R v M, AG

Case [2013] SASCFC 39

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v M, AG

[2013] SASCFC 39

Judgment of The Court of Criminal Appeal

(The Honourable Justice Sulan, The Honourable Justice Vanstone and The Honourable Justice Peek)

24 May 2013

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

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - PRINCIPLES APPLIED BY APPELLATE COURT TO CROWN APPEALS

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - OTHER TYPES OF ORDER

The Director of Public Prosecutions sought permission to appeal against the sentence imposed on the respondent on the ground that it was manifestly inadequate - the respondent pleaded guilty to one count of aggravated serious criminal trespass in a place of residence, five counts of rape and one count of theft - the victim was the respondent’s former partner - in breach of his bail agreement not to come into contact with the victim the respondent forced the victim into her home while she was unloading her car leaving her five month old son asleep in the car - inside the house the respondent repeatedly raped the victim anally and vaginally and forced a sledgehammer handle into her vagina - a single sentence of seven years' imprisonment with a non-parole period of four years' imprisonment was imposed - whether permission to appeal should be granted - whether the sentence was manifestly inadequate - Whether the Judge erred in refusing to grant an intervention order.

Held: The sentencing Judge appears to have overlooked the brutality and seriousness of the offending and placed too much weight on the appellant's personal circumstances - this was a case in which personal and general deterrence must take precedence - the sentence was so inadequate that no specific error needed to be identified to justify the grant of permission to appeal - permission to appeal granted and appeal allowed - appellant sentenced to 13 years' imprisonment with a non-parole period of nine years' imprisonment.

There is reason to suspect that the respondent will (without intervention) commit an act of abuse against the victim in the future - an intervention order is appropriate.

Criminal Law Consolidation Act 1935 (SA) s 340; Criminal Law (Sentencing) Act 1988 (SA) s 18A, s 19(2), s 19A(3); Summary Procedure Act 1921 (SA) s 19A; Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 7, s 8, s 19, s 6, s 10, s 11, s 12, s 15, referred to.
R v Never (2003) 87 SASR 168; Everett v The Queen (1994) 181 CLR 295; R v Osenkowski (1982) 30 SASR 212; R v Hitchens (1995) 184 LSJS 333; Heuston v R (1993) 171 LSJS 479; R v Godfrey (1993) A Crim R 318; R v Tran & Tran [2011] SASCFC 153; R v Colbert [1998] SASC 6801; R v Daly [1999] SASC 428; R v…

Continue reading R v M, AG

Sign in free to access the full text

Details
AGLC
R v M, AG [2013] SASCFC 39
Case
[2013] SASCFC 39
Decision Date

CaseChat Overview and Summary

The Director of Public Prosecutions sought permission to appeal against a sentence imposed on the respondent, who had pleaded guilty to aggravated serious criminal trespass, five counts of rape, and one count of theft. The offences involved the respondent forcing his way into his former partner's home, where he repeatedly raped her and forced a sledgehammer handle into her vagina, all while their infant son was asleep in the car outside. The Director argued that the sentence of seven years' imprisonment with a non-parole period of four years was manifestly inadequate. The appeal was heard by Sulan, Vanstone, and Peek JJ of the Supreme Court of South Australia.

The central legal issues before the Court were whether permission to appeal against the sentence should be granted on the ground of manifest inadequacy, and whether the sentencing judge had erred in refusing to grant an intervention order. The Court was required to consider the seriousness of the offending, the application of principles of personal and general deterrence, and the appropriate weight to be given to the respondent's personal circumstances in sentencing.

The Court reasoned that the sentencing judge had overlooked the brutality and seriousness of the offences, placing too much emphasis on the respondent's personal circumstances. It was held that in cases of this nature, personal and general deterrence must take precedence. The Court found the original sentence to be so inadequate that no specific error needed to be identified to justify granting permission to appeal. The Court also determined that an intervention order was appropriate, given the likelihood of future abuse against the victim.

Consequently, permission to appeal was granted, and the appeal was allowed. The original sentence was set aside and substituted with a sentence of 13 years' imprisonment, with a non-parole period of nine years. An intervention order was also made, prohibiting the respondent from approaching or contacting the victim, with specific conditions and a prohibition on firearm possession.

Orders

Orders of the court

Held: The sentencing Judge appears to have overlooked the brutality and seriousness of the offending and placed too much weight on the appellant's personal circumstances - this was a case in which personal and general deterrence must take precedence - the sentence was so inadequate that no specific error needed to be identified to justify the grant of permission to appeal - permission to appeal granted and appeal allowed - appellant sentenced to 13 years' imprisonment with a non-parole period of nine years' imprisonment.

There is reason to suspect that the respondent will (without intervention) commit an act of abuse against the victim in the future - an intervention order is appropriate.

Background

Background to the litigation

The Director appeals on the grounds that the head sentence and non parole period are manifestly inadequate, and that the sentencing Judge erred in refusing to grant an intervention order. Background It is necessary to refer to the history of the defendant’s relationship with M. When the defendant was aged 40, he began a relationship with M, who is 20 years his junior. In April 2010, M discovered that she was pregnant to the defendant. The defendant and M began living together. Their son was born on 10 December 2010. Following the birth, the relationship deteriorated. In the early hours of 13 March 2011, the defendant and M were staying at an hotel. When M indicated she did not want to have sex with the defendant, the defendant removed M’s top and bra and dragged her by the hair out of the pair’s hotel room, locking her outside. He also damaged M’s car. M complained to police. On 27 March 2011, the defendant was arrested in relation to his conduct on 13 March 2011. He was granted bail on the condition that he not contact M or attend her home. The following day, 28 March 2011, the defendant breached his bail agreement by contacting M by text message. On 2 April 2011, the defendant again breached his bail agreement by banging on the windows of M’s home, and by threatening her. M complained to police. The defendant was arrested. On 4 April 2011, the defendant was granted bail in relation to his conduct on 28 March 2011 and 4 April 2011. That agreement contained the same terms as the earlier bail conditions. On 10 April 2011, the defendant attended at M’s home to talk about their son. In doing so he committed two breaches of bail by contacting M on the telephone and attending at her home. While at M’s home, the defendant kicked in the rear wooden door. M complained to the police, and on 13 April 2011 the defendant was arrested for the offences of 10 April 2011. Again he was released on bail. On 28 April 2011, the defendant breached his bail agreements by approaching M outside the Family Court. On the night of 29 April 2011, M arrived at her home at about 9:30. She left her and the defendant’s five month old son in her car asleep while she unloaded the car. When M left the house to retrieve her baby from the car she realised that the defendant was there. The defendant took two telephones from her and pushed her into the house. That conduct is the subject of the offence of aggravated serious criminal trespass in a place of residence. M had left a sledgehammer handle inside the house, for her own protection. The defendant threatened her with the handle and ordered her to remove her clothes. When she refused, he forcibly removed her clothing and pushed her to the floor. The defendant said, “I’m going to fuck you with this”, referring to the sledgehammer handle. The defendant went to the kitchen where he sprayed the handle with cooking oil. The defendant returned and there was a scuffle. The defendant threw M to the floor and forced her to perform fellatio on him. That conduct is the first count of rape. The defendant then raped M vaginally, being the second count of rape. The defendant raped M anally, the third count of rape. The defendant then forced M to the floor and forced the sledgehammer into her vagina, causing her agonising pain. That conduct is the fourth count of rape. The defendant ordered M into her bedroom and raped her vaginally again. That conduct is the fifth count of rape.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The Director submits that the Court should set a period, in which the defendant cannot apply for a revocation or variation of the order, of five years. This is unnecessary. The effect of ss 11 and 15 of the Act is that the order will continue until such time as it is revoked. The defendant cannot make an application for revocation or variation for 12 months. Once that period is passed, the defendant will be free to make an application, although the order remains until the application is granted. Though it is a matter for a subsequent court, these reasons and the seriousness of the defendant’s offending should weigh heavily on any consideration of a variation or revocation application.Conclusion I would grant the Director permission to appeal. I would allow the appeal. The sentence imposed in the District Court is set aside. In substitution, the defendant is sentenced to 13 years’ imprisonment, with a non-parole period of nine years’ imprisonment, the sentence and non-parole period to commence on 3 May 2011, being the date upon which the respondent was taken into custody. I would make an intervention order in the following terms:1the defendant is prohibited from being on premises at which [M] resides or works;2 the defendant is prohibited from approaching within 50 metres of [M];3the defendant is prohibited from directly or indirectly contacting, harassing, threatening or intimidating [M] for any reason including attempting to contact or see [D].4condition 3 is subject to the proviso that the defendant may contact M through a legal practitioner in relation to Family Court proceedings.5any firearm in the possession of the defendant and any licence or permit held by the defendant authorising possession of a firearm must be surrendered to the Registrar of Firearms; and6while this intervention order remains in force, and licence or permit authorising the defendant to possess a firearm is suspended, the defendant is disqualified from holding or obtaining a licence or permit authorising possession of a firearm, and the defendant is prohibited from possessing a firearm in the course of his employment. VANSTONE J: I agree with the orders proposed by Sulan J and with the reasons he has written. PEEK J: I agree with the orders proposed by Sulan J and with his reasons.

Ratio Decidendi

Legal Principle Established

It is trite to say that the fact the defendant used a weapon in the offending is an aggravating feature. It is not uncommon for those who commit rape to threaten their victims.[9] The defendant threatened M with the sledgehammer handle, and told her what he was going to do with it. The threat alone would have been terrifying. Having forced M to perform fellatio on him, and having raped M vaginally and anally, the defendant carried out his threat and forced the sledgehammer into M’s vagina. Following the attack, doctors recommended to M that she be examined to assess whether there had been any internal injuries. She has been too afraid to do so. M was too distressed to tell friends or family what had happened.[9] See R v Colbert [1998] SASC 6801; R v Daly [1999] SASC 428.Other considerations The fact a complainant of rape was once in a sexual relationship with the offender does not mitigate the seriousness of the offence.[10] There is a need to have particular regard to general deterrence, where the crime is premeditated and the offending occurs following the breakdown of a relationship. Martin J’s observations in R v Wiskich are apposite:[11]The respondent’s crime was not a crime of passion in the sense that it was committed on impulse in the heat of the moment during a confrontation in which intense passions were suddenly aroused. The background circumstances preceding this crime involved the commonly encountered situation of a breakdown of a relationship arousing emotions and jealousy to the point of obsession. Unfortunately, crimes of violence are often preceded by such circumstances. Potential victims of such violence are frequently vulnerable to attack and are entitled to expect the criminal courts to impose sentences and fix non-parole periods that will act as a deterrent to others in similar situations. [10] R v Edwards [2011] SASC 33, [15]; see DPP v Cowey (1995) 182 LSJS 345, 346.[11] (2000) 207 LSJS 431, 460. M was vulnerable to attack. The defendant had attended at her home on two previous occasions and had been violent. M had taken steps to protect herself from the defendant. She complained to the police on three occasions prior to the attack. For protection, she had a sledgehammer handle near the rear door of her home. The defendant ignored his bail agreements and attended at M’s home to attack her. The defendant threatened M and repeatedly raped her in the most vicious manner. The Director submits that, by considering it appropriate to make each sentence for each rape wholly concurrent, the sentencing Judge imposed a sentence that failed to reflect an adequate punishment for each offence. It is sufficient to observe that the fact a number of counts of rape occurred within a short period of each other is relevant to ascertaining the total sentence to be imposed. As King CJ said in Heuston v R:[12]There is also the factor that this conduct for which the appellant was sentenced involved five separate acts. True it is that they all occurred within a short space of time but, nevertheless, there were repeated acts of sexual abuse on this unfortunate lady. [12] (1993) 171 LSJS 479, 480.