R v Daly No. Sccrm-99-138 Judgment No. S428

R v Daly
[1999] SASC 428

Court of Criminal Appeal: Doyle CJ, Debelle and Wicks JJ

DOYLE CJ. The appellant appeals against sentences imposed by the District Court. There are five sentences in all, all but one of them relating to more than one offence. Some of the sentences are cumulative, and some are concurrent.
The appellant pleaded guilty to all of the offences.
I begin by identifying the charges and the sentences imposed.
The appellant was sentenced on nine counts of rape, charged on a single information. On those counts he was sentenced to imprisonment for 14 years, after a deduction of three years on account of the plea of guilty.
The same information charged three counts of breaking and entering premises and committing larceny. For those counts the appellant was sentenced to imprisonment for 18 months, after a deduction of six months on account of the guilty plea. That sentence was cumulative on the first sentence.
Another information charged two counts of break and enter and larceny. For these the appellant was sentenced to imprisonment for 12 months, after a deduction of four months on account of the plea of guilty. On a complaint removed into the District Court, the appellant was charged with illegal use of a motor vehicle. On that count he was sentenced to imprisonment for nine months, after a deduction of three months on account of the plea of guilty. A further information charged two counts of larceny. For these the appellant was sentenced to imprisonment for 12 months, after a deduction of three months on account of the plea of guilty. The sentences imposed in respect of the offences charged on these three informations were ordered to be served concurrently, but as a group to be served cumulatively upon the other two sentences.
The end result was a total head sentence of 16 years, six months. The judge fixed a non parole period of 13 years.
The submission on appeal is that the sentences are manifestly excessive.
The rape offences were committed on 5 December 1998, over a space of about two hours. The same woman was the victim in each case. What follows is a brief summary of the offences. My purpose is to give an indication of the seriousness of the offences. The summary does not purport to be comprehensive.
The victim was a 21 year old woman, who lived in a small town in the north of the State. She was walking home alone at about 3.00am. The appellant seized her from behind, and pushed her to the ground with considerable force. He turned her on her back and struck her twice in the face. He put his hand over her mouth to stop her screaming. He roughly pulled off the victim's lower clothing, and raped her. He then made her get dressed, and dragged her off the path on which she had been walking and into some bushes. He handled the woman very roughly. He kicked her in the ribs. He then threw her to the ground and sat on her chest. He produced a knife and told the victim that if she screamed he would stab her. He again very roughly removed the victim's lower clothing and committed further rapes. During these further rapes he treated the victim very roughly. One of these rapes was a penile rape and it caused the victim considerable pain. The victim was proved to be face down in the dirt during this rape. The appellant told the victim to dress herself and then, having grabbed her by the hair of her head, walked and dragged the victim for some distance across a roadway and into some scrub. Once again, the victim was treated roughly. The appellant still had the knife in his hand. After walking some distance he pushed the victim to the ground, and made her undress herself completely. Further rapes were then committed, and once again the victim suffered considerable pain. The appellant told the victim to get dressed again, and walked her further through the bush. In the course of this he told the victim that he might kill her and leave her in the bush. After a while the appellant stopped. He told the victim to undress again and committed further rapes, again causing the victim pain. Again, his treatment of the victim was very rough. Having made some threats to the victim, the appellant then dressed himself and made his escape.
The appellant was charged with the offences about a week later.
There were, as I have already said, nine counts of rape. Some were penile, one involved digital penetration, two involved fellatio and three involved cunnilingus. The offences were committed over a substantial period of time. Throughout this time the appellant treated the victim very roughly. He showed a callous disregard towards her. He threatened her with a knife, and made threats to kill her that must have seemed quite realistic. The victim suffered a number of soft tissue injuries and cuts and bruises. Her wrist was placed in plaster as a precaution, although it appears that it was not broken. She suffered either very sore ribs or from two broken ribs. The victim impact statement indicates, not surprisingly, that the incident has had a significant lasting effect on the victim.
All in all, the rape offences are about as bad as one can expect to encounter, short of an offence in which really serious bodily harm is caused to the victim.
All of the breaking and entering offences were committed on premises in the same town. Two of them were committed in June 1998, and three in December 1998. The value of the property involved is not significant. The two larceny offences were committed in July 1998, and involved property to the total value of $4,000. The illegal use offence was committed in July 1998, and again in the same town.
The appellant was almost 20 years of age when sentenced. He is single. There is nothing exceptional about his upbringing. A psychiatrist who examined him said that he had an extensive history of behavioural problems from about ten years of age. The appellant could offer no explanation to the psychiatrist for his sexually aggressive behaviour. He appeared to the psychiatrist to be genuinely ashamed about what he had done. The psychiatrist considered that the appellant suffered from a personality disorder with anti-social features. He was unsure whether the sexual offences were related to a problem of sexually irresponsible behaviour, or whether they were the result of disinhibition resulting from the abuse of alcohol and drugs. The appellant says that the dishonesty offences he committed were committed to obtain money to purchase drugs, and that for some time he has abused alcohol and other drugs. The judge noted that the statement of the victim, and the appellant's behaviour, suggested that he was not significantly affected by alcohol when committing the rape offences. The judge also noted that the appellant had pleaded guilty to all offences at an early stage, and that he was entitled to credit for that. Finally, the appellant had been before the Youth Court on three occasions. Two of those were traffic offences. One of them involved three dishonesty offences in 1994. Accordingly, the offences now under consideration were the first occasion on which the appellant had appeared before a court as an adult, and were the first occasion upon which he faced imprisonment.
Counsel for the appellant submitted that the sentence for the rape offences was excessive. In passing sentence, the District Court judge said that rape offences often attract a penalty of imprisonment for between five and eight years, and that multiple rapes involving multiple victims attract sentences of twenty years imprisonment or more. The judge said that the rape offences were nearer the top than the bottom of the scale of seriousness. He said that he had been careful to avoid imposing a sentence that was a crushing sentence for someone as young as the appellant.
In support of his submissions, counsel for the appellant referred to the decision of this court in R v Major (1998) 70 SASR 488. In that case the offender pleaded guilty to six counts of rape, two counts of indecent assault and two counts of burglary. The offences were committed over a ten year period. They came to light as a result of the offender attending at a police station and admitting his offending. But for that, it is unlikely that the offender would ever have been detected. On appeal, the court increased the sentence imposed upon the offender to a sentence of imprisonment for 20 years, with a non parole period of ten years. Counsel for the present appellant put the submission that Major involved multiple offences, over an extended period of time with plenty of time for the offender to reflect. In contrast, in the present case the offences were committed as part of a single incident, involved a single victim, and over a period of time during which there was no real opportunity to reflect. As to the latter point, I comment that while it has some force, the appellant's offences involved four distinct stages, and there was time between each stage for the appellant to reflect upon what he was doing and to desist from further offending. Nevertheless, there is some force in the point that counsel for the appellant makes about the contrast with Major. On the other hand, there were some powerful mitigating circumstances in Major that are not present in this case. As well, some of the offences dealt with in Major were committed at a time when sentences for rape were generally lower than at the time when Major was sentenced. It is also relevant that the totality principle operated to hold down the total sentence imposed in Major.
We were referred by counsel to a number of other cases.
I consider that the judge's starting point of 17 years for the sentence was appropriate. It was not excessive. When one bears in mind that a single offence of rape frequently attracts a sentence of imprisonment of about six or seven years, the number of offences involved, the fact that there were four distinct stages, and the general brutality of the appellant's conduct, it becomes impossible to say that the sentence imposed was excessive. Nor, do considerations of totality require that a lesser sentence be imposed. Generally, a court will not impose a sentence of imprisonment that will crush any hope of reform, and any reasonable expectation of a useful life after release. However, although the principle of totality is an important matter for consideration, it cannot entirely displace other considerations. Taking everything into account, I do not consider that the principle of totality requires a reduction in the sentence imposed on the rape counts.
As to the five break and enter offences, I consider that generally the sentences were appropriate. However, when the first two were committed the appellant was only nineteen years of age. If sentenced on them alone, he would have been sentenced as a young man appearing in an adult court for the first time, and with only three dishonesty convictions occurring when he was about fifteen years of age. The relevant offences are the two break and enter offences on the one information. Under the circumstances, I consider that the sentence for those two offences should be reduced from 12 months imprisonment to six months imprisonment, but that will make no effective difference because the judge in any event made the sentences for these two offences concurrent with other sentences.
It follows that, in my opinion, the remaining matter for consideration is whether bearing in mind the appellant's age, his prospects of rehabilitation, and considerations of totality, the total sentence is excessive.
The fact that the appellant is a young man does not mean that rehabilitation becomes the predominant purpose. As well, I must say that while there are indications that the appellant is contrite, the prospect of a successful rehabilitation are not clear. I do not agree with the submission by counsel for the appellant that he is obviously a good candidate for rehabilitation. He might be, but one cannot be confident of that. The application of the totality principle is more difficult. The sentence imposed means that the appellant, having entered prison at the age of 19, will not emerge from prison until he is in his thirties.
The totality principle is not easy to apply. It is a principle which, when invoked, causes the court to mitigate what is otherwise appropriate punishment. The punishment is mitigated by considering the overall criminality involved in all the offences, and the totality of the offences: see Postiglione v The Queen (1997) 189 CLR 295 at 308 McHugh J. There is necessarily an element of impression in that. As well, another factor that operates is the concept of the justified sentence becoming so crushing as to call for intervention by the court on the basis of mercy: Moyse (1988) 38 A Crim R 169 at 170 Jacobs J, R v Brett (1987) 140 LSJS 343 at 345 King CJ.
This is the part of the case that I find most difficult. In isolation, I have no doubt that the sentences imposed are, subject to the one adjustment that I have mentioned, quite appropriate for the offending. It follows that, in a sense, even when the overall criminality is considered, the sentences are appropriate. However, there is a sense in which the total head sentence of 16 years and six months can be said to be crushing for a young man of 19.
I have no doubt that the judge considered the issue of totality. He referred to it in express terms in relation to the sentence for the rape offences. He did not refer to it again, but it does not follow that he did not consider it separately at the end of the exercise. After a good deal of thought, I have come to the conclusion that the head sentence cannot be regarded as excessive on this basis. Imprecise as the principle of totality is, it cannot obscure the seriousness of the criminality in which the appellant has been involved. However, when I come to the non parole period I consider that there is, on the basis of mercy, good reason to reduce the non parole period fixed by the judge. The non parole period is a relatively high proportion of the total head sentence. I consider that a non parole of 11 years is appropriate. This means that if the appellant demonstrates that he is a good candidate for parole, he will be able to be released and will still serve a substantial period on parole. Apart from considerations of totality, I consider that his age, and the fact that he was appearing before an adult court for the first time, are further reasons to lean in the direction of mercy in the fixation of the non parole period.

Conclusions

For those reasons I would set aside the sentence imposed on the information MCPAU-98-2022, and substitute a sentence of imprisonment for six months. I would not otherwise interfere with the head sentences fixed by the sentencing judge, or with the orders that he made for cumulation and for concurrency of the sentences. I would set aside the non parole period fixed by the judge and substitute a non parole period of 11 years, and direct that the non parole period commence on 13 December 1998.
DEBELLE J. I have had the advantage of reading the reasons of the Chief Justice. I agree there is no basis for altering the head sentence. It was not, in all the circumstances, manifestly excessive.
However, I am unable to agree that the non-parole period is also manifestly excessive. While I agree that the non-parole period is a relatively high proportion of the total head sentence, and while regard must be had to the fact that this is the first occasion on which this young man has been before an adult court, the fixing of the non-parole period was within the proper sentencing discretion of the judge. He has obviously been influenced by the shocking nature of this rape. I do not think any basis has been demonstrated for interfering with the exercise of his sentencing discretion.
WICKS J. I agree with the orders proposed by Doyle CJ for the reasons he gives.

[1999] SASC 428

21 October 1999