guilty before a trial date was set.

This is not a case where the prosecution belatedly accepted an offer to plead, which you made before the trial date was set.  The full discount is only to be given where the accused does what he does at the appropriate time to minimise the utilisation of the resources of the court in disposing of the matter.  That was not the situation here.” 

27   In submissions to the sentencing judge, Mrs Shaw QC submitted that the respondent was entitled to “full credit for his plea” which she said by reference to R v Nixon[11] and R v Sutherland[12], should be about 25%.  The prosecution had been informed at an early date that the respondent would plead guilty to three of the four offences.  There had been some uncertainty on the part of the respondent with respect to penetration which caused a delay with respect to the fourth count but that issue had been resolved by the prosecution subsequently providing a statement to the defence as to a DNA test.  Once that statement was provided, the respondent pleaded guilty to all counts.

[11] (1993) 66 A Crim R 83

[12]     (16 November 1992, unreported CCA 3705)

28   Since R v Shannon[13], it has been well established that an accused person is entitled to a discount with respect to a plea of guilty.  I think it may be useful to re-state the matters set out therein by King CJ which are relevant to that matter.  He said (at 452):

[13] (1979) 21 SASR 442

“(1).. A plea of guilty may be taken into account in mitigation of sentence where -

(a)     it results from genuine remorse, repentance or contrition, or

(b).... it results from a willingness to co-operate in the administration of justice by saving the expense and inconvenience of a trial, or the necessity of witnesses giving evidence, or results from some other consideration which is in the public interest; notwithstanding that the motive, or one of the motives, for such co-operation may be a desire to earn leniency,

and where to allow the plea a mitigatory effect would be conductive to the public purposes which the sentencing judge is seeking to achieve.

(2)A plea of guilty is not of itself a matter of mitigation where it does not result from any of the above motives, but only from a recognition of the inevitable, or is entered as the means of inducing the prosecution not to proceed with a more serious charge.

(3)... In cases falling within (1), the judge is not bound to make a reduction, but should consider the plea with all the other relevant factors in arriving at a proper sentence.

(4)In assessing the weight to be attached to a plea of guilty as a factor making for leniency, it is proper for the judge to bear in mind that it is important to the administration of justice that guilty persons should not cause expense to the public and delay to other cases by putting forward false stories and on the basis of such false stories contesting the charges against them.

(5)... The above propositions are not to be taken as weakening in any way the principle that there must be no increase in the sentence which is appropriate to the crime because the offender has contested the charge.”

29   It is clear therefore that there are any number of matters which are relevant to the assessment by a sentencing judge of the discount to be given in any case.  Obviously, a person pleading guilty to a charge shortly before trial without any reasonable explanation given for the lateness of that plea, could not expect to receive the same reduction in sentence as if the plea had been made on the first occasion on which he or she appeared before the court.

30   In R v Moyle[14], the Full Court indicated that the appropriate allowance for a plea of guilty fell within the range of 15 to 25%, with the lower discount likely to apply to a plea closer to trial.  Care should, however, be taken not to reduce the issue of discount to any rigid mathematical basis.  For example, in Major, the court did not appear to take issue with a discount of 40% allowed for the unusual circumstances in which the prisoner had confessed to his crimes, and in R v Walker[15] where the appellant had voluntarily come forward and confessed in circumstances in which it was unlikely he would otherwise have been apprehended and charged, the court indicated that it would have been appropriate to have given a deduction of about one-third.

[14] (1996) 186 LSJS 462

[15] (1994) 178 LSJS 271

31   In this case, although the plea of guilty to all charges was only forthcoming shortly before the trial, there were matters outlined by counsel which suggest that it may have been appropriate to allow a discount of greater than 10%.  The prosecution at the time of sentencing submissions did not appear to take issue with the “full discount”.  Nevertheless, I am not persuaded that the discount should have been as great as 25%.  I am also mindful of the fact that the respondent has had the benefit of receiving a sentence before discount, which in my view was at the lower end of the scale.  In those circumstances and in the light of refusal for leave, I do not think it is appropriate to interfere with the amount of discount. 

32   In my opinion the cross-appeal should be dismissed.

Millhouse J

33   I agree.

Perry J

34   In my opinion, the sentence imposed in this case was far too low.  It is not, however, so inadequate that it falls within the rare and exceptional category in which it is proper to allow an appeal by the Crown.

35   Because the sentence is so low, I would not be disposed to allow the cross-appeal, even if I thought that there was anything in the suggestion that the learned sentencing judge did not allow a sufficient discount for the plea of guilty.

36   But in any event I do not think that he gave too little credit on that score, given the lateness of the plea and the strength of the Crown case as to identity.

37   Furthermore, I would wish to make it clear that, in my opinion, there is no fixed bracket of percentages to which the court should have regard in fixing the credit to be given for a plea of guilty.  There are some cases where the plea comes so late that the court list is disrupted rather than expedited, and there is no overall saving in public money.  In other cases, the Crown case may be so strong, that the plea is nothing more than bowing to the inevitable.  Furthermore, a plea of guilty may not be accompanied by any genuine remorse.  In all such cases, little or no discount might be appropriate.

38   In the observations which I made in Moyle (supra), I did not intend to suggest that a deduction of 15 per cent to 25 per cent was an appropriate range for all cases.  It was only to be regarded as the range appropriate for that case.

39   Subject to those qualifications, I agree with the reasons published by Nyland J.

40   In my opinion, the application for leave to appeal, and the cross-appeal, should both be dismissed.