R v Huggett No. DCCRM-99-710, DCCRM-00-57

[2001] SADC 3

R v PETER JAMES HUGGETT
[2001] SADC 3

Judge Lunn
Criminal

REASONS FOR SENTENCE

1. On 5 June 2000 at the arraignment day for the Port Augusta Circuit Court Peter James Huggett pleaded guilty to rape in that on 23 March 1999 at Whyalla he had anal sexual intercourse with the victim without her consent.

2. For several years prior to the rape Huggett had been living in a defacto relationship with the victim who was 37 years of age.  He had been violent towards her on a number of occasions and the relationship had deteriorated to such an extent that on the day before the rape she had threatened to leave him.  Shortly after he came home on the evening of 23 March he argued with the victim.  At the time he was substantially affected by amphetamines.  He became aggressive and violent.  He forcibly undressed her.  He carried her out of the kitchen in the home which they shared into the bedroom and tied her wrists to the bed post with her pantihose.  She was hysterical.  He had anal intercourse with her in spite of her protests about it.  During the intercourse he pushed a pillow into her face to stop her screaming.  He then desisted before ejaculating, but when the victim said she was going to call the police he slapped her across the face on three occasions.  On a medical examination later that night the doctor found a tear in the victim’s anus, redness to her nose and chin, minor bruising on the left side of her throat, multiple bruising to both her forearms and red horizontal marks on her wrists.

3. In January 2000 Huggett was diagnosed as suffering from an amphetamine-induced psychosis.  However, it was not proved that he had such a psychosis at the time of the rape.  His thought processes were substantially affected by drugs at the time, but that is not a mitigating factor as it has not been shown to be attributable to a mental illness as distinct merely from the effect of drugs which were voluntarily ingested.  While I accept that the rape would not have occurred if he had been sober that is no defence or excuse.

4. The Victim Impact Statement and its associated documents disclose that the rape has had a major adverse effect on the victim and members of her immediate family.  She has suffered depression and a post traumatic stress syndrome and has been having ongoing psychiatric treatment.  Prior to the rape she had held the same employment for twelve years but since the rape she has not worked and has been psychiatrically unable to work.  Soon after the rape, and as a result of it, she left Whyalla where she had lived for many years and had to re-establish herself in Adelaide.  As a consequence of her unemployment she became bankrupt.  While some of the matters referred to in the Victim Impact Statement may well have occurred in any event upon the inevitable breakdown of the defacto relationship much of what she has suffered since is attributable to the rape.

5. On his initial arraignment on 8 September 1999 Huggett pleaded not guilty.  However, the trial was postponed because of his drug-induced mental condition.  The matter was listed for the Circuit to commence on 5 June 2000 and a plea of guilty was entered at the commencement of that Circuit session.  Substantial credit is to be given for that plea.

6. On 21 October 1999 Huggett had been sentenced by this Court to imprisonment for 9 months for supplying methylamphetamine, but that sentence was suspended upon him entering into a bond of $500 to be under the supervision of a Probation Officer for 9 months and to obey that officer’s lawful directions as to drug abuse counselling.  The Director has applied to revoke the suspension of that sentence for breaches of the bond in him not keeping appointments arranged by his Probation Officer for attending upon social workers.  On 5 June 2000 the bond and its breach were admitted by Huggett.

7. In the proceedings before His Honour Judge Hume on 21 October 1999 Huggett’s then counsel said that while his client had previously had a major problem with amphetamine abuse he had reduced his use of it dramatically within the previous two or three months and was almost free of amphetamine use by that time.  He said that Huggett was seeking professional assistance to overcome his problem with amphetamines.  The conditions which were placed in the bond about counselling were generally no more than Huggett’s counsel had indicated that he was intending to undertake in any event.  However, shortly after 21 October 1999 Huggett reverted to major amphetamine abuse which led to his voluntary admission to Glenside Hospital on 29 January 2000 with delusions and hallucinations.

8. Huggett is 34 years of age.  After the rape, but before the revocation of his bail, he entered into a further defacto relationship with another woman.  He has a 13 year old daughter by an earlier relationship who lives with her mother.  He has a substantial criminal record.  On 23 January 1997 he was imprisoned for 2 years with a non parole period fixed at 18 months for a serious offence of assault occasioning actual bodily harm which the sentencing Judge considered was sufficiently serious to warrant immediate imprisonment.  In that offence he had, while under the influence of alcohol and drugs, attacked a nephew with a metal pipe.  He has no previous record for sexual offences.

9. Two reports from Dr O’Brien and one from Dr Nance, both psychiatrists, were tendered.  Regard has been had to their contents, but it is not necessary to repeat them in these reasons.  In February 2000 Huggett was diagnosed as having an amphetamine-induced psychosis.  He was treated in Glenside Hospital and appears to have since made some progress in overcoming his amphetamine problem.

10. Bail was revoked on 6 July 2000 and Huggett has been in custody on this matter since that time.  It was common ground that the sentence to be imposed should be backdated to that date.

11. The offence is a nasty, violent rape which has had major adverse consequences for the victim.  Huggett is now remorseful for what occurred.

12. An unusual feature of the matter is that in recent times the victim has written to the Court indicating that she forgives Huggett for the rape and seeks mercy and leniency for him.  There has been some communication by telephone between the victim and Huggett in recent times, but there is no suggestion that the victim wishes to resume her former relationship with him.

13. The wish of the victim is but one of many factors which the Court must weigh in the balance in determining what is the proper and just penalty to be imposed for the offence.  The wishes of the victim do not bind the Court to impose what would otherwise be an unduly lenient sentence: Coulthard v Kennedy (1992) 60 A Crim R 415; H (1995) 81 A Crim R 88; R v F (1998) 8 Tas R 88. This is not a case where the offender’s imprisonment will disrupt a natural family unit as the defacto relationship was doomed in any event and there are no children involved. For the protection of women in other similar relationships there must be a substantial penalty imposed which will provide general deterrence against violent and humiliating rapes. The community cannot tolerate such behaviour even though the victim may subsequently see fit to forgive her rapist. In the circumstances here little weight can be given to the wish of the victim in fixing at the appropriate penalty.

14. The sentence of the Court is that Huggett be imprisoned for 4 years and 6 months.  But for the plea of guilty this would have been imprisonment for 6 years.

15. The suspension of the sentence of 9 months imprisonment imposed on 21 October 1999 is revoked.  This is to be cumulative upon the sentence of 4 years and 6 months.  This produces a head sentence of 5 years and 3 months.  A non parole period is fixed at 42 months.  Both the sentence and the non parole period are to run from 6 July 2000.

16. In the circumstances the monetary amount of the bond is not estreated.

17. In publishing reasons for sentence in this form I am departing from the previous general practice of the Court.  Older authorities say that remarks on sentencing are not reasons for judgment and are spoken primarily for the benefit of the person being sentenced: Shrubsole v Rodriquez (1978) 18 SASR 233 at 235. However, in recent times appeal courts have increasingly required sentencing Judges to be explicit about how they have arrived at the sentence imposed. As was recently stated by Gray J in Dal Piva v Maynard (2 November 2000, Jud No [2000] SASC 349) the sentencing Court is obliged to provide sufficient reasons to enable an appellate Court to review the penalty imposed. The reality is that what have been called sentencing remarks are becoming more detailed and are being addressed primarily to the Court of Criminal Appeal and not to the offender. In my view it is an unprofitable use of judicial and Court resources, and an unwarranted expense to the parties, to spend a substantial amount of time in open Court reading out lengthy sentencing remarks, and particularly where they contain the citation of legal authorities. That practice was abandoned many years ago in the civil jurisdiction. In my view the time has come to abandon it in major sentencing exercises. The course I am adopting is not contrary to s9(1)(a) of the Sentencing Act as that section does not require the reasons to be stated orally. I am stating them in writing and a copy is available for the offender. Insofar as it is desirable to emphasise some particular point to the person being sentenced I can do this orally at the time of sentencing in addition to publishing the written reasons.