R v Heinze

[2017] SASCFC 155

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v HEINZE

[2017] SASCFC 155

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Stanley and The Honourable Justice Hinton)

23 November 2017

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - IMPROPER ADMISSION OR REJECTION OF EVIDENCE

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - JUDGE ACTED ON WRONG PRINCIPLE

Appeal against conviction and sentence imposed in the Supreme Court.

The appellant agreed to drive Ms F and Ms R, two young female backpackers, from Adelaide to Melbourne. They stopped on a beach at the Coorong. There, while Ms R was sleeping, the appellant threatened Ms F with a knife, tied her up, cut off her bikini, indecently assaulted her and punched and spat on her. During the assault Ms R awoke, saw what was happening, shouted at the appellant, and then was pursued by him. He struck her with a hammer including on her head. For a period both victims managed to escape where they agreed to split up. The appellant pursued Ms R through the sand dunes in his car and hit her with it a number of times. Ms R, being heavily injured and concerned for her safety, eventually got into the appellant’s car.

Ms F escaped to the beach where she pulled over a passing car. She screamed at the men who picked her up to take her away, and complained that the appellant had tried to rape her. Another group of men who helped Ms F also heard her speak of rape. The Judge admitted those complaints as evidence of the circumstances of the initial complaint for the purposes of s 34M of the Evidence Act 1929 (SA). The appellant, after being pursued, eventually released Ms R.

The Judge also admitted evidence of rape pornography found on the appellant’s computer which depicted acts similar to the offences against Ms F. That evidence was received through an investigating officer who described what he had seen.

The appellant appeals his conviction on the grounds that the rape pornography evidence was improperly admitted and that the Judge misdirected the jury as to the use of both that evidence and the complaint evidence.

The appellant was sentenced for the above offending and for another offence of indecent assault as well as a breach of bond to 22 years and four months imprisonment and a non-parole period of 17 years. The appellant appeals his sentence on grounds that it was not proportionate, there ought to have been greater concurrency as between the sentences and that the Judge took into account irrelevant considerations.

Held per Kourakis CJ (Stanley and Hinton JJ agreeing), dismissing the appeals against both conviction and sentence:

1.     The rape pornography evidence was properly admitted to evaluate the testimonial account of Ms F against the coincidence that the appellant would possess pornography depicting events similar to those he perpetrated.

2.     The Judge properly directed the jury as to the above use of the rape pornography evidence and appropriately warned the jury against propensity reasoning.

3.     The Judge properly directed the jury to the use of the complaint evidence as evidence of how that complaint was made and not to rely on the complaint for the truth of its contents.

4.     The Judge’s sentencing remarks correctly recognised that protection of the community assumed great importance, the ability to safely enjoy nature is an aspect of that consideration.

5.     The sentences imposed by the Judge were long but not excessive. Having regard to the gravity of the offending it was within the Judge’s discretion to structure the sentence as her Honour did. The totality of the sentence was appropriate.

Held per Hinton J (Stanley J agreeing):

1. The rape pornography evidence was admissible pursuant to s 34P(2)(b) of the Evidence Act 1929.

2. The directions given by the Judge in compliance with s 34R of the Evidence Act 1929 were adequate. That the rape pornography evidence was admissible under s 34P(2)(b) of the Evidence Act 1929 called for no further direction.

Criminal Law Consolidation Act 1935 (SA) s 20, s 23, s 24, s 29, s 39, s 56; Criminal Law (Sentencing) Act 1988 (SA) s 18A; Evidence Act 1929 (SA) s 34M, s 34O, s 34P, s 34R, referred to.
Veen v The Queen (No 2) (1988) 164 CLR 465, applied.
R v C, CA [2013] SASCFC 137; R v M, BJ (2011) 110 SASR 1; R v MJJ; R v CJN (2013) 117 SASR 81; Thompson v The King [1918] AC 221, discussed.

R v HEINZE
[2017] SASCFC 155

Court of Criminal Appeal: Kourakis CJ, Stanley and Hinton JJ

1. KOURAKIS CJ:         This is an appeal against convictions for the following offences committed against Ms F:

   ·Kidnapping with intent to rape, aggravated by the use of a knife;[1]

   ·Indecent assault;[2]

   ·Cause harm with intent to cause harm;[3]

   and against the following convictions for offences committed against Ms R:

   ·Aggravated attempt to cause serious harm with intent to cause serious harm;[4]

   ·Endanger life;[5]

   ·Aggravated assault[6]

   [1] Contrary to s 39(1)(b) of the Criminal Law Consolidation Act 1935 (SA).

   [2] Contrary to s 56 of the Criminal Law Consolidation Act 1935 (SA).

   [3] Contrary to s 24(1) of the Criminal Law Consolidation Act 1935 (SA).

   [4] Contrary to s 23(1) of the Criminal Law Consolidation Act 1935 (SA).

   [5] Contrary to s 29(1) of the Criminal Law Consolidation Act 1935 (SA).

   [6] Contrary to s 20(3) of the Criminal Law Consolidation Act 1935 (SA).

2. The appellant also appeals against the sentences imposed for that offending.

3. Ms F and Ms R were two young women who were overseas tourists in Australia.  The appellant, who was aged 59 at the time, contacted them through a website and offered to drive them to Melbourne on a trip that would include camping along the way.  The offences were committed on a relatively isolated stretch of beach at the Coorong.   The aggravated kidnaping offence against Ms F was committed by binding her arms behind her back and attempting to push her bikini bottoms in her mouth. 

4. The direct evidence adduced against the appellant was primarily the testimonial accounts of Ms F and Ms R, as well as a number of fishermen to whom Ms F complained of being sexually assaulted and who observed her distressed state (the complaint evidence).  The Judge directed the jury that the complaint evidence was admitted in part to give them ‘a more complete picture of what happened out there’. 

5. At trial the prosecution was also permitted to adduce evidence of audio‑visual material found on the appellant’s mobile phone and computer.  The material included searches for, and images of, sexual assaults on women whose arms were bound with rope and/or who had some form of gag in their mouths (the rape pornography evidence).  The Judge directed the jury that they could evaluate the testimonial account of Ms F against the coincidence of the appellant’s possession of the rape pornography evidence.  In giving that direction the Judge referred to using the rape pornography evidence to assess Ms F’s ‘honesty and reliability’ and told the jury that it was open to it to find that the appellant had an interest in sexual activity involving bondage. 

6. The appellant appeals on the grounds that:

   1The Judge erred in admitting the rape pornography evidence found on the appellant’s electronic devices.

   2The Judge misdirected the jury in relation to the manner it could use the rape pornography evidence.

   3The Judge misdirected the jury as to the use of the complaint evidence.

7. The evidence of the possession of the rape pornography was properly admitted because of its strong probative value.  It was highly improbable that Ms F fabricated or concocted her account of the offences committed on the beach by a person, the appellant, who, unbeknown to her at the time she made the allegations, happened to have a prurient interest in the rape of bound and gagged women.  I will refer to reasoning in that way as the ‘improbability of fabrication use’ or the ‘improbability use’ of the rape pornography evidence.  The Judge’s direction properly left to the jury that improbability use.  Despite the Judge’s reference to the assessment of Ms F’s reliability and honesty, the substance of the Judge’s direction was not to use the rape pornography evidence collaterally as to her credit.  The Judge’s direction was that the rape pornography evidence corroborated Ms F’s account of the facts in issue and therefore enhanced the weight of her testimony. 

8. The rape pornography evidence was also capable of proving that the appellant had a propensity, or was inclined, to commit offences of that kind but, of course, there were considerable difficulties in coming to that conclusion from the possession of the rape pornography alone.  A person may have an interest in viewing material of a particular kind without having any propensity or proclivity to engage in the same activities.  In this case a propensity to commit rapes in the way depicted by the rape pornography might be inferred from the evidence of the appellant’s possession of it together with the testimonial account of Ms F, but that use of the evidence would involve some subtlety of reasoning to ensure that it was not impermissibly circular.  Be that as it may, the Judge did not leave the rape pornography evidence to the jury to be used to find a particular propensity.  The Judge limited its probative value to the improbability of fabrication use.

9. I would reject the appellant’s contention that the Judge’s direction as to the use of the complaint evidence was that the terms of the complaint were evidence of the facts therein stated. It was a direction in accordance with s 34M(4) of the Evidence Act 1929 (SA) (the Evidence Act) that the fact of the making of the complaint gave a more complete account of the events on the beach.

10. I would therefore dismiss the appellant’s appeal against his conviction.

11. The appellant appeals his sentence on the grounds that it was not proportionate, that there ought to have been a greater degree of concurrency as between the sentences, and that the Judge took into account irrelevant considerations. I would also dismiss the appeal against sentence.

12. I elaborate on my reasons below.

    The evidence

13. On the morning of 9 February 2016, the appellant drove Ms F and Ms R on to a Coorong beach after turning off from the Salt Creek Roadhouse.  After the camp was set up, at about 4.00 pm, Ms R went to sleep in the car.

14. Ms F and the appellant eventually walked into nearby sand dunes on the appellant’s suggestion that they look for kangaroos.  There, the appellant attacked her from behind and pulled her to the ground.  He produced a knife and a length rope which he used to tie Ms F’s hands behind her back.  He used the knife to cut away Ms F’s bikini.  That conduct constituted the offence of aggravated kidnapping.  The appellant indecently kissed Ms F.  That conduct was the subject of the charge of indecent assault.  The appellant then attempted to place Ms F’s bikini bottom into her mouth but Ms F clenched her teeth to stop him doing so.  The appellant was so enraged that he spat on and punched her in the face.  The punching was the subject of the charge of causing harm with intent to cause harm.  After Ms F tried to placate the appellant, he allowed her to stand but then hobbled her ankles together with the rope.   At first, he walked Ms F through the dunes towards the campsite but he then changed direction and threw her to the ground and started punching her again. 

15. Ms F’s terrified screams woke Ms R who went out to investigate.  She saw Ms F lying naked on her back with the appellant standing over her.  Ms R shouted at the appellant which caused him to chase her back to the car.  At the car the appellant caught up with Ms R and then struck her about the head four times with a hammer causing skull deep lacerations.  That conduct was the subject matter of a charge of attempted murder, to which the jury returned the alternative verdict of aggravated attempted causing serious harm with intent to cause serious harm.

16. After a short struggle, Ms R escaped into the nearby sand dunes to look for Ms F.  She found Ms F and removed the ligature from around Ms F’s wrists.  Ms F had already removed the ligature around her ankles. Sensibly and courageously the two women resolved to run in different directions.  Ms F ran into the sand dunes and hid in some bushes.  Ms R ran away but the appellant caught up with her in his car and struck her from behind with the bull bar.  Ms R was knocked to the ground but got up and ran again, only to be chased down and struck again.  This pattern repeated itself three or four times and on one of the occasions the appellant’s car ran over the top of Ms R.  That conduct was the subject of the charge of endangering life. 

17. Exhausted and unable to run further, Ms R jumped onto the bonnet of the car and held on to the antenna before climbing onto the roof.  The appellant stopped driving and got out of the car.  There was an angry exchange in which the appellant demanded that Ms R come down and Ms R pleaded that he return her to the road.  The appellant attempted to strike Ms R’s legs with the hammer to get her off the roof.  That conduct was the subject of the charge of aggravated assault.  The appellant then returned to the car and began to drive through the sand dunes with Ms R hanging onto the car’s roof rack.  He drove wildly and erratically.  The car became bogged and the appellant freed it and then drove off. Later the appellant appeared to calm down to the point that Ms R, anxious about her injuries, agreed to get back in the car. 

18. While Ms R was on the roof of the appellant’s car, Ms F remained hidden in some bushes until she saw a white utility driving along the beach.  There were four men in the car who were referred to in the evidence at trial as ‘the Mohammeds’.  Ms F ran towards their car screaming hysterically.  She jumped into the backseat for refuge and started screaming at the men ‘Go, go, go.  Get out of here, he’s going to kill us all’.  She said ‘He tried to rape me.  He tried to – he tied me up and he’s got my friend and he is still out there with her’.  Two other vehicles pulled up behind the Mohammeds’ utility.  They were referred to in the evidence as the young fishermen from Melbourne.  One of them heard a female voice say the word ‘rape’, it is fair to assume this was Ms F given there were no other women present.

19. It was agreed that the young Melbourne fishermen would drive back to the gate entry point to the beach while the Mohammeds remained with Ms F.  They drove Ms F to the beach campsite looking for Ms R.  She was not there, of course, because she was on the roof of the appellant’s car as it was driving around the sand dunes.  At the campsite, Ms F indicated her bikini bottoms and told the Mohammeds that her attacker had ‘ripped them off me, tried to rape me and bash me’.

20. When the Melbourne fishermen had got back to the gate entry point, they came across some off-duty police officers.  While talking to them they saw the appellant’s car ‘snaking its way’ past them and travelling ‘very very fast’.  One of the men saw Ms R in the passenger side of the vehicle. Ms R said that she screamed for help as the car drove past.

21. The young fishermen from Melbourne got into their cars and drove slowly along the beach trying to observe the appellant’s vehicle.  Whilst the appellant’s car was being followed he stopped and allowed Ms R to get out.  Ms R walked to the cars driven by the fishermen and she was rescued by them.  They saw that she was covered from head to toe in blood and had a tennis ball sized lump on her head that was bleeding.  Her face and head were swollen.  They provided some immediate assistance to Ms R before driving her back to the safety of the Salt Creek Roadhouse. 

22. The appellant was arrested on the beach by police later that evening.

23. The appellant did not answer police questions and did not give evidence in his trial.  In cross-examination of Ms R and Ms F, the appellant’s counsel put that the appellant had not done anything wrong on that day.  The cross-examination implied that Ms F and Ms R had fabricated their accounts.  The appellant’s counsel put to Ms F that she was not assaulted in any way, and to Ms R that the appellant did not attack her or Ms F.  It was put that Ms R had asked the appellant to drive her around the sand dunes to look for Ms F, who had walked off on her own after losing her temper over something.  It was put to Ms R that she had fallen off the roof of the car onto which she had climbed to get a better view.

24. Secondary evidence of the rape pornography on the appellant’s electronic devices was adduced through a police officer, Detective Handley, who had viewed the material.  It was given in that way because agreement could not be reached on the the extent to which images themselves should be edited before being received into evidence. 

25. Detective Handley testified that on the mobile telephone there was a video showing a woman wearing a mouth gag with her arms and legs bound.  A second video showed two women on a bed both of whom were gagged and had their arms bound with rope and tied behind their backs.  The images were last accessed on 7 February 2016, two days before the offending.  The appellant’s laptop computer contained 95 images of a pornographic nature.  Thirty seven of those images showed women with a form of gag in their mouths and 34 with their arms or wrists tied behind their backs.  In the period of three months before the offending, the appellant’s computer had been used to conduct internet searches using terms similar to ‘women being brutally raped’.

    The rape pornography evidence properly admitted

26. Section 34P of the Evidence Act regulates the admission of discreditable conduct evidence.

    34P—Evidence of discreditable conduct

    (1)In the trial of a charge of an offence, evidence tending to suggest that a defendant has engaged in discreditable conduct, whether or not constituting an offence, other than conduct constituting the offence (discreditable conduct evidence)—

    (a)     cannot be used to suggest that the defendant is more likely to have committed the offence because he or she has engaged in discreditable conduct; and

    (b)     is inadmissible for that purpose (impermissible use); and

    (c)     subject to subsection (2), is inadmissible for any other purpose.

    (2)Discreditable conduct evidence may be admitted for a use (the permissible use) other than the impermissible use if, and only if—

    (a)     the judge is satisfied that the probative value of the evidence admitted for a permissible use substantially outweighs any prejudicial effect it may have on the defendant; and

    (b)     in the case of evidence admitted for a permissible use that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue—the evidence has strong probative value having regard to the particular issue or issues arising at trial.

    (3)In the determination of the question in subsection (2)(a), the judge must have regard to whether the permissible use is, and can be kept, sufficiently separate and distinct from the impermissible use so as to remove any appreciable risk of the evidence being used for that purpose.

    (4)Subject to subsection (5), a party seeking to adduce evidence that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue under this section must give reasonable notice in writing to each other party in the proceedings in accordance with the rules of court.

    (5)The court may, if it thinks fit, dispense with the requirement in subsection (4).

1. In R v M, BJ, Vanstone J contrasted the ‘general disposition’ use of discreditable conduct proscribed by s 34P(1) of the Evidence Act with examples of the permissible uses for which it might be admitted: [7]

   [26]The exclusionary rule is that ‘evidence that reveals that the accused is a person of bad character is not admissible if it proves no more than that he or she has a general disposition or propensity to commit crime or crime of a particular kind’: Pfennig v The Queen, citing R v Makin. However, similar fact evidence or propensity evidence may be relevant and admissible because of the light it throws on any of a number of issues in a case. For example, it might assist in proving identity or intention, or in disproving accident or mistake or innocent association: Thompson v The Queen.

   [27]The probative value of such evidence might arise from the fact that it bears striking similarities to the allegations made in relation to another offence for which the accused is on trial. But equally its strength might lie in the “‘unusual features’, ‘underlying unity’, ‘system’ or ‘pattern’ [which it reveals] such that it raises, as a matter of common sense and experience, the objective improbability of some event having occurred other than as alleged by the prosecution”: Hoch v The Queen. The process of reasoning involved is that of “admeasuring the probability or improbability of the fact or event in issue, … given the fact or facts sought to be adduced in evidence”: Martin v Osborne. To put it slightly differently, there needs to be such a nexus between the various sets of allegations that they must either all be true or have arisen from “a cause common to the witnesses or from pure coincidence”: Director of Public Prosecutions (UK) v Boardman.

   (citations omitted)

   [7] (2011) 110 SASR 1 at 12, [26]-[27].

2. In R v C, CA,[8] I explained the two primary permissible evidential uses of discreditable conduct evidence admitted pursuant to s 34P of the Evidence Act as follows:

   [77]The permissible forms of reasoning allowed by s 34P of the Evidence Act are, speaking broadly, twofold.  First, if the discreditable conduct evidence is strongly probative of the existence of a behavioural proclivity to engage in conduct of the kind charged whenever an opportunity arises, it is permissible to use that evidence as an item of circumstantial evidence indicating guilt.  The second form of reasoning is improbability reasoning which has a probative force independent of any proclivity.  The improbability can arise from a wide range of circumstances and in many different ways.  Common examples include “cauliflower ear” similarity in modus operandi, coincidental presence or involvement in the place or circumstances of the crime for which an innocent explanation is improbable, and the improbability of complainants independently fabricating similar accounts.

   (citations omitted)

   [8] [2013] SASCFC 137 at [77].

3. In R v MJJ; R v CJN[9] I elaborated on those uses:

   [9] (2013) 117 SASR 81 at 87-89, [13]-[16], [18], [19].

   [13]Section 34O of the Evidence Act provides that the provisions of Pt 3, Div 3 of the Evidence Act prevail over the common law to the extent of any inconsistency. That provision implicitly accepts the continued operation of common law principles which are not inconsistent with Pt 3, Div 3 of the Evidence Act. The common law authorities which have considered the probative force of discreditable conduct evidence, and the weighing of its probative force against its prejudicial effect, continue to inform the application of s 34P of the Evidence Act. I respectfully agree with the observations of Vanstone J in this respect. Part 3 has modified the common law in two important aspects. First, the rule derived from common law authorities in Hoch v The Queen, which precluded evidence of similar offending on different complainants when there was a possibility of concoction, has been abrogated by s 34S(b) of the Evidence Act. Furthermore, s 34S(1) of the Evidence Act has abrogated the rule stated in Pfennig v The Queen which precluded discreditable conduct evidence when there is a reasonable explanation of that evidence consistent with innocence.

   …

   [15]It is plain enough that in applying s 34P of the Evidence Act the probative value of the evidence of discreditable conduct can only be assessed in the context of all of the evidence on which the prosecution relies and to which it has a relevant connection. 

   …

   As Vanstone J has pointed out in [234]-[237] of her reasons, the probative weight and admissibility of an item of evidence is determined by the application of legal principle, and the relevance principle in particular, to the matrix of other evidence and the legal issues arising in the trial.

   [16]A decision to admit the evidence of discreditable conduct based on one or more identifiable and permissible purposes does not preclude the judge from leaving the evidence of discreditable conduct to the jury for other additional purposes. The identification of an additional permissible purpose will generally add to the probative weight of the evidence relative to its prejudicial effect. However, before leaving an additional use which relies on a particular propensity, or which is closely linked to a prejudicial effect, the judge should ensure that the “strongly probative value” test in s 34P(2)(b) of the Evidence Act has been satisfied and that the “sufficiently separate” consideration in s 34P(3) of the Evidence Act, has been taken into account. Ultimately, on an appeal, it will be the legal conclusion reached by the Court of Appeal on the probative force of the uses left to the jury which will be determinative and if the evidence is admissible any error made by the trial judge in reaching the same conclusion is of no consequence.

   …

   [18]The impermissible use identified in s 34P(1) of the Evidence Act is the drawing of an inference of guilt from the fact that the accused has engaged in other conduct which has no relevant connection to the offence other than to share the epithet discreditable. Evidence of discreditable conduct of that kind may, admittedly with some imprecision, be described as evidence of a mere, or general, propensity. Section 34P(2)(b) expressly provides for the admission of discreditable conduct evidence which shows a particular propensity or disposition of the defendant. The particular propensity or disposition must be strongly probative of the offence charged, and outweigh its prejudicial effect. Discreditable conduct which has a permissible use, other than by way of demonstrating a particular propensity, need only have a probative value, whether weak, moderate or strong, which substantially outweighs its prejudicial effect.

   [19]At the core of the assessment of the probative value of discreditable conduct evidence are two analytical steps. The first is to identify the particular fact which is in issue. The second is to consider how, if at all, the discreditable conduct evidence circumstantially increases, as a matter of human experience, the probability of the existence of that fact. Resorting to generalities such as “context”, “background” and “underlying unity” will seldom illuminate the analysis.

   (citations omitted)

4. The admissibility of discreditable conduct evidence is a question of law. On an appeal against a conviction on the ground that evidence was wrongfully admitted, the critical question is whether or not the evidence was correctly admitted in law, irrespective of the reasons given by the trial Judge for admitting it. In the course of the trial the Judge stated her conclusion that the evidence was admissible pursuant to s 34P of the Evidence Act without elaboration. In reasons which the Judge subsequently published, her Honour said:

   [8]Consequently, in the final form in which the Director proposed that the evidence be led, I was satisfied that its probative value substantially outweighed any prejudicial effect it may have had on the accused. Both Ms [F] and Ms [R] insofar as Ms [R] was witness to some of the events involving Ms [F], were witnesses who made similar allegations against the accused which were directly disputed. I considered that the evidence proposed to be led was relevant to the jury’s assessment of the credibility and reliability of Ms [F] and in particular whether she invented the allegations about what had happened to her in the sand hills. Her account of the way in which the accused assaulted her, tied her up, placed a gag in her mouth and commenced to sexually assault her bore a marked similarity to the material found on the accused’s computer and phone such that it was improbable that Ms [F] had concocted her account.

   [9]To my mind the evidence sought to be led would also have satisfied the test in s 34P(2)(b) of the Act, in that it revealed a particular propensity or interest on the part of the accused in having sexual relations with females accompanied by specific acts of violence including bondage, placing gags in their mouths and tying up their hands and feet. I considered there was a marked similarity between the material viewed by the accused on the phone and the computer and the allegations made by Ms [F].

   [10]However, the Director did not seek to rely on the evidence of discreditable conduct to prove any propensity and accordingly I directed the jury in terms of the requirements of s 34P(2)(a) of the Act.

   [11]In reaching my conclusion I considered that the permissible use of the evidence under s 34P(2)(a) of the Act could be kept sufficiently separate and distinct from the impermissible use and I directed the jury accordingly.

5. The prosecution by its notice pursuant to s 34P(4) of the Evidence Act sought to lead the rape pornography evidence on the ground that it disclosed an interest in violent rapes, other sexual acts, and bondage making it admissible pursuant to s 34P(2)(b) of the Evidence Act for propensity purposes. However ultimately the prosecution narrowed its proposed use to the coincidence between the existence of the material and the testimonial account of Ms F about being tied, gagged and indecently assaulted. Mr Pearce QC, who prosecuted at trial and appeared on the appeal, proposed to the Judge the following use of the rape pornography evidence in argument on its admissibility:

   MR PEARCE: The basis on which I press tender today is I’m not relying on the material to demonstrate a particular propensity or disposition, nor am I relying on it as a general propensity or disposition. I am, however, relying upon it as a piece of circumstantial evidence pursuant to s.34P(2)(a) but I maintain my earlier submission that the evidence would otherwise meet the test set out in 34(2)(b) [sic] but I’m not asking your Honour to leave the evidence to the jury on that basis.

   ...

   So the process of reasoning that the jury will have to go through will involve a consideration of the probability or improbability of the facts or events in issue. Now, those facts or events that are in issue by virtue of the cross-examination are, as they relate to Ms [F], the question being whether she was attacked as alleged, whether she was tied up, whether she was sexually assaulted and had a mouth gag put around her neck. That is the evidence and a fact in issue going directly to proof of the various charges.

   On the prosecution case the fact that the accused has accessed computer images showing women whose hands and feet have been bound and who are engaged in what I’ll loosely call sexual activities whilst bound and gagged is probative when the jury are considering whether or not the suggestion of invention is probable or improbable.

   …

   So when considering whether she’s just sat there and dreamt up a story alleging bondage and gagging, the jury should have access to the information that shows the accused looks at these sorts of images on his computer and was doing so at a time relevant to these offences, that he’s got a demonstrated interest in such conduct, and the fact that he has a demonstrated interest in that conduct is a factor for the jury to consider when assessing whether or not the allegations of being bound and gagged were an invention or a product of Ms F’s imagination or whether they are, in fact, accurate allegations.

6. In his final address, Mr Pearce QC submitted:

   … The fact if you find it to be the case, but the fact that the accused had a demonstrated interest in such conduct is a matter for you to consider when assessing Ms [F]’s evidence. When assessing her evidence about whether she was bound by the hands and feet as she alleges and whether she was gagged or an attempt to gag her as she alleges. You can use that evidence of what’s on the computer, along with all of the other circumstances in this case, when assessing whether you believe her account. In simple terms you ask this question: is it a reasonable possibility that Ms [F] has just invented this allegation of being bound, gagged and sexually assaulted? When considering that as a reasonable possibility bear in mind what are the chances of a man that she’s apparently just falsely alleged these things against, what are the chances that he would just so happen to have images of that very type on the phone that he’s carrying with him that day; that he would have images of that very type on his computer that’s sitting under his bed at home. What you’re doing with this evidence is measuring the improbability of Ms [F], just simply inventing this wild and crazy allegation and just fluking, just fluking it that he’s got the same sort of stuff on his phone and his computer. That’s the relevance of the evidence and that’s the only relevance of the evidence. 

7. The above passages correctly state the probative force and permissible use of the rape pornography evidence.  It is most improbable that Ms F, ignorant of the fact that the appellant’s devices contained images of the rape of women who were bound and gagged, would fabricate an account of him attempting to rape her in the same way.  The prejudicial effect of the rape pornography evidence is that it shows him to have an interest in viewing material which almost everyone would condemn as depraved and would cause many to assume that he harboured a desire to abuse women in the same way.  However the probative value of the rape pornography evidence is both very strong and substantially outweighs its prejudicial effect.

8. The rape pornography evidence as a foundation for improbability of fabrication use does not rely on a finding that the appellant did have a propensity or proclivity to act out the images he enjoyed viewing.  A person may derive a prurient interest in viewing material of a particular kind without harbouring any desire to replicate it.  Of course, in this case, an acceptance of Ms F’s testimony exposes the appellant to have precisely that propensity.  However the improbability of fabrication use put against the appellant in this case relies on only these steps:

   (a)there is a very wide range of detail which a person fabricating an account of rape might include in describing how the attack was perpetrated;

   (b)using a rope to bind the victim’s hands and her clothing in an attempt to gag her, is a particularly peculiar account to fabricate;

   (c)very few people have a prurient interest in viewing rape pornography of the kind found on the appellant’s devices;

   (d)the possibility that Ms F fabricated a peculiar account of rape against one of very few people who had an interest in viewing rape pornography strikingly similar to her account is extremely low.

   The reasoning does rely on the appellant having a prurient interest in the material.  It would not have the same force if the appellant was an e-crime forensic investigator who classified material of that kind.  However none of the steps relies on a finding, or premise, that the appellant had a tendency, or even a strong desire, to carry out rapes of that peculiar kind.  Improbability of fabrication reasoning is fundamentally different to general disposition or ‘bad person’ reasoning.[10] The permissible and impermissible uses are sufficiently separate and distinct to remove any appreciable risk of an impermissible use for the purposes of s 34P(3) of the Evidence Act. I acknowledge that there is some similarity between the improbability of fabrication reasoning in this case and propensity reasoning because a propensity may be inferred from an interest and because, on Ms F’s account, the appellant had both an interest and a propensity. However propensity reasoning was not left to the jury.

   [10]   R v C, CA [2013] SASCFC 137 at [79]-[84] per Kourakis CJ.

9. The rape pornography evidence was properly admitted.

   Directions on the rape pornography evidence

10. Section 34R of the Evidence Act provides:

    (1)If evidence is admitted under section 34P, the judge must (whether or not sitting with a jury) identify and explain the purpose for which the evidence may, and may not, be used.

    (2)If evidence is admitted under section 34P and that evidence is essential to the process of reasoning leading to a finding of guilt, the evidence cannot be used unless on the whole of the evidence, the facts in proof of which the evidence was admitted are established beyond reasonable doubt, and the judge must (whether or not sitting with a jury) give a direction accordingly.

11. The Judge directed the jury on the proper use of the rape pornography evidence as follows:

    The evidence of what the police saw on the computer is led solely to assist you as one more item of circumstantial evidence when you are determining whether you are prepared to accept the account given by Ms [F] beyond reasonable doubt.

    In other words, you can use that evidence, along with all the other evidence that you have heard, in assessing whether or not you are satisfied beyond reasonable doubt that Ms [F] did not make up those allegations.

    The way you are entitled to use it is this: in assessing Ms [F]’s honesty and reliability in her account of what occurred you may, if you so choose, take into consideration the coincidence - if you find it to be so - of material on the accused’s computer which arguably bears some parallel with the allegations made by Ms [F] about the accused’s conduct.

    To put that differently, if you see the computer material as demonstrating an interest on the part of the accused in sexual activity involving bondage, that interest might help you in evaluating the suggestions put to Ms [F] by Mr Boucaut that she made up stories about the accused’s conduct in that regard.

    What you cannot use that evidence for is in assessing whether you are satisfied beyond reasonable doubt of the four remaining counts on the information concerning Ms [R].  The evidence of the accused’s computer searches is only relevant to the accounts involving Ms [F].  Further, what you may not use that evidence for is to reason in this way: ‘Well, that is a bit unsavoury’ or ‘He is not a very nice person’ or ‘He is just the type of person who would go out and rape someone’.  That is the very purpose for which you cannot use that evidence. 

    In Australia accused people are not to be convicted on the basis of their past behaviour, on the basis that they have done or said bad things in the past or that they have unsavoury and, perhaps to some minds, distasteful interests.  Even if they do have distasteful interests, it does not mean that they act them out.  So you must not reason in a general way that just because the accused may like to look at images of people in bondage in sexual situations that he is the sort of person who is likely to commit crimes.

    Just to recap on that: you cannot use the evidence of the accused’s searches on his computer and the images on his phone to reason that, because he is a person interested in particular sexual behaviour, therefore he is a bad person and is more likely to commit offences. The evidence is only admissible on the first three counts which relate to Ms [F] and you may not use it in any other way or for any other purpose than that which I have just directed you about.

1. The Judge correctly directed the jury on the improbability of fabrication use of the rape pornography evidence in the third and fourth paragraphs.  Even though the Judge spoke of ‘assessing Ms F’s honesty and reliability’ the substance of the direction which followed was not to use the evidence collaterally on credit.  A witness’s credit may be impeached, or in rare cases rehabilitated, by collateral evidence of his or her conduct which does not bear on a fact in issue.  However the rape pornography evidence concerned the appellant’s conduct and he did not give evidence.  It could not possibly have been used collaterally to boost Ms F’s credit.  The substance of the direction was that the jury might find the facts deposed to by Ms F more probable because of the coincidence in the similarity of those facts with the rape pornography material found on the appellant’s electronic devices of which she was ignorant.

2. The last three paragraphs of the summing up reproduced above correctly warned the jury against ‘bad person’ or general disposition reasoning.

3. The jury was not directed on a propensity use of the rape pornography evidence.  The Judge’s reference to the rape pornography evidence demonstrating an interest in the material correctly focused the jury’s attention on the need for the evidence to demonstrate a prurient interest for it to have probative force for improbability of fabrication purposes.  The rape pornography evidence could properly have been left to the jury in the circumstances of this case as evidence of propensity but it would have been necessary to direct the jury to consider whether it supported an inference, not only of a prurient interest in viewing, but also, at least, a desire to replicate it.  If so left it would have been necessary to carefully direct the jury not to so find by assuming to be true the ultimate facts in issue.  However the safer course was to limit its use to demonstrate the improbability of fabrication.  The Judge was correct to so limit it, and the warning against general disposition reasoning encompassed, in the circumstances of this case, specific propensity reasoning.

   Complaint evidence

4. Sections 34M(3) and (4) of the Evidence Act relevantly provide:

   …

   (3)Despite any other rule of law or practice, evidence related to the making of an initial complaint of an alleged sexual offence is admissible in a trial of a charge of the sexual offence.

   …

   (4)If evidence referred to in subsection (3) is admitted in a trial, the judge must direct the jury that—

   (a)     it is admitted—

   (i)to inform the jury as to how the allegation first came to light; and

   (ii)as evidence of the degree of consistency of conduct of the alleged victim; and

   (b)     it is not admitted as evidence of the truth of what was alleged; and

   (c)     there may be varied reasons why the alleged victim of a sexual offence has made a complaint of the offence at a particular time or to a particular person,

   but that, otherwise, it is a matter for the jury to determine the significance (if any) of the evidence in the circumstances of the particular case.

5. On the use of the complaint evidence the Judge directed the jury:

   While on this topic of the counts on the information I want to direct you about some evidence which is only relevant to the first three counts on the information and I need to give you a direction of law, which you must obey, about the circumstances in which Ms [F] made her initial complaint of attempted rape and the further information she provided by way of elaboration of that complaint down at the camp site.

   I will just remind you of the terms of the complaint.  As you understand from the evidence which unfolded things were quite chaotic at the beach that afternoon of 9 February and some of the witnesses to whom Ms [F] spoke gave slightly different accounts of what they had seen and heard.  However, it is her complaint of the sexual nature that I am focusing on now.

   You will recall Mr Abdul Mohammed, the son of Ali Mohammed, said that as soon as Ms [F] leapt into the back of her vehicle she started screaming ‘Go, go, go, get out of here, he’s going to kill us all, he tried to rape me.  He tried to - he tied me up and he’s got my friend and he’s still out there with her’.  Both the Mohammeds described Ms [F] as naked and pretty much hysterical and afraid.  A few minutes later, after they had driven back to the camp site to look for Ms [R], she pointed out what Mr Mohammed described as her knickers next to the tent and told him ‘He ripped them off me, he tried to rape me and bash me’.  He said that at that time she was still hysterical, a bit afraid, they had a quick look around and left.

   The fishermen, and I am now referring to that group of young men from Melbourne who you heard from: Mr Harrison, Mr Saule, Mr Campbell and Mr Dowson, also witnessed Ms [F] running from the sandhills screaming and naked.  A couple of them could hear her screaming but couldn’t make out any exact words.  However, Mr Harrison said he could remember small details about being tied up but he could not exactly recall who it was, because it was all very quick. Mr Campbell said he just saw Ms [F] was naked and screaming but couldn’t hear any words.  Jack Dowson was the young man who said he heard the word ‘rape’ uttered with a female voice.  You may think there were no females other than Ms [F] at the time so you may think he heard her say that.

   So I need to give you a direction about that evidence and there are a number of reasons why that evidence was given.

   First, you are entitled to hear how it was that the allegation of Ms [F] that the accused tried to sexually assault her gives you a more complete picture of the account about what happened out there.

   Second, you may use her evidence of complaint about what happened before she ran out of the sandhills as demonstrating consistency of conduct on her part.  In other words, do the circumstances in which Ms [F] made that complaint appear to be consistent with the occurrence of the events that she described happened back in the sandhills.

   Third, the evidence of Ms [F]’s complaint and her elaboration of it to Mr Mohammed down at the camp site has not been led to demonstrate the truth of what she said.  You can only have regard to the evidence of what Ms [F] said in court about that as evidence of the truth of what she reported.  All that a recent complaint is admitted for in a case involving allegations of a sexual nature is to demonstrate consistency on the part of the person making the complaint with the occurrence of the events about which they complain.

6. The paragraph commencing with the word ‘First’ appears in those directions, to suffer from an ellipsis in either the giving of the direction or its recording.  It reads more naturally with the following inserted words:

   First, you are entitled to hear how it was that the allegation of Ms [F] that the accused tried to sexually assault her [was made because it] gives you a more complete picture of the account about what happened out there. 

7. Whether or not the jury would have understood that paragraph in precisely those terms ultimately does not matter much.  Importantly, on either the written record of the direction or its more readily understandable form the jury were not directed that it was the narrative or contents of Ms F’s complaint that would give them a more complete picture of the account.  The first paragraph of the directions explained that the following directions would be about ‘the circumstances in which Ms F made her initial complaint of attempted rape’ and its later elaboration.  The penultimate paragraph would therefore naturally have been understood to draw attention to how the allegation of a sexual assault came to be made by Ms F and not to the truth of its narrative.

8. Moreover trial counsel did not apprehend any risk that the jury might misapprehend the Judge’s direction.  No complaint was made by the appellant’s counsel about the Judge’s directions on the complaint evidence.

9. I am satisfied that there was no error of law in the application of s 34 of the Evidence Act and no miscarriage of justice arising from the Judge’s directions.

   Sentence

10. On the offences committed against Ms R the Judge imposed the following sentences of imprisonment to be served concurrently:

    ·aggravated kidnapping with intent to rape (maximum sentence 25 years) – nine years;

    ·indecent assault (maximum sentence eight years) – four years;

    ·causing harm with intent to cause harm (maximum sentence ten years) – three years.

11. The following sentences imposed on the offences committed against Ms R were ordered to be served concurrently as between themselves but cumulatively on the sentences imposed for the offences against Ms F:

    ·aggravated attempt to cause serious harm with intent to cause serious harm (maximum sentence 16 years and eight months) – eight years;

    ·endangering life (maximum sentence 15 years) – 12 years;

    ·aggravated assault (maximum sentence four years) – two years.

12. At the same time the Judge sentenced the appellant on two other offences. The first was an offence of indecent assault committed against Ms A on 17 September 2014. The appellant met Ms A through Gumtree and arranged to give her a lift to Melbourne. Ms A stayed at the appellant’s home for several days before the planned departure. On the final day of her stay there the appellant indecently assaulted Ms A over the top of her clothing. He led Ms A to the bedroom and pushed her onto the bed. When Ms A screamed at him he desisted. Ms A was able to leave the appellant’s home, and reported the matter to police.

13. For the offending against Ms A the Judge imposed a sentence of one year and four months cumulative upon the sentences imposed with respect to the offending on 9 February 2016.

14. On 10 December 2014, the appellant allegedly assaulted Ms JR, a young female backpacker who was travelling around Australia on a working holiday.  He met Ms JR through the Gumtree website.  That incident happened whilst the appellant was on bail regarding allegations of sexual assault against, another young female backpacker, Ms V.  The appellant had met Ms V on the internet.  A term of his bail agreement was that he not use social or electronic media to arrange personal contact with any person.  In December 2014 the appellant met Ms JR through Gumtree, and in so doing, contravened his bail agreement. For that offending, on 8 July 2015, the appellant was placed on a good behaviour bond which recorded a conviction but did not impose any further penalty.  Seven months later the appellant committed the offences against Ms F and Ms R. The Judge revoked the 8 July 2015 bond as a result of the offending against Ms F and Ms R.

15. The appellant was born in Germany and immigrated to Australia as a child with his family in 1959.

16. The appellant’s health was generally good other than a lower back injury suffered at work which was treated by laminectomy.  He completed secondary school in the early 1970s and went on to complete an apprenticeship as a chef.  He worked as a roofer in the 1980s.

17. The appellant’s first marriage, from which he has a son and a daughter, ended after 12 years.  The appellant remarried in 1990 but separated after 22 years.  He has three sons from his second marriage.

18. Commenting on a common theme of the offences for which the appellant fell to be sentenced, the Judge observed:

    Each of the offences for which you are to be sentenced today, committed against each of the four young women ... had a common theme, that is violent, predatory and sexualised behaviour by you after which on more than one occasion you seem to have calmed down, apologised and said you did not know why it happened.

19. After describing each of the offences against Ms F and Ms R, the Judge observed:

    It is difficult to say which offence is worse, however your conduct as a whole on that day while committing these offences against Ms F and Ms R places your offending in a very serious category indeed.

    Nonetheless it is clear that the Judge regarded the offence of endangering the life of Ms R as particularly grave:

    The offence committed against Ms R, in chasing her down like a frightened rabbit and running over and at her again and again was utterly depraved Mr Heinze.  That is not the conduct of a civilised human being, but is the behaviour of an enraged and somewhat primitive man lacking any moral compass whatsoever.

20. The Judge described the overall effects of the appellant’s offending in this way:

    The victim impact statements by the three young women, Ms A, Ms F and Ms R, speak eloquently of the profoundly damaging effect your conduct has had in each of their lives.

    Apart from the immediate physical injuries which required hospitalisation of both Ms F and Ms R, it is obvious from the victim impact statements that each of these three women have also suffered very serious post-traumatic shock and stress which has infiltrated into their lives, their relationships and their work.  Those are the immediate consequences of your offending.

    However your conduct has also had an effect on the wider community.  Men who commit crimes of the type you did on 9 February 2016, and I say men, because if I ever hear of a woman carrying on like that, I will start to be gender inclusive about my terms - men who commit the kinds of crimes that you committed on 9 February go a long way to destroying the community’s sense of security and safety.  You only have to have listened to the reactions of the Mohammed family and the five young fishermen from Melbourne who rescued the girls that day to understand the terror and fear that your conduct instilled in them as well.

    In committing these crimes you have undermined yet again the reputation of this country as a safe, attractive and friendly destination for young backpackers from all over the world, and you have undermined for the whole community the ability to freely enjoy the beautiful wilderness areas in our country.

21. The Judge correctly recognised that in sentencing for these offences the need to protect the safety of the community assumed great importance.  The Judge’s reference to the undermining of Australia’s reputation as a friendly destination for young backpackers, and the whole community’s ability to freely and safely enjoy the beautiful wilderness, are but aspects of that consideration.  The South Australian community includes visitors from the other States and Territories of Australia and overseas.  Indeed the Judge used the opportunity of her remarks to issue a warning to young people using the ‘internet highway’ to travel.  The Judge’s remarks cannot sensibly be understood to mean that her Honour treated the possible economic damage to Australia’s tourist industry as an aggravating factor, or as operating, in some other way, to increase the sentences.

22. Even if the remarks show that the Judge had regard to an irrelevant consideration in a way which vitiates the exercise of her Honour’s sentencing discretion, I would have imposed an equivalent head sentence and the same non-parole period for the reasons which follow.

23. The individual sentences imposed by the Judge were long but they were not excessive.  The Judge correctly described the appellant’s offending as primitive.  He acted brutally and was apparently unrestrained by any feeling of empathy for his victims or regard for the most basic norms of human behaviour.  Condign punishment reflecting the condemnation of the community for the horrendous harm caused to his victims and the horror felt by those who witnessed its aftermath was necessary.  The appellant’s offending also manifested a dangerous depravity which called for a sentence which protected the community both by a long period of detention and by providing a strong measure of personal deterrence thereafter. 

24. Imprisonment may be imposed in order to protect the community within the limits of what is proportionate to the offending.  In Veen v The Queen [No 2] the High Court explained: [11]

    The principle of proportionality is now firmly established in this country. It was the unanimous view of the Court in Veen [No.1] that a sentence should not be increased beyond what is proportionate to the crime in order merely to extend the period of protection of society from the risk of recidivism on the part of the offender.

    …

    It is one thing to say that the principle of proportionality precludes the imposition of a sentence extended beyond what is appropriate to the crime merely to protect society; it is another thing to say that the protection of society is not a material factor in fixing an appropriate sentence. The distinction in principle is clear between an extension merely by way of preventive detention, which is impermissible, and an exercise of the sentencing discretion having regard to the protection of society among other factors, which is permissible.

    …

    The plea has been heard by the courts of this country, by adopting the principle of proportionality and by having regard to the protection of society as a factor in determining a proportionate sentence. It must be acknowledged, however, that the practical observance of a distinction between extending a sentence merely to protect society and properly looking to society’s protection in determining the sentence calls for a judgment of experience and discernment.

    [11] (1988) 164 CLR 465 at 472-475 per Mason CJ, Brennan, Dawson and Toohey JJ.

25. The sentences imposed on the appellant are at the higher end of what is proportionate but are a sound ‘judgment of experience and discernment’.  The appellant complains that the Judge erred in failing to make the sentences for the offences committed against each of Ms F and Ms R at least partially concurrent.  I accept that the sentences of imprisonment imposed for the offences committed against Ms R might, in the exercise of the Judge’s discretion, have been made partially concurrent with the sentences imposed for the offences against Ms F given their close temporal proximity.  However it is difficult to describe offending as grave as that committed against two individual women as but part of a single course of conduct.  Moreover the offending against Ms R was committed in order to prevent her from drawing attention to the offending against Ms F.  Be that as it may, that consideration is counter-balanced by the consideration that the sentences imposed for the offences against each of Ms F and Ms R might properly have been made only partially, and not totally, concurrent as between themselves.  In particular there was good reason not to make the offence of endangering life by attempting to run Ms R over wholly concurrent with the offence of aggravated attempt to cause serious harm with intent to cause serious harm by hitting her over the head with the hammer. 

26. Ultimately it is the totality of the sentence which is important. On the question of totality the Judge said:

    Before imposing sentence I make it clear that I have given consideration to the principle of totality. However, I regard the gravity of your offending overall as so serious, that the need in your case to give proper effect to the need to protect the safety of the community is a factor which does loom large in sentencing, and to that extent the application of the totality principle is, in the particular circumstances of your case, necessarily attenuated.

27. The Judge was right to observe that the protection of the community necessarily affects the application of the principle of totality. The principle of totality operates to reduce a series of sentences, or an overall sentence pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA), imposed for multiple offences, from what might otherwise have been imposed to ensure that the combined terms do not amount to crushing punishment and to allow sufficient scope for rehabilitation. Whether or not it is strictly accurate to describe that effect as an attenuation is a matter of semantics. The point of substance is that the need for community protection and the reduction of sentences for totality necessarily pull in different directions. It is in that way that the Judge’s observation should be understood. The requirements of community protection and personal deterrence left no room to mitigate the burden of the sentences imposed and there was no reason to apprehend that the appellant would respond positively to a more rehabilitative sentence.

1. Accordingly, in my view, the permissible use was one that engaged s 34P(2)(b). I do not think this conclusion has any consequence for the admission of the rape pornography evidence. I agree with the trial Judge that the requirements of s 34P(2)(a) were satisfied. In my view, the evidence also had strong probative value bearing in mind the attack upon the credit of Ms F. I consider that it was rightly admitted.

2. I agree with the Chief Justice that the use of the rape pornography evidence went to the commission of the offence itself. I also agree with the Chief Justice for the reasons he gives that the directions given by the trial Judge in compliance with s 34R were adequate. My conclusion that the rape pornography evidence was admissible under s 34P(2)(b) called for no different direction.

3. I agree with the Chief Justice that the appeal against sentence should be dismissed. In my view the Judge’s reference to the principle of totality should be understood in the context of that principle having two aspects.[29] Once a sentencing Judge stands back and is satisfied that the sentence or sentences imposed are proportionate to the offending and the circumstances of the offender overall, as the Judge here was,[30] the room left for the operation of the totality principle lies within the realm of mercy.[31] In the circumstances of this case the Judge was right to state the application of the totality principle in order that, in effect, the appellant be extended a measure of mercy to avoid a crushing sentence, was “necessarily attenuated”.

   [29]   R v E, AD (2005) 93 SASR 20 at [37] (Doyle CJ).

   [30]   Hence after referring to having considered the totality principle the Judge said in sentencing the appellant on 17 May 2017 that she regarded “the gravity of your offending overall as so serious, that the need in your case to give proper effect to the need to protect the safety of the community is a factor which looms large in sentencing…”.

   [31]   R v Smoker (2016) 126 SASR 201.