R v LINDSAY - [2015] SASCFC 62

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v LINDSAY
[2015] SASCFC 62
Judgment of The Court of Criminal Appeal
(The Honourable Justice Vanstone, The Honourable Justice Blue and The Honourable Justice Lovell)
1 May 2015
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
The Director of Public Prosecutions seeks permission to appeal against sentence - the respondent was convicted by a jury for two separate criminal incursions, both involving home invasions, thefts and violence and the second one involving rapes - the judge imposed a single sentence of four years imprisonment in respect of the first group of offences and a single sentence of six years in respect of the second group of offences, having first reduced each sentence by about one third - the total head sentence imposed was 10 years imprisonment with a non-parole period of six years and six months - whether the sentence was manifestly inadequate.
Held: neither the individual sentences imposed nor their total adequately reflected the extent and degree of the criminality involved in the respondent's offending - the sentence requires the intervention of this Court for the purposes of maintaining adequate standards of sentencing - permission to appeal granted - appeal allowed - respondent sentenced to a total head sentence of 13 years and four months with a non-parole period of eight years and three months.
Criminal Law (Sentencing) Act 1988 (SA) s 10(1)(f), s 10(2)(b), referred to.
R v Bondarenko [2015] SASCFC 42, considered.

R v LINDSAY
[2015] SASCFC 62
Court of Criminal Appeal: Vanstone, Blue and Lovell JJ

VANSTONE J: The Director of Public Prosecutions seeks permission to appeal against a sentence imposed in the District Court for two separate criminal incursions, both involving home invasions committed by more than one intruder, thefts and violence, and the second one involving two rapes.
The final sentence imposed comprised the addition of two single sentences each reflecting the totality of offending at the respective scenes. That total was imprisonment for ten years with a non-parole period of six years and six months. It is accepted by counsel for the Director that the reductions from each indicative starting point of about one-third were appropriate in the circumstances of the case. The Director’s complaint is that the starting point for each single sentence was manifestly inadequate and that led, in turn, to manifest inadequacy in the head sentence and non-parole period ultimately imposed.
Background
The facts in relation to each group of offences appear clearly in the sentencing remarks. The first group of offences occurred on 6 October 2012. It comprised aggravated serious criminal trespass in a place of residence, aggravated robbery and assault.
At about 11 o’clock on the morning of that day the victim (V1) and her 11 year old son were inside their home when two aboriginal men wearing hooded tops, sunglasses and bandanas kicked in the front door and forced their way in. One man held a crowbar and the other what V1 believed to be a cattle prod. Upon their entering V1 and her son ran out the back door. The offenders caught them in the back yard and threatened to hit the boy if they did not return inside. They went back into the house. The boy was taken to a bedroom by one offender and made to sit down there. The other offender demanded money from V1. She handed him money from her handbag. The two men then ransacked the house, taking a briefcase containing items. They then drove off in a black four-wheel drive vehicle.
As the two men left the boy rang his uncle who lived nearby. The uncle took an axe handle and quickly walked to his sister’s home. At that point the offenders returned, driving into V1’s driveway. One of the men went back into the house apparently looking for a pair of sunglasses which had been left behind. Unable to find them he went back to the vehicle. At that point the offenders were confronted by the uncle. One of the men struck him from behind and he was knocked unconscious. That gave rise to the charge of assault. When he regained consciousness the offenders had left. He was found to be suffering a wound to one of his arms which required suturing.
Later, the respondent’s DNA was found on the sunglasses.
The serious criminal trespass was aggravated in three respects. First, the respondent knew that V1 was present in her home at the time. Secondly, the offence was committed with another person and thirdly, offensive weapons were used. The robbery was aggravated by the fact of its being committed in company and also by the use of offensive weapons. In addition, the assault committed for the purpose of making good the escape needed to be reflected in the sentence.
The second group of offences occurred during the early hours of 19 October 2012. V2 was at home with her eight year old daughter when awakened by banging noises near her front door. By means of her security camera she saw three aboriginal men at the front door. Their faces were concealed by bandanas and beanies. They forced open the external screen door and then the wooden door. They entered the house and confronted V2. A cattle prod was placed close to her face and she was directed to kneel on the floor. Her head was covered. She was raped, although it was not clear by which intruder, and an acquittal was directed on that count. After a period of time V2 heard at least one of the offenders leaving the house through the front door. The respondent then lifted V2 to a sitting position on a lounge chair and raped her twice, including orally. Having ejaculated into her mouth he went to some lengths in an unsuccessful attempt to remove traces of his DNA. Soon afterward the respondent left the house. V2 discovered that several items had been stolen including iPhones, laptop computers, cameras, and other electrical equipment.
Again the serious criminal trespass was aggravated by the offenders’ knowledge that V2 was at home, by the fact that there were three intruders and by the use of an offensive weapon.
That bare recitation of the facts demonstrates what serious offences these were. Each offence was a serious example of its type. The judge described the offending as “brazen home invasions in the course of which [the respondent and his accomplices] terrorised the victims with weapons, including a cattle prod and stole property”. In the case of V2 she was also subjected to humiliating rapes. The judge remarked upon the fact that in both cases women were alone with young children who themselves must have been desperately frightened by the events. He said the conduct was “grave, cowardly and despicable”. It is apparent that the offenders must have planned the offences and targeted women living without other adult support.
At the time of the offending the respondent was 31 years of age. He is the father of four children. Although he did not live with the mother of his children he was on good terms with her. During the period when these offences were committed he was working and earning money. Psychiatric examination revealed no mental illness. The respondent did not claim to be a person who used illicit drugs. The respondent’s record of court appearances extended back to 2001 and included a number of offences of serious criminal trespass, assault and theft.
The victim impact statements before the Court demonstrated the continuing psychological effects of the crimes, including that both women now suffer from anxiety and intense feelings of insecurity within their own homes. Additionally, V1’s brother was deeply affected.
The judge imposed a single sentence of 4 years imprisonment on the first group of offences, having used a starting point of about 6 years. He imposed a sentence of 6 years for the second group, which indicated a starting point of 9 years. He ordered the two sentences to be served cumulatively, giving a total of 10 years. A non-parole period of 6 years and 6 months was fixed.
Counsel for the Director does not point to any error of fact or approach. There is no complaint about the way the sentence was structured. Counsel submits that, having regard to the gravity and extent of the offending on each occasion, both starting points were simply too low, leading to an inadequate final head sentence and non-parole period.
The respondent argues that, although the starting point for the head sentences might have been at the lower end of the appropriate range, it was not outside that range. It is submitted that no error of process has been identified and no aspect of the matter had been overlooked by the judge. It is submitted that this is not one of the rare and exceptional cases where the Director should be granted permission to appeal.
Discussion
The respondent’s crimes were indeed grave. They were correctly viewed by the judge as two separate incursions, even though they were fairly close in point of time. They bore the common characteristics of being committed in company while armed and under disguise, and against single women who were apparently targeted and intimidated. All these factors needed to inform the sentencing. Section 10(2)(b) of the Criminal Law (Sentencing) Act 1988 requires the court to give proper effect to the need to protect the security of persons in their homes. That in both cases a woman’s home was violated demanded particular emphasis. Such an attack would inevitably lead to profound and enduring feelings of vulnerability and insecurity in the victim. Of course the second group of offences contained the additional feature of the rapes committed by the respondent. This added an extra dimension to the second group of offences. The Sentencing Act s 10(1)(f) specifically requires the court to have regard to the fact that offending is seen or heard by a child. The presence here of a child at both scenes was a matter of significance.
As mentioned, it is not suggested that the sentencing judge overlooked any of these factors; rather that all the aggravating features of the crimes were not reflected in the sentence imposed.
In his remarks on sentence the judge observed that he was not confident that the respondent enjoyed good prospects of rehabilitation. While counsel for the Director did not disagree with that statement, he argued that it left much unsaid. He submitted that the respondent’s antecedents, the lack of explanation for the offending, the fact that the respondent joined in such offending, which apparently had as its motivation a desire for monetary gain, despite his being in work, and that he was prepared to take on the added risks of returning for his sunglasses after leaving the first scene and of staying behind to rape the occupant at the second scene, showed a disturbing attitude which positively told against the hope of rehabilitation.
During the hearing of the appeal we were referred to several decisions of this Court in which crimes were committed against householders after commission of a serious criminal trespass in a home. One such matter was the recent decision of this Court in R v Bondarenko [2015] SASCFC 42 in which a sentence of 18 years imprisonment with a non-parole period of 13 years for being unlawfully on premises, breaking and entering with intent, assault occasioning actual bodily harm, five counts of rape and false imprisonment dating back to 1999 was set aside and replaced with a sentence of 15 years imprisonment with a non-parole period of 10 years. There, in re-sentencing, this Court used a starting point of 16 years which was reduced by one year on account of late pleas of guilty. In the course of its reasons, the Court examined authorities dealing with broadly similar courses of offending, in which intruders had broken into a home and committed rape or other offences against the householder. It is apparent from these and other cases which have been dealt with in this Court over the years, that such criminal incursions often demand the imposition of a lengthy term of imprisonment, commonly arrived at after employing a starting point approaching 20 years imprisonment. Of course, every case is different and each has its own intricacies and human considerations. Nonetheless, such authorities are helpful in sketching a range within which such a sentence is likely to fall.
In my view the arguments put by the Director of Public Prosecutions to the Court in this case are well made. Neither the individual sentences imposed nor their total adequately reflects the extent and degree of the criminality involved in the respondent’s offending.
I consider that the sentences imposed require the intervention of this Court for the purposes of maintaining adequate standards of sentencing and correcting a sentence which is so low as to amount to an error of principle.
In my view the single sentence fixed in relation to the first group of offences should have been at least 8 years before discount and for the second group, should have been at least 12 years before discount. Had the respondent stood for sentence in relation only to one of these incidents, then he could have expected, in either case, to be sentenced to a greater term. Had the second group stood alone a term of imprisonment in the order of 15 years would have been called for. In this case I consider starting points of 8 and 12 years are appropriate.
Using the rate of discount applied by the sentencing judge, the sentence imposed on the first group of offences becomes 5 years and 4 months and on the second group it becomes 8 years. These should be accumulated, giving a total of 13 years and 4 months. Using a slightly lesser proportion than that employed by the judge, the non-parole period becomes 8 years and 3 months. There is no occasion to further discount the sentence on account of a consideration of totality. This is the sentence I would impose.
Conclusion
In my view this Court’s intervention is required to correct the sentence imposed. Permission to appeal should be granted for that purpose and the appeal should be allowed.
I would make the following orders:
1.grant permission to appeal;
2.allow the appeal;
3.set aside the sentence imposed in the District Court;
4.in its place impose single sentences of 5 years and 4 months imprisonment in respect of the first group of offences and 8 years imprisonment in respect of the second group of offences, those sentences to be served cumulatively, giving a total head sentence of 13 years and 4 months, with a non-parole period of 8 years and 3 months;
5.direct that the sentence be deemed to have commenced (as before) on 23 October 2012.
BLUE J. I agree.
LOVELL J: I would allow the appeal. I agree with the reasons of and orders proposed by Vanstone J.