R v Driver

Case [2011] SASCFC 130

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v DRIVER

[2011] SASCFC 130

Judgment of The Court of Criminal Appeal

(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Blue)

11 November 2011

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

Appeal against sentence - appellant sentenced in respect of several offences to 16 years' imprisonment with a non-parole period of ten years - no reduction was made on account of totality - whether sentence was manifestly excessive in light of the mitigating factors put before the sentencing Judge such as the appellant's limited cognitive capacity, youth and lack of antecedents.

Held:  Appeal allowed - sentences imposed by the sentencing Judge are set aside - appellant sentenced to one term of imprisonment in respect of all offending of 11 years and a non-parole period of five years and six months - sentences imposed by sentencing Judge were manifestly excessive - sentencing Judge failed to accord proper weight to the limited cognitive capacity, youth and lack of antecedents of the appellant - the Judge was in error in not applying the principle of totality to the total sentence imposed - discussion of the appropriate non-parole period.

Criminal Law (Sentencing) Act 1988 (SA) s 18A, s 20B, s 23, referred to.
Muldrock v The Queen [2011] HCA 39; R v Mills [1998] 4 VR 235; R v Misokka [1995] VSC 215; R v Edwards (1993) 67 A Crim R 486; Hendy v Kraft (1991) 55 SASR 345; R v GDP (1991) 53 A Crim R 112; R v Randall-Smith (2008) 100 SASR 326; Cameron v The Queen (2002) 209 CLR 339; Reg. v. Portolesi [1973] 1 NSWLR 105, discussed.
R v Mooney (unreported, Supreme Court of Victoria, Full Court, 21 June 1978); Wilcox v The Queen (unreported, Supreme Court of New South Wales, Yeldham J, 15 August 1979); R v Smith [1964] Crim LR 70; Mill v The Queen (1988) 166 CLR 59; Postiglione v The Queen (1997) 189 CLR 295; R v Place (2002) 81 SASR 395, considered.

R v DRIVER
[2011] SASCFC 130

Court of Criminal Appeal:       Gray, Sulan and Blue JJ

THE COURT:           

Introduction

  1. This is an appeal against sentence. 

  2. The defendant and appellant, Aiden Harvey Driver, was sentenced in respect of several offences to a term of imprisonment of 16 years, with a non-parole period of ten years’ imprisonment.  The defendant complains that the overall sentence is manifestly excessive.

    Background Facts

  3. On 27 April 2009, at about 5.15 am, the complainant, who was awake in bed, heard the sound of glass shattering.  The sound was caused by the defendant breaking into the house through the rear door.  The complainant and her husband confronted the defendant, causing him to run away.  In respect of this offending, the defendant pleaded guilty to aggravated serious criminal trespass in a place of residence.

  4. On…

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AGLC
R v Driver [2011] SASCFC 130
Case
[2011] SASCFC 130
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by Aiden Harvey Driver against the sentence imposed upon him for multiple offences, including aggravated serious criminal trespass, assault causing harm, and rape. The appellant had been sentenced to a term of 16 years' imprisonment with a non-parole period of ten years. The appeal was heard by Gray, Sulan, and Blue JJ of the Supreme Court of South Australia.

The central legal issue before the Court was whether the sentence imposed by the sentencing judge was manifestly excessive. This required the Court to consider the weight given to various factors in sentencing, including the gravity of the offences, the impact on the victims, the need for community protection, and the appellant's personal circumstances, such as his cognitive capacity, cultural background, young age, and prior good record.

The Court found that the sentencing judge had failed to accord proper weight to these factors, leading to a manifestly excessive sentence. In resentencing the appellant, the Court took into account the serious nature of the offending and its ongoing impact on the victims, as well as the need for community protection. However, it also considered the appellant's personal and cultural antecedents, his young age, cognitive capacity, prior good record, and prospects for rehabilitation. The Court noted the potential challenges in accessing rehabilitation programs and parole supervision in remote areas of the Northern Territory, which influenced its decision.

The Court allowed the appeal, set aside the original sentence, and resentenced the appellant. The Court exercised its power under section 18A of the Sentencing Act to impose a single sentence, having regard to all the circumstances and the information provided regarding the appellant's suitability for treatment programs and potential parole arrangements.

Orders

Orders of the court

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Background

Background to the litigation

The defendant and appellant, Aiden Harvey Driver, was sentenced in respect of several offences to a term of imprisonment of 16 years, with a non-parole period of ten years’ imprisonment. The defendant complains that the overall sentence is manifestly excessive.Background Facts On 27 April 2009, at about 5.15 am, the complainant, who was awake in bed, heard the sound of glass shattering. The sound was caused by the defendant breaking into the house through the rear door. The complainant and her husband confronted the defendant, causing him to run away. In respect of this offending, the defendant pleaded guilty to aggravated serious criminal trespass in a place of residence. On 16 May 2009, a different complainant returned to her home in the early hours of the morning. She had just gone to bed when she heard a knock on the front door. When she opened the door, there was no-one present. The complainant returned to her room and went to bed. She again heard knocking on the front door. She then heard someone at the back door of the house and heard the sound of glass breaking. She was frightened and telephoned a friend. As she was calling her friend and was about to open her bedroom door, the door was kicked in. The complainant saw the defendant coming towards her. He was wearing a mask. The defendant pushed the complainant on to the bed and subsequently grabbed and pushed her to the floor. She yelled. The defendant placed his hand over her mouth, pushed down on her throat and lifted her on to the bed. He forced the complainant to commit two acts of fellatio. The defendant then forced her on to the floor again and to have vaginal sexual intercourse with him. As this was occurring, she heard voices. The complainant managed to escape from the bedroom to where her friend was at the back door. The friend telephoned the police. The defendant fled. The police arrived shortly thereafter. The complainant sustained physical injuries, including bruising to her shoulders and back. She feared for her life. She is now frightened at night and fearful that she may be attacked again. She suffers depression and panic attacks. She feels ashamed. She has not felt able to tell her family about the incident. The events of 16 May 2009 gave rise to the offences of aggravated serious criminal trespass in a place of residence, assault causing harm and three counts of rape, being the two acts of fellatio and the act of vaginal sexual intercourse. The defendant pleaded guilty to each offence. The defendant also pleaded guilty to two counts of indecent assault which arose from incidents occurring on 6 July 2009. On that date, a third complainant was walking along the Linear Park track when she noticed a person behind her. That person was the defendant. The complainant began to jog to get some distance between her and the defendant. She saw the defendant again as she walked towards Lower Portrush Road. She stopped to allow the defendant to pass and, as he did, he grabbed her on the left buttock. The defendant fled. The complainant ran home. She now fears being out in public alone. She feels unsafe and isolated. She has trouble trusting people. She feels a loss of independence.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The approach of the Judge suggests that the question of reduction was addressed without regard to these principles.Conclusion Having regard to the foregoing, we consider that the sentence imposed was manifestly excessive. The reason is to be found in the failure of the sentencing Judge to accord proper weight to the factors identified above. The sentences imposed should be set aside and the defendant resentenced by this Court. Resentence After the Court reserved judgment, it re-listed the matter and we indicated that we were intending to allow the appeal and to resentence the defendant. We sought further information considered to be relevant to both the appeal and the question of the appropriate sentence. We have been advised by the Department for Correctional Services that the defendant is currently on a waiting list to be assessed for suitability for the sexual behaviour clinic. This is a sex offender treatment program of moderate intensity, usually delivered in the last two years of a prisoner’s sentence. Prisoners are assessed and there can be programs which are tailored specifically for those prisoners with cognitive disabilities, and where there may be cultural considerations. The defendant, as a consequence of the length of his sentence, is subject to oversight by the serious offender committee which considers matters such as his placement in prison, his security rating, prospects of rehabilitation and other individual needs. We are informed that the defendant is located at Port Augusta prison with a fellow prisoner who knows some of the defendant’s relations. The defendant has had contact with Aboriginal support services and agencies which have assisted him to make contact with his family in the Northern Territory. We have also been advised that it is possible for parolees on release to transfer their parole to, in the case of the defendant, the Northern Territory, but that is subject to the Parole Board being satisfied that there are appropriate support systems and rehabilitation programs available. We have been advised that, in the more remote regions of the Northern Territory, there are limited or no rehabilitation resources and limited resources to supervise parolees. We have had regard to these factors in resentencing the defendant. We have earlier in these reasons set out the circumstances of the offending. On any view, it was very serious offending. The effect on the defendant’s victims has been serious, and is ongoing. The circumstances of the defendant’s offending give rise to a need to protect the community. We have regard to these matters. We have also considered the defendant’s personal and cultural antecedents, his young age, his cognitive capacity, his prior good record and his prospects for rehabilitation. We consider that a number of these matters reflect a strong case for a longer than usual non-parole period. The defendant’s offending constitutes an ongoing course of criminal conduct with many features of a like nature. We propose to resentence utilising our power to impose the one sentence pursuant to section 18A of the Sentencing Act.

Ratio Decidendi

Legal Principle Established

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