R v Knight - [2016] SASCFC 40

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v KNIGHT
[2016] SASCFC 40
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Blue and The Honourable Justice Doyle)
19 April 2016
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - CONDUCT OF TRIAL JUDGE
Appeal against sentence.
The appellant was convicted by a Judge of the District Court of one count of burglary and two counts of rape.
The appellant was sentenced to imprisonment for 12 years and seven months, reduced from a starting point of 14 years, with a non-parole period of eight years and six months.
Held per Kourakis CJ (Blue and Doyle JJ agreeing), allowing the appeal:
1. The sentence imposed was not manifestly excessive.
2. The Judge erred in failing to have regard to the opinions of a forensic psychologist, which error requires the appellant to be resentenced.
3. The appellant’s sentence is reduced to 10 years and 10 months with a non-parole period of six years and six months.
Criminal Law Consolidation Act 1935 (SA) s 48, s 168, referred to.
Heuston v R (1993) 171 LSJS 479; R v Ball, Bunce and Callis (1993) 169 LSJS 293; R v Coleman (2001) 122 A Crim R 230; R v Elliott (2001) 121 A Crim R 254; R v Armstrong [2002] SASC 174; R v Siozios [2004] SASC 299; R v Smith [2005] SASC 212; R v Baltensperger (2006) 96 SASR 34; R v Sumner & Sumner [2007] SASC 376; R v Walkuski [2010] SASC 146; R v Edwards [2011] SASCFC 33; R v M, AG (2013) 116 SASR 219; R v Bondarenko [2015] SASCFC 42, considered.

R v KNIGHT
[2016] SASCFC 40
Court of Criminal Appeal: Kourakis CJ, Blue and Doyle JJ

KOURAKIS CJ:    This is an application for permission to appeal against a sentence imposed in the District Court on a charge of burglary contrary to s 168 of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’) and two charges of rape contrary to s 48 of the CLCA. The Judge sentenced the applicant to imprisonment for 12 years and seven months, reduced by 10 per cent from a starting point of 14 years on account of the applicant’s guilty plea, and fixed a non-parole period of eight years and six months. The applicant seeks to appeal on the following grounds:
1.     The sentence and non-parole period are manifestly excessive.
2.     The learned sentencing judge erred by giving too much weight to:-
2.1     The failure of the applicant to plead guilty at his first arraignment.
2.2     The absence of an explanation from the applicant as to the reason the offences occurred.
3.The learned sentencing judge erred by giving too little weight to:-
3.1     The applicant’s efforts to rehabilitate himself following his release from prison in 1999.
3.2     The applicant’s expressions of contrition and remorse.
4.The learned sentencing judge, in conducting proceedings prior to sentencing, demonstrated that she had prejudged issues relating to:-
4.1     The timing of the applicant’s guilty plea.
4.2     The applicant’s expressions of contrition and remorse.
4.3     The weight of Mr Balfour’s report.
Grounds 2 and 3 can be disposed of quickly first.
It is not an error in the exercise of the sentencing discretion to give more, or less, weight to a particular matter than the appeal court would have given it. An exercise of the sentencing discretion is only vitiated by reference to the treatment of a relevant matter when a judge fails to consider it at all. On the hearing of the application, the applicant did not submit that the Judge was wrong to have regard to the lateness of the plea nor did he submit that the Judge did not have regard to his attempt to rehabilitate and expression of remorse. Grounds 2 and 3 therefore do not complain of any appellable error and must be dismissed. Of course, a consideration of the timing of the plea, the appellant’s remorse and his prospects for rehabilitation form part of the sentencing matrix against which the ground alleging that the sentence and non-parole are manifestly excessive will be considered.
The offences
On 4 October 1991 Ms N returned to her home after playing a social game of netball. She was 19 years of age. She showered and readied herself to go out with a friend. Shortly before midnight, while waiting for a taxi, the lights of her house were on and music was playing loudly. The applicant entered Ms N’s home through her bedroom casement windows while she was in another part of the house. Despite his subsequent denial, the applicant must have known that someone was in the house before he gained entry.
When Ms N returned to her bedroom she noticed what she recognised to be a male figure. The applicant, who was wearing a checked shirt around his head to conceal his face, moved quickly, grabbed Ms N, and demanded money from her. Ms N told him there was money in the loungeroom. He warned Ms N that he had a knife but Ms N never saw one, and one was not used. He manoeuvred Ms N into the loungeroom, keeping hold of her the whole time, and took money from her purse keeping hold of her the whole time.
The applicant pushed Ms N back into her bedroom and on to the bed. He insisted that “$10 is not enough” as he placed a pillow or doona over her face. Ms N was petrified that she would be cut with the knife. She struggled and cried whilst the applicant roughly removed her clothes. The applicant digitally penetrated Ms N’s vagina and commenced but was unable to continue with penile intercourse. He then threatened to rape Ms N orally or anally if she did not facilitate penile/vaginal intercourse. He then managed to resume and maintain sexual intercourse until ejaculation before leaving.
Victim Impact Statement
In her victim impact statement, Ms N disclosed that she was so scared after being attacked in her own home that she moved house within weeks. A series of temporary relocations followed before she settled into more permanent accommodation.
Despite the moves Ms N continued to have traumatic flashbacks. Her continuing anxiety led to her smoking much more heavily than she had and resorting to alcohol.
She married at a relatively younger age than many of her friends but the rape cast a shadow over that marriage and the birth of her first two children. A subsequent marriage also failed because of Ms N’s inability to fully trust her partner. Ms N explained:
Despite, at the age of 19, being able to intellectualise the rape as an act of random violence, the sexual nature of the assault has wreaked havoc on my self esteem, my ability to trust, and my sense of worth within intimate relationships. This, coupled with the deep and pervading sense of shame I felt, however irrational, inhibited me from honestly communicating and facing the issues it created.
The offending also interrupted Ms N’s career. At the time of the rape she was in the final year of a specialised Business Information Systems degree. The timing of the offence led to Ms N missing the graduate program recruitment drives of major national and international employers with whom fellow graduates obtained employment.
Ms N’s continuing anxiety has manifested in excessive tooth grinding with consequential and substantial dental expenses.
Ms N concluded by saying:
It is hard, however, to delineate the impact of being raped in such distinct ways. Should I to attempt to make comprehensive lists, they would run to many more pages than this. In the past two and half years, I have come to see how those long minutes one Friday night 23 years ago have coloured and constrained so much of my world since then. They still do. The damage was done, and, like an old sporting injury, it stays with you for life, flaring up in the moments you least wish or expect it to, causing emotional pain and damaging intimacy as it flares. My statement witnesses just a little of its presence in my life, however it is beyond me to write more, some things are too private and painful to commit to the permanence of public records.
Arrest, prosecution and the late guilty plea
After a matching of historical crime scene information with a DNA database, police were informed that the applicant’s DNA matched DNA taken from Ms N. In April 2013, police located the applicant in Queensland.
When the applicant was arrested on 19 July 2013 he was told that semen was located on swabs taken from Ms N that matched his DNA. In the course of the committal proceedings, he was provided with reports of that forensic analysis. On his arraignment in the District Court on 3 March 2014 before the Judge who eventually sentenced him, the applicant pleaded not guilty. The Judge warned the applicant and his counsel of the importance of an early guilty plea in cases of this kind. The Judge said:
... [I]f your client wants to get any credit, if at the end of the day it’s going to turn into a plea, unless there is going to be some real issues, and I’m raising this in your client’s interests, he is not going to get the same credit. So I want to be absolutely sure before your client is arraigned and before we engage in a process whereby there is a certain trial which will be coming on relatively soon, that your client has been fully advised.
The applicant’s then counsel assured the Judge that the applicant had been given advice on those matters.
The applicant’s first trial was listed for 17 November 2014 but was not reached. The applicant maintained his intention to plead not guilty and a second trial was listed for 27 July 2015. On the first day of that trial, the applicant pleaded guilty.
The applicant’s late guilty plea in the face of the DNA evidence and his lack of apparent remorse was canvassed extensively in the course of submissions. That discussion culminated in the sentencing hearing about his reasons for not pleading earlier. When questioned by the Judge about why he had not heeded the advice her Honour had given on his first arraignment, the applicant responded:
I should have because I was never going in the end to plead not guilty. I knew I was guilty once the evidence was given to us. That was still six months after I think I was arrested. I was still – I just took my time to do what I did do and unfortunately yes, I suppose that’s why I come back to me, I did think of myself but also I’ve thought about this every day since I’ve been arrested for it. It doesn’t get any easier for me either.
The applicant also gave the following explanation for not pleading earlier:
AThat’s another aspect I have to explain. Obviously we like our freedom. I don’t want to be an offender of anything again, but I knew I was going to be sentenced eventually and I know I should have pleaded guilty or faced up to the court straightaway but I had other things I wanted to do. I actually wanted to get rid of my pets, which I didn’t end up doing. I had plenty of time to do that. I had a horse I bought off a lady from Victoria that had a stroke and I bought a horse off her 12 months before. It was after I got remanded. I probably shouldn’t have done that. It was a horse that wasn’t broken in so I broke him in over eight months. I had him for 12 months before I came back to court.
QI am not sure when you are talking about, when did you get this horse.
AI got him in June last year and I broke him in over eight months. It wasn’t a broken horse, he was only two years old, he was only a baby, and it took me eight months to break him in. I’ve actually lost him now but I’m not sure what the lady thinks because she was very sick and that’s the only reason I bought him. I just tried to – I did try and take time, I just wanted to be patient with him, do what I wanted to do, enjoy a bit of time out there knowing that I am going to be sentenced and ended up it didn’t work out the way I planned anyway, so.
The Applicant’s Account of his Offending
The applicant’s counsel gave the following explanation of the offending:
Mr Knight saw the premises, believed the premises were empty because there were no lights on. He went through the window, which was open, the bedroom window. It was dark and he went inside the premises with the intention to steal, and that is count 1.
He became aware of the presence of someone. He disguised himself with his makeshift shirt wrapped around his face. When the victim came, he then decided to continue and rape the complainant...
He can’t give an explanation about why he did it, and in my respectful submission he demonstrated in the report of Mr Balfour that his is completely disgusted, he thinks it’s the equivalent to murder. He calls a sex offender disgusting and he’s ashamed of what he did.
Mr Balfour’s Report
Much time was occupied in the sentencing hearings discussing the psychological report of the forensic psychologist Mr Balfour and in particular his treatment of the subject of the applicant’s contrition. These matters lie at the heart of ground 4. It is therefore necessary to set out the report in some detail.
Mr Balfour is a registered psychologist, an adjunct senior clinical lecturer in psychology and a member of the Australian Psychological Society’s College of Forensic Psychologists and the College of Clinical Psychologists. On 27 October 2015 he provided a 19 page written report to the applicant’s solicitor. His report was based on a two hour clinical interview with the applicant and on his reading of the Magistrates Court Information, the Police Apprehension Report, and four witness statements including the statement of Ms N given to police within a week of the offending.
In his description of the applicant’s interview behaviour, Mr Balfour said:
He was remorseful regarding his offending behaviour and said that he was “completely sorry”.
After describing the interview behaviour, Mr Balfour set out the applicant’s family history and his relationship with his parents in quite some detail. The applicant’s parents separated when he was ten years old after 20 years of marriage. Following the separation, the applicant lived with his mother and her new partner but left home when he was 14 to escape his step-father’s physical and verbal abuse.
The report set out the circumstances of a serious offence of malicious wounding committed by the applicant during the course of robbing a business when he was 14 years of age, for which he was kept in juvenile detention for about three years. On his release, the applicant was cared for by a foster family after being declared a ward of the State until the age of 18 years.
The report also recorded the applicant’s answers to enquiries made by Mr Balfour apparently designed to exclude matters of potential significance to his psychosocial functioning. To that end Mr Balfour recorded the applicant’s early sexual experiences and sexual fantasies, and his use of sex workers. The report recorded that the applicant never worked as a child prostitute. On the subject of the applicant’s interpersonal history, Mr Balfour noted that the applicant did not experience difficulty socialising with women and had made contact with women on Facebook. The applicant had had many casual sexual liaisons, he had lived in four defacto relationships which had lasted between one to four years, but had never been married. He has a son and a daughter now in their twenties.
Mr Balfour also reported on the applicant’s family mental health history.
Mr Balfour’s report detailed the applicant’s drug use. The applicant used cannabis socially from a young age. Between the ages of 17 and 30, the period during which these offences were committed, the applicant developed an addiction to amphetamine. In the same period, the applicant abused prescription medication and alcohol and was a binge drinker. He never used more than $100 worth of amphetamine a day but had gone without sleep for days at a time. The applicant never developed any drug induced psychotic symptoms. Mr Balfour reported that the applicant had not used amphetamines since 1994.
Mr Balfour reported that the applicant was supported largely by Centrelink with some casual earnings. He lived in rental accommodation. Mr Balfour set out the applicant’s occupational history: construction labourer, car detailer, demolition worker, horse stable worker, dog kennel worker, bathroom renovator, laundry attendant and cleaner. The applicant’s longest period of employment was two years. Mr Balfour reported that the applicant’s main recreational interest is horse training.
Mr Balfour related the following details of voluntary work performed by the applicant:
Mr Knight has done volunteer work for Anglicare and the Salvation Army. He has mainly worked as a furniture removalist for the Salvation Army. He has also tested electrical equipment for Anglicare.
For the last couple of years, Mr Knight has been attending the Church of the Salvation Army in Gawler. He was attending church weekly. He is currently having support from a Pastor.
That information was contradicted to a significant degree by a pre-sentence report provided to the Judge.
The pre-sentence report also related to the applicant’s claim to have performed much voluntary community work. The applicant had informed the author of the pre-sentence report that he was heavily involved with his local church, but when asked to provide contacts within the church he admitted that he did little more than attend the church and associate with other church goers. The applicant admitted to the author of the pre-sentence report that he did not volunteer or spend time with underprivileged people in any organised fashion. The applicant later also admitted that he had stopped going to church at all a year earlier. The applicant informed the author of the pre-sentence report that he had attended the Salvation Army Church in Gawler and suggested that the officer speak with the chaplain Mr Darren Cox. However when the author contacted the church he was told that Mr Cox was in Sydney. The manager of the Salvation Army Centre said that he did not know Mr Knight, nor did another member of the church to whom the author was referred.
The author did speak with someone from Anglicare who revealed that the applicant had volunteered for Anglicare between March and October 2009 but had had no contact with them since that time.
Mr Balfour noted in the psychological report that Mr Knight’s physical health was good and he did not have hepatitis or HIV.
Mr Balfour referred to the applicant’s offending history and in particular his conviction for armed robbery in April 1997. It is convenient to interpolate here the offending recorded in the antecedent report provided to the Judge.
In 1987 the applicant was convicted of various street offences culminating in an assault on police and was sentenced to imprisonment for 12 months. In 1988 he was again imprisoned for a group of offences including assault police. There was another conviction for assault occasioning actual bodily harm in the same year and yet another in 1992. The applicant was sentenced on 11 April 1997 to five years imprisonment with a non-parole period of three years commencing on 21 December 1996, the date on which the offence was committed and on which the applicant was taken into custody. Thereafter the applicant did not offend again, save for some minor traffic offences, until October 2012 when he was convicted of assault and damaging property and placed on a bond to be of good behaviour for 12 months.
Mr Balfour questioned the applicant about his reasons for committing the offences. The applicant told Mr Balfour that at the time of the offending he had drunk much alcohol, mixed with Rohypnol and Mitsubishi pills. He had also snorted some lines of amphetamine. The applicant told Mr Balfour that he had been out that night but did not know the victim of the offence. The applicant said that he broke into her house looking for money. He said that he did not know that anyone was there. Mr Balfour concluded that the applicant ‘then opportunistically committed the current sexual offence’.

Under the heading ‘Clinical Opinion and Recommendations’ Mr Balfour set out the applicant’s criminogenic risk factors:
Mr Knight possesses several of the traditional static (historical) and dynamic (acute) criminogenic risk factors which have been identified by researchers as predisposing an individual towards offending behaviour. He exhibited evidence of a conduct disorder during his adolescence. He has socially gravitated towards a predominantly negative peer group. He does not have an antiauthoritarian attitude. He does not suffer from pathological boredom in the community. He has an extensive juvenile offending history which has led to lengthy detention. He also has a serious adult offending history which has led to lengthy imprisonment. He has a history of illicit drug abuse, and binge alcoholism. He has pervasive anger management problems which have led to legal conflict. He has a history of generalised impulse control problems in the community, and has engaged in reckless, thrill-seeking offending behaviours. I would rate his general criminogenic profile as being in the moderate to high range of risk (i.e., on a risk severity rating scale of low, moderate, and high) for committing new (non-sexual) offences during the next 12 months.
Mr Balfour described the applicant’s psychological profile as that of a 51 year old man with a level of intelligence in the low-average range who had suffered low self-esteem, had poor coping skills and a low tolerance of stress and frustration. Mr Balfour commented that the applicant was not prone to feeling depressed and anxious. Mr Balfour’s diagnosis of the applicant was of an antisocial personality disorder which had been exacerbated by drug and alcohol abuse problems.
Mr Balfour concluded:
With the assistance of a supervised, structured rehabilitation programme, I believe that Mr Knight’s prognosis to cease offending is fair (i.e. on a prognosis rating scale of poor, fair, and good) for the following reasons:
1.I believe that in recent years, Mr Knight is displaying evidence of antisocial “burnout” and/or social maturation. He is now 51 years of age. Consequently, the severity of his antisocial behaviour has diminished and he is displaying evidence of evolving prosocial behaviours.
2.His work ethic has significantly improved. He has increased his employability by completing a number of training courses. He has completed Certificates I, II and III in Warehouse and Logistics through Skills for All. He has also obtained a Forklift Driver’s Licence, and White Card. He wants to work in either the Dairy, or Horse Racing Industry. I believe these are realistic career goals for him to aspire to.
3. His anger management problems have diminished. He has not been in a street fight since 2012.
4.He had fostered two children in Africa through Amnesty International.
5.He has been able to maintain stable accommodation in a privately rented house for a few years. He no longer wants to lead a transient lifestyle in the community.
6.Since 1993, he has actively avoided his former negative peer group.
7.For the last couple of years, he has been attending the Salvation Army church in Gawler on a weekly basis, and he has developed a supportive relationship with a Pastor.
8.He no longer uses illegal drugs, and his alcohol consumption is at socially appropriate levels.
9.I note that Mr Knight committed the current sexual offences during 1991. There is no evidence to suggest that he has sexually re-offended since then. He is very remorseful regarding his offending behaviour, and is ashamed of his actions.
My recommendations regarding Mr Knight’s rehabilitation are that he participates in a supervised, structured rehabilitation programme that includes:
1.Referral to the Drug and Alcohol Services Council to learn relapse prevention strategies.
2.Random urine drug screens to monitor his pattern of drug usage.
3.A relapse management programme should be implemented to deal with relapses of his drug usage. The purpose of this intervention would be to encourage him to be honest regarding any single drug relapse so that it could be prevented from escalating into an ongoing dependency and lead to offending. For example, it could be arranged for him to have a respite admission for a brief period to a residential drug and alcohol rehabilitation facility if he experienced a single drug relapse.
4.A case manager who has weekly contact with him to provide him with support and guidance.
5.Referral to financial counsellor who can assist him to improve his budgeting skills.
6.He would benefit from cognitive-behavioural therapy with a psychologist to assist him improve his repertoire of coping strategies and tolerance of stress, improve his social problem solving skills, help him to become more assertive, and changes his criminogenic attitudes. He would be an appropriate referral to the Forensic Mental Health Services Outpatient Department.
7.Referral to a psychiatrist to assess his suitability for pharmacotherapy for his anger.
8.Referral to the range of rehabilitation programmes offered by community corrections (i.e., cognitive skills, drug and alcohol rehabilitation, anger management, etc).
9.Referral to the Sexual Behaviour Clinic in prison; and the Owenia House programme in the community when he is eventually released on parole.
I observe that in the ninth reason for his prognosis, Mr Balfour seems to have accepted the applicant’s interview behaviour to prove that the applicant was, in truth, remorseful. Mr Balfour does not explain why he accepted the applicant’s self-serving statements. The applicant’s late plea and his reasons for not pleading earlier show that he was not genuinely contrite. Forensic psychologists and psychiatrists should exercise some caution in this fraught field. Ultimately, however, it will generally be one of a number of considerations on which their final opinions and recommendations are premised. Rejection of a premise of that kind does not necessarily undermine or invalidate all of their opinions.
The Judge’s rejection of Mr Balfour’s opinions
In her sentencing remarks, the Judge referred to the report of Mr Balfour in the following terms:
You say you are sorry. You told Mr Balfour that and he appeared to accept that without question and you told me that in evidence. I do not accept that. I note that your guilty pleas spared the victim the final indignity and horror of having to relive her experience as she gave evidence in court and for that, you will receive a discount which the law provides. There was an efficacy in your guilty pleas.
Having considered all the matters and listened to you, I do not believe that you are sorry at all for anybody other than yourself. When you gave evidence the other day, you expressed more emotion and feeling about a horse and the loss of opportunity to be with that horse than you did about the victim and what you did to her.
The report from Mr Balfour is quite unhelpful as to your offending. There appears to be no adequate exploration of why you committed these offences and you have given no explanation to the court. You did not just break in and ‘happen’ to rape the victim. You disguised yourself. You threatened her with a knife. You threatened to orally and anally rape her. You violated her in her own home, a place where she was entitled to feel safe and secure and you have not explained this at all.
The Judge was entitled to reject the applicant’s expression of remorse and to find that he was not ‘sorry at all for anybody other than [himself]’. Indeed, as I have already observed, his decision to plead not guilty and to maintain that plea when the first trial was not reached, bowing to the inevitable only when the second trial was reached, makes that clear. His poor testimonial explanation for not earlier accepting responsibility for his offending and the damage he caused served only to highlight this selfishness.
To describe Mr Balfour’s report as ‘quite unhelpful as to your offending’ fails to accord Mr Balfour’s identification of the criminogenic factors which contributed to the applicant’s offending any weight. It is apparent from that passage that the Judge derived no assistance from the report and she therefore did not give it any weight. The Judge was wrong to put aside entirely Mr Balfour’s opinion about these matters. Moreover in dismissing, in that way, Mr Balfour’s opinion about the factors which led to the offending, the Judge must also have put aside his opinion as to the prognosis. Again the Judge was wrong to give that material no weight. Mr Balfour was an experienced clinical psychologist. His report on its face, albeit lengthy, was comprehensive and logical. The applicant was entitled to have it accorded some weight.
The weight to be attributed to Mr Balfour’s opinion that the applicant’s prospects of not again committing sexual offences was fair had to be qualified by the rejection of the proposition that he was remorseful. However, Mr Balfour’s opinion was based on much more than his view that the applicant was remorseful. Indeed that view was ancillary to the primary point made in the ninth reason, which was that there was no evidence that the applicant had committed any other sexual offence in over two decades since the offending. The diagnosis of antisocial personality disorder and the signs of some easing of that condition with age is also an important matter. The greater stability in his home and working life, and the reduction in his drug and alcohol abuse, are also significant.
I turn next to the Judge’s criticism that in Mr Balfour’s report there was no adequate exploration of why you ‘committed these offences and “happened” to rape the victim’.
The Judge’s criticism is probably a reference to Mr Balfour’s comment that the applicant opportunistically committed the offence. Contrary to the Judge’s criticism, Mr Balfour did explore the applicant’s possible motives. For example, Mr Balfour enquired about the applicant’s sexual functioning which might have revealed sexual predatory traits. In the course of sentencing submissions, the Judge was critical of Mr Balfour for asking those questions and wondered about their relevance. However, they are, on their face, an exploration of the applicant’s possible motive.
Mr Balfour may not have explored the applicant’s motives as the Judge might have thought appropriate and may not have reached the conclusion that the Judge would have, but that does not of itself render his report ‘quite unhelpful’.
The criminiogenic factors identified by Mr Balfour:
·drug abuse (which importantly included amphetamines at the time of the offending);
·poor impulse control, reckless behaviour;
·pervasive anger management; and
·absence of any indication of other predatory sexual offending,
support the possibility that the rape offence was opportunistic and secondary to an intention to steal.
The evidence of Ms N that the applicant first demanded money also suggests that the applicant acted opportunistically in raping her. On the other hand, it may also be that the applicant had watched Ms N move about the house and entered the house intending to rape her. Certainly, and contrary to the implication in the Judge’s remarks, the applicant’s disguise does not tell very heavily one way or the other. Burglars commonly wear disguises. On the material before the Judge, it is difficult to make a finding one way or the other. The evidence does not exclude beyond reasonable doubt that the rape was opportunistic. However on either explanation, Mr Balfour’s identification of the criminogenic factors remained important and could not be ignored.
The Judge’s observation that Mr Balfour’s report was quite unhelpful and the failure to refer to the criminogenic factors he identified and his assessment of the risk that the applicant would re-offend in the same way, shows that the Judge did not give those opinions any weight. In addition, the exchanges between the Judge and counsel during the submissions show that the failure of the Judge to refer to those matters was not a matter of mere omission.
The transcript of the sentencing hearing shows that the Judge was not disposed to give any report from Mr Balfour much weight even before it was received. On 29 September 2015, the applicant’s counsel sought an adjournment so that a report might be obtained from Mr Balfour. The applicant had pleaded guilty on 28 July 2015. The Judge was told that an appointment could not be made with Mr Balfour before 22 September 2015. The Judge then made the following observation:
… There are plenty of other forensic psychologists out there, and I have got to say that I am not deprecating Mr Balfour full stop, but I can tell you right now I would prefer if Mr Balfour did not express a report in the negative, as he often does, about things that are irrelevant to the matter. A lot of his reports are very lengthy and unnecessarily so. …
On 29 October 2015 when counsel tendered Mr Balfour’s report on the resumption of the sentencing hearing, the Judge asked why he was tendering it, why he was seeking to rely on it and on what basis Mr Balfour could say that the applicant was contrite or remorseful. The Judge then continued:
HIS HONOUR: I find Mr Balfour’s report to be most unhelpful. I don’t understand what p. 13 is about. I don’t understand what the relevance of this man’s – given the nature of the offence of rape, I wouldn’t have thought whether this man masturbated at a certain stage of his life or attended a prostitute is at all revenant. I don’t understand why that’s in there or why Mr Balfour hasn’t done any of the checks of the veracity of your client. He doesn’t qualify his opinions at all. He express an opinion about your client’s future prognosis to cease offending based on things that are not proven to be the case, so I don’t accept the report of Mr Balfour.
I don’t know what the Crown’s attitude is, maybe they find something useful in it but I can’t see anything useful in it at all.
The Judge then criticised at length Mr Balfour’s opinion that the applicant was remorseful. As I have already observed, the Judge was right to find that the applicant was not truly remorseful. Her Honour was also right to criticise the failure of Mr Balfour to set out how he came to that opinion. However, those failings were no reason to reject the report and Mr Balfour’s opinions entirely.
On the next occasion on 2 November 2015, different counsel appeared for Mr Knight. Counsel explained that the applicant relied on the report of Mr Balfour to rule out ‘aberrant sexual dysfunction’. The opinion of Mr Balfour on that issue was relevant and important. The Judge responded:
HER HONOUR: But, Mr Mead, I have raised this before and I know other judges have too. I don’t doubt the underlying integrity of the author, nor his goodwill, but the way he writes reports and this one is an example of it, is – he rules out bed-wetting as an issue as well, whether or not this man attended a sex shop is probably irrelevant. What I don’t have from him is one word, unless I misunderstood because they are very difficult reports to read, to explain why he had a break, which is what he has fundamentally, in his criminogenic activity; why he raped this woman in this terrible way. And it may well be that the bottom line is he doesn’t say anything, but I couldn’t understand his report to provide me with any assistance. I found his opinions expressed at the end of the report even more extraordinary.
Contrary to the remarks of the Judge, forensic psychologists have an expertise in identifying sexual dysfunction which may lead to sexual offending and identifying other criminogenic factors. Sentencing Courts have long accepted the expertise of forensic psychologists to make such assessments. In psychological reports, and in medical reports generally, the exclusion of possible diagnoses is often as important as recording the diagnosis which is made. In this case for example, the exclusion of pathologically sexually aggressive traits was important so that both the need for the protection of the community, and the prospects of rehabilitation, could properly be assessed.
The applicant’s counsel next emphasised that he relied on the diagnosis of an antisocial personality disorder and the signs of change in the manifestations of that disorder in recent years.
As the Judge observed, the opinions of Mr Balfour, like those of any forensic psychologist, should not be accepted uncritically and there may be good reasons for a sentencing judge to be guarded in acting on them. However, a defendant who relies on such reports is entitled to have the opinions expressed in them properly considered.
The appropriate range
In Heuston v R,[1] this Court considered whether a sentence of imprisonment for 11 years with a non-parole period of seven years imposed on five counts of rape (three counts of oral rape and two counts of vaginal rape) was manifestly excessive. The offender, who was not known to the victim, broke into her home and forced her to the floor. The offending took place over a relatively short period of time and no weapon was involved. The offender was convicted at trial. He had no prior convictions for sexual offences or for offences of violence against women but had a substantial history of other offending including assaults and inflicting malicious injury. The offender’s appeal was dismissed.
[1] Heuston v R (1993) 171 LSJS 479.
In R v Ball, Bunce and Callis,[2] this Court allowed appeals against sentence by three offenders who had all actively taken part in the rape of the victim. No weapon was used but an object was used to penetrate the victim. The appellants were convicted at trial and were all sentenced to 11 years and four months’ imprisonment with a non-parole period of seven years. On appeal, the principal offender’s sentence was not reduced, however, the other two offenders’ sentences were reduced to 10 years’ imprisonment with a non-parole period of six years.
[2] R v Ball, Bunce and Callis (1993) 169 LSJS 293.
In R v Coleman,[3] the offender appealed against a sentence of imprisonment for 15 years with a non-parole period of 11 years. The sentence was imposed for offences of serious criminal trespass, armed robbery, assault and two counts of rape. The offender broke into the victim’s home, threatened the victim and her young son, dragged the victim from her house and assaulted her. The victim suffered a bleeding nose. Two knives were used in the course of a protracted attack which persisted over a period of about one hour. The offender had a history of serious offending, including offences of dishonesty, burglary and serious assault. The offender’s appeal against sentence which was based on a starting point of imprisonment for about 18 years was dismissed.
[3] R v Coleman (2001) 122 A Crim R 230.
In R v Elliott,[4] this Court allowed a Crown appeal against a manifestly inadequate sentence of 12 years’ imprisonment, reduced from 15 years, with a non‑parole period of nine years, imposed on four counts of rape and a count of causing grievous bodily harm with intent to do so. The offences took place during the course of a single home invasion. The offender, who was not known to the victim, savagely beat, kicked and punched her causing serious facial damage, including a fracture of the left orbital floor which required a bone graft. The victim suffered permanent damage to her vision, a fracture of the cervical spine and lost some of her teeth. The victim was hospitalised for eight days, and required considerable further treatment. No weapon was used. The offender only had prior convictions for minor offending. This Court commenced with a starting point of imprisonment for 20 years, reduced for a late plea of guilty to 17 years, and a non-parole period of 13 years was fixed.
[4] R v Elliott (2001) 121 A Crim R 254.

In R v Armstrong,[5] on a Crown appeal against a manifestly inadequate sentence of five years’ imprisonment with a non-parole period of 18 months imposed for three counts of rape on one victim, this Court sentenced the offender, reduced from a starting point of 12 years, to imprisonment for nine years for an early guilty plea with a non-parole period of five years. The victim was pushed to the ground before being raped. The rape continued over one and a half hours. The offender was not known to the victim and had only committed minor prior offences.
[5] R v Armstrong [2002] SASC 174.
In R v Siozios,[6] a Crown appeal against a manifestly inadequate sentence on offences of aggravated serious criminal trespass and two counts of rape against an 84 year old woman was successful. This Court increased the sentence from eight years’ imprisonment with a non-parole period of five years to a sentence of imprisonment for 11 years with a non-parole period of six years and six months. The offender was not known to the victim and had a history of offending, including indecent assault.
[6] R v Siozios [2004] SASC 299.
In R v Smith,[7] this Court dismissed the appeal of a defendant against a sentence of imprisonment for 15 years, reduced from a starting point of 20 years for a plea of guilty, with a non-parole period of 11 years, imposed for two counts of rape, one count of aggravated robbery and another unrelated serious criminal trespass and theft offences. The victim was a 70 year old woman who was threatened with a knife and bound before being raped. She suffered numerous injuries. The offender had a lengthy criminal record.
[7] R v Smith [2005] SASC 212.
In R v Baltensperger,[8] this Court considered an appeal against sentence by an offender who had been sentenced for five counts of rape against a single victim. The victim had been abducted in the offender’s car and threatened with a loaded gun. The rapes were committed over a period of several hours. The offender was not known to the victim. This Court dismissed the offender’s appeal against a head sentence of imprisonment for 15 years imposed after a trial.
[8] R v Baltensperger (2006) 96 SASR 34.
In R v Sumner & Sumner,[9] this Court allowed a Crown appeal against a manifestly inadequate sentence imposed on two offenders. The offenders had raped the victim, whom they had just met, over a period of several hours during which time she was intimidated but no weapon was used. Both offenders had relevant prior convictions. They were sentenced to eight years imprisonment with a non-parole period of four years.
[9] R v Sumner & Sumner [2007] SASC 376.
In R v Walkuski,[10] the defendant’s appeal against sentence was dismissed. He was sentenced to imprisonment for 17 years with a non-parole period of 13 years for two sets of offences. The first set involved six counts of rape committed on a sleeping victim. A starting point of imprisonment for six years was selected. The other set involved offences against another victim. They were aggravated serious criminal trespass and false imprisonment which attracted a sentence of imprisonment for four years, reduced from a starting point of six years, and a further sentence of false imprisonment against the same victim which attracted a sentence of imprisonment for seven years, reduced from nine years for a guilty plea.
[10] R v Walkuski [2010] SASC 146.
In R v Edwards,[11] the defendant’s appeal against sentence was dismissed. The defendant was sentenced to eight years imprisonment (after a reduction of 10 per cent for his guilty plea) on two counts of rape. The victim was severely beaten but the offender was separately sentenced for that offence. The offences occurred overnight. There was a relationship between the offender and the victim. There was a previous history of offending.
[11] R v Edwards [2011] SASCFC 33.
In R v M, AG,[12] an appeal by the Crown against a manifestly inadequate sentence was allowed. This Court imposed a sentence of imprisonment for 13 years, reduced from 14 years for a plea of guilty, for five counts of rape and a count of aggravated serious criminal trespass. The offender had used a sledgehammer to rape the victim. The offending occurred over a period of several hours. The victim and the offender were known to each other.
[12] R v M, AG (2013) 116 SASR 219.
In R v Bondarenko,[13] the defendant’s appeal against sentence was allowed. The sentence was imposed for counts of being unlawfully on premises, assault occasioning actual bodily harm, five counts of rape and one count of false imprisonment. The offender was the next door neighbour of the victim. There was a violent struggle during which the offender threatened to kill the victim with a knife he held. The offending occurred over four hours. A head sentence of imprisonment for 15 years, reduced from 16 years for a late plea of guilty, was imposed.
[13] R v Bondarenko [2015] SASCFC 42.
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.
Resentencing
Even though the sentence is not manifestly excessive, the Judge’s error in failing to have regard to Mr Balfour’s opinions requires that the applicant be resentenced.
On that re-sentencing, I would select a starting point of 12 years. I would select a lower starting point than the Judge because:
·the evidence does not establish that the applicant broke into Ms N’s premises with the intention of raping her. The applicant should be sentenced on the basis that the rape was opportunistic and secondary to the robbery;
·the evidence does not disclose any further offending of this kind by the applicant in the period of about two decades since the offences was committed;
·there is evidence of increasing stability and a subsidence of the applicant’s anti-social personality disorder.
I would allow a reduction of 10 per cent for the late guilty plea and impose a head sentence of 10 years and 10 months. Because the applicant has had the benefit of parole before but has still reoffended, it is not appropriate to fix a relatively low non-parole period. His underlying antisocial personality disorder is a reason for continuing caution but its amelioration allows some scope for rehabilitation. A non-parole period of 60 per cent of the head sentence is appropriate. I would therefore fix a non-parole period of six years and six months.
Conclusion
I would grant permission to appeal and allow the appeal. I would:
·set aside the sentence imposed in the District Court;
·impose instead a sentence of 10 years and 10 months commencing on 28 July 2015; and
·fix a non-parole period of six years and six months.
BLUE J: I agree.
DOYLE J: I would allow the appeal. I agree with the reasons of the Chief Justice, and with the sentence he has proposed.