R v HELDON

[2019] SASCFC 62

Supreme Court of South Australia

(Court of Criminal Appeal)

R v HELDON

[2019] SASCFC 62

Judgment of The Court of Criminal Appeal

(The Honourable Justice Kelly, The Honourable Justice Parker and The Honourable Auxiliary Justice David)

6 June 2019

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

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT

Appeal against sentence.

The appellant was convicted after trial by jury of two counts of rape against one complainant.  The sentencing Judge imposed a head sentence of 10 years and a non-parole period of seven years, both of which were reduced by one month to allow for 11 days spent in custody and approximately 18 months spent on home detention bail.

The issues on appeal are whether the head sentence and non-parole period are manifestly excessive and whether the allowance of only one month's credit for the period spent in custody and on home detention bail caused the sentencing discretion to miscarry.

Held per Kelly J (Parker J and David AJ agreeing) allowing the appeal, setting aside the sentence imposed, and resentencing the appellant:

1.  A starting point of 10 years was not outside the range available to the sentencing Judge.

2.  The failure to allow sufficient credit in respect of the time on home detention bail has led the exercise of the sentencing discretion to miscarry.

3.  The appellant is resentenced to a term of imprisonment of 10 years with a non-parole period of seven years.  A period of six months is deducted from the head sentence and non-parole period to account for 11 days spent in custody and approximately 18 months spent on home detention bail, resulting in a head sentence of nine years and six months and a non-parole period of six years and six months.  Both the head sentence and the non-parole period are backdated to 12 June 2018.

R v Taylor [2016] SASCFC 54, applied.
R v Major (1998) 70 SASR 488; R v Knight [2016] SASCFC 40, discussed.

R v HELDON
[2019] SASCFC 62

Court of Criminal Appeal:       Kelly and Parker JJ, David AJ

KELLY J:

Introduction

1. After a trial by jury the appellant was convicted by unanimous verdicts of two counts of rape.  On 20 June 2018, the sentencing Judge imposed a head sentence of 10 years with a non‑parole period of seven years.  Both the head sentence and the non‑parole period were reduced by a period of one month which was expressed to be credit for the amount of time the appellant had spent in custody and on home detention bail prior to sentencing.

2. The appellant now appeals that sentence.  On 29 January 2019, a single Judge of this Court granted an extension of time within which to appeal and, by consent, granted permission to appeal in respect of two grounds of appeal, namely that the head sentence and the non‑parole period are manifestly excessive and that the sentencing discretion miscarried in that the sentencing Judge allowed credit of only one month for the period spent in custody and on home detention bail.

   Circumstances of the offending

3. At about midnight on 7 December 2013 the victim was talking on the phone to her partner whilst she walked across the Victoria Park Racecourse to her partner’s parents’ home in Rose Park.  The appellant, a stranger to the victim, approached her from behind as she was walking.  When the victim realised she was being followed, she started to run; the appellant chased her and brought her to the ground.  She then told the appellant that she was on the phone to the police, and then her boyfriend, in an unsuccessful attempt to scare the appellant off.

4. The victim defended herself by fighting with the appellant, including trying to gouge one of the appellant’s eyes with her thumb, by punching him to the face and by grabbing and pulling on the appellant’s dreadlocks.  The appellant was trying to get the victim to lie face down which she did her best to resist.  She then offered to perform fellatio on the appellant as she saw that as an opportunity to escape as he would have to let go of her to undo his pants.  At one point during the assault upon her the appellant placed his hands around her throat.

5. The victim managed to escape from the appellant, however he chased her again and once again brought her to the ground.  It was after the victim was brought to the ground a second time that the appellant committed the two acts of rape, by digitally penetrating her vagina twice.  During this episode, the victim was holding the appellant’s dreadlock trying to prevent him from turning her over.  The offending only came to an end because the appellant shifted his weight and the victim was able to force him off her with her legs, get to her feet and run to Fullarton Road. 

6. Clumps of hair and a long dreadlock were later located at the scene by police.  Some three years later, a DNA profile obtained from that dreadlock, and from swabs taken from the hands and fingernails of the victim, was matched to the appellant after he committed an unrelated breaking offence in New South Wales.  On 4 December 2016, he was arrested in New South Wales where he was then living and was extradited to South Australia.

7. He remained in custody for 11 days before he was released on home detention bail on 14 December 2016.  The home detention bail agreement included certain conditions requiring that the appellant lodge a cash surety of $10,000, wear a tracking device, abstain from drugs and alcohol, and that he reside at a specified address and not leave it except for work or medical treatment.  The appellant remained on home detention bail until his bail was revoked on 12 June 2018 following his conviction.

   Issues on appeal

8. The appellant complains on appeal that the sentence imposed by the learned sentencing Judge was manifestly excessive.

9. The appellant’s counsel pointed to the following circumstances surrounding the offending, the combined effect of which, he submitted, should have led to a head sentence within a range of four and a half to six years.  Those circumstances included the fact that the penetration was not entire and was fleeting, was digital and not penile, there was no ejaculation and the length of the episode in its entirety was relatively brief.  No weapon was used and the offending did not occur in a home setting in which other offences of home invasion and burglary occurred.  The victim was not a child and apart from pulling the victim to the ground, only relatively minor violence was inflicted upon the victim.  In addition, although there were two separate rape charges, the appellant argued that they could rightly be seen as part of the same transaction.  Both instances of rape occurred during the second period of time the victim was lying on the ground. 

10. In a nutshell, the complaint made about the credit given for the time spent in custody, and on home detention bail, is that the Judge did not reveal the amount of credit given for each of those components and that one month’s credit was in any event wholly disproportionate to the extended amount of time for which the appellant was required to be subject to onerous home detention conditions.

    Discussion

11. The appellant’s submission that an appropriate range for the head sentence is between four and a half and six years, was based on an observation of Doyle CJ in R v Major,[1] that for a single offence of rape an offender might well receive a sentence of about five years’ imprisonment.

    [1] (1998) 70 SASR 488 at 491.

12. The comments of the former Chief Justice in Major need to be understood in the context of the circumstances in which they were made over 21 years ago.

13. The Director of Public Prosecutions had appealed a sentence of 12 years with a non‑parole period of eight years imposed upon an offender who had pleaded guilty to six counts of rape, two counts of indecent assault and two counts of burglary.  The Court allowed the Director’s appeal and substituted a head sentence of 20 years with a non‑parole period of 10 years.

14. The remark made by Doyle CJ was made in the course of explaining why the head sentence imposed by the sentencing Judge in that case of 12 years was so low as to indicate that an error had been made.  The reference to a single offence of rape for which an offender might well receive a sentence of about five years’ imprisonment was not intended to be indicative of any general tariff for a generic offence of rape.  This Court has consistently held that the circumstances in which the offence of rape is committed vary so greatly that it would be both unwise and unnecessary to suggest that any particular range is appropriate.

15. A more recent authority, R v Knight,[2] contains a useful survey by Kourakis CJ of a wide range of sentences imposed in many varied circumstances for offences of rape.  After reviewing those head sentences which ranged from five years to 20 years, Kourakis CJ concluded as follows:[3]

    Having regard to the sentences to which I have referred, it is apparent that there is a wide sentencing range for offences of this kind. However, sentences as high as 14 years have not been imposed unless a weapon has been used or the offending has involved protracted violence over and above the sexual violence of the rape itself.

    Nonetheless so wide is the range of sentences for offences of this kind, I have concluded that the sentence imposed is not manifestly excessive.

    [2] [2016] SASCFC 40.

    [3]    R v Knight [2016] SASCFC 40 at [68].

16. In Knight, the Judge at first instance had imposed a sentence for one count of burglary and two counts of rape by adopting a starting point for the head sentence of 14 years.  Although the facts are not comparable to the circumstances here, the case provides a useful illustration that there never has been, nor could there be, a sentencing tariff for the offence of rape.

17. For these reasons, I do not consider it a useful exercise to compare the particular factual circumstances relied on here by the appellant with the factual circumstances giving rise to such a wide range of sentences in the surveyed cases in Knight.  Some of the features relied on by the appellant in this case to submit that the offending was not as serious as some other cases of rape, standing alone, might provide a basis to make the submission that the appellant’s offending was less serious, however, those features need to be considered in their proper context.

18. The context in which these two offences occurred is that this was a random attack by a stranger on a young woman, late at night, as she walked home.

19. The brevity of the episode, and the lack of penile penetration and ejaculation, can be attributed to the victim’s determined resistance.  The evidence of the victim at trial was that she did everything she could to fight the appellant off.  She did not adopt the approach of submitting to the appellant as a means of protecting herself from possible greater harm brought on by resistance, but was able to make her way to the relative safety of Fullarton Road after the appellant shifted his weight and she was able to force him off her with her legs, get to her feet and run.  That is why the episode came to an end, not because the appellant desisted but because the victim maintained a resistance to him throughout.

20. In these circumstances, I consider that the appellant’s offending must be placed in a very serious category for the crime of rape.

21. Added to the circumstances of the offending was the fact that at no stage since 2013 has the appellant ever displayed the slightest remorse or contrition for his offending.  Taking the references tendered on the appellant’s behalf during the sentencing hearing at face value, it appears that the appellant has made statements to others which either demonstrate that he is still lying about the circumstances of his encounter with the victim in the park that night, or, even more disturbingly, demonstrate a complete lack of insight on the part of the appellant, notwithstanding his protestations to the contrary to others, into the nature and effect of his offending upon the victim.

22. I consider that the Judge was correct to place considerable weight on the need for personal and general deterrence.

23. For these reasons, I do not consider that a starting point of 10 years was outside the range available to the sentencing Judge.

24. I turn now to the second ground of appeal which is a complaint that the sentencing discretion miscarried because the sentencing Judge allowed only one month’s credit for the total period that the appellant spent in custody and on home detention bail. 

25. This ground of appeal may be dealt with briefly as this Court, on a number of occasions, has restated the principles which apply when considering what, if any, credit should be available to an offender on account of time spent on home detention bail.

26. They were conveniently summarised by Lovell J (with whom Nicholson and Parker JJ agreed) in R v Taylor as follows:[4]

    [4] [2016] SASCFC 54 at [19].

    19A court is not obliged to make a reduction on account of time spent on home detention although it is a factor that can be taken into account.  The Judge correctly stated that there is no mathematical formula for taking into account time on home detention bail nor any authority which mandates a specific deduction. Much will depend on the circumstances of the matter.

    20      As was stated in R v Franceschini:

    At common law, a sentencing judge in this State has a discretion to allow credit for time spent on home detention bail and to, in effect, fix a period by which the sentence otherwise to be ordered is to be reduced thereby. There is no obligation on a court to give any such credit. Further, where some allowance is made, it inevitably will be significantly less than the total amount of time spent on home detention bail, but there is no accepted formula. It is akin to a personal circumstance to be taken into account and the particular facts of each case will inform whether or not credit is warranted and the extent of any such credit that is warranted.

    [Footnotes omitted]

    Whilst it is a common practice for a sentencing judge to make an allowance for a period of home detention and deduct that allowance from the head sentence and non-parole period a court does not have to approach the problem in that way. It can be taken into account as a personal circumstance of the prisoner to which the judge gives appropriate weight when arriving at a head sentence and non-parole period. This latter approach may lack transparency.

27. I respectfully agree with those observations.  The issue here is whether the sentencing Judge has erred in exercising the discretion.

28. Here, the trial Judge gave one month’s credit for the period spent both in custody and on home detention bail.  It is agreed that the period spent in custody was 11 days, which makes it likely that a maximum of 19 days was allowed by way of credit for the period spent on home detention bail.  After his release from custody on 14 December 2016, the appellant remained on conditions of strict home detention bail until 12 June 2018, a period of some 18 months.  The appellant came from New South Wales where he was living prior to his arrest with his partner.  It can be accepted that home detention was accordingly more onerous than for a person who lived in South Australia with a support network here. 

29. He was relatively compliant with all conditions of home detention bail except for the fact that on two occasions he breached the prohibition on alcohol consumption by recording low levels of alcohol in two tests.

30. In these circumstances, I cannot see any relevant distinguishing feature between the appellant’s circumstances and the circumstances of the offender dealt with by the Court in Taylor.  Whilst, like Lovell J, I accept that the sentencing Judge had a wide discretion, I consider that in the circumstances, the amount of time spent on home detention bail called for greater credit than the parsimonious 19 days credited by the sentencing Judge.  The failure to allow sufficient credit in respect of the time on home detention bail has, in my view, led the exercise of the discretion in this case to miscarry.

31. For those reasons, I would allow the appeal, set aside the sentence imposed by the learned sentencing Judge, and resentence the appellant.

32. In resentencing, I note that this was a very serious example of the crime of rape, for the reasons which I have already canvassed in some detail when discussing the issues which arose in respect of the first ground of appeal.

33. Like the sentencing Judge, I consider that issues of personal and general deterrence loom very large in sentencing this appellant.  For these reasons, I would adopt the same starting point as the sentencing Judge, namely 10 years imprisonment with a non-parole period of seven years. 

34. However, I would deduct from the head sentence, and non-parole period, a period rounded off to six months to include the 11 days spent in custody and the approximate 18 months spent on home detention bail.  Accordingly, I would impose a head sentence of nine years and six months and a non‑parole period of six years and six months.  Both the head sentence and the non‑parole period are backdated to 12 June 2018 when the appellant was taken into custody.

35. PARKER J:          I agree with the reasons of Kelly J.  I would resentence the appellant as proposed by Kelly J.

36. DAVID AJ:            I would allow the appeal to the limited extent set out in the reasons of Kelly J.  I would resentence in the same terms set out in those reasons.