R v McLintock No. Sccrm-98-54 Judgment No. S6746

[1998] SASC 6746

R  v  McLINTOCK

Court of Criminal Appeal:  Doyle CJ, Williams and Bleby JJ

Bleby J

The appellant appeals against the sentence imposed by a Judge of the District Court on 19 February 1998.  The appellant had pleaded guilty to three counts of rape, for which the maximum penalty is life imprisonment (s48 Criminal Law Consolidation Act 1936).  He was sentenced on all three counts to imprisonment for 13 years and 6 months.  The learned sentencing judge revoked the suspension of a previous sentence, to which further reference will be made, on account of the fact that the appellant had breached a good behaviour bond by committing the present offences.  The sentence to be served was a period of two months imprisonment.  The total head sentence was therefore 13 years and 8 months.  The learned sentencing judge fixed a non‑parole period of 10 years.  Both the head sentence and non‑parole period were to commence from 27 May 1997, being the date on which he was first taken into custody for these offences.

The first of the victims was the appellant’s estranged wife.  On 16 May 1997 he was convicted in the Magistrates’ Court of common assault, assault occasioning actual bodily harm and of threatening to cause harm.  The victims of these offences, which occurred on 6 April 1997, were the appellant’s wife and a person whom he alleged to be her lover.  That resulted in the suspended sentence of imprisonment of 2 months upon the appellant entering into a good behaviour bond for a period of 18 months.  On the day of his conviction he telephoned his wife to apologise for the assault, and on the following Monday (19 May) met her at a motel room where the two spent the night and had consensual intercourse.  Later on the next day they spent some further time together looking at potential accommodation for the appellant, and the appellant had a meal that evening with his wife at her residence.  Relations during the evening appear to have been quite cordial, apart from the appellant’s wife expressing some impatience when she began feeling tired, and he appeared reluctant to want to leave.

After she had bathed and dressed for bed, and with no apparent warning, the appellant threatened to kill her with a kitchen knife and then to kill himself.  He forced his wife onto her bed, removed her clothes and proceeded to have vaginal intercourse with her.  During all this time she was pleading with him to stop, and was crying.  The appellant remained in his wife’s bedroom with the knife close by and was extremely agitated.  His wife was too scared to make any move to escape or to cause any further annoyance to the appellant.  He seems to have remained awake all night, and eventually left some time after 9.00am the next morning.

The second and third offences occurred during the same night and against the same victim, this time a friend of the appellant and his wife.  After separating from his wife, the appellant started telephoning this friend more frequently, and she and another friend had, at his request, been to court with him when he was sentenced on the assault charge.  She felt uncomfortable about his contacts but did not know how to get rid of him or to refuse his requests.

Six days after the rape of his wife, the appellant was avoiding the police.  He called at the home of this friend and had a conversation with her during the course of which he said that he wanted to get rid of his wife.  He described several possible ways he was thinking of doing this, and where he would go to avoid detection.  She became frightened, and again without warning the appellant grabbed her by the throat, forced her to the lounge‑room floor, and tied her arms together.  The victim was frightened, and was aware of the presence of a knife and rope.  He later forced her into her bedroom where he rebound her arms, tied her legs together and gagged her with a tea‑towel.  He undressed himself, made various sexual advances towards her, including placing his fingers in her vagina.  He required her to undress, untying her for that purpose, and proceeded to have vaginal intercourse with her against her will.  After some further conversation the appellant went to sleep in the victim’s bed but with his right arm across her chest so that she could not get away.  Throughout the night the victim remained terrified of what the appellant would do if she sought to escape.  Early next morning he made further sexual advances, forced her to assist him in maintaining an erection, and raped her once more.  He then forced her to accompany him in her car where he kept her hostage for some hours until eventually leaving her near her house and then driving himself off in her car.

These descriptions of the events of both occasions are necessarily abbreviated, but I record that the appellant kept both his victims in a state of subjection, terror and great fear for their safety for periods of approximately 11 and 12 hours respectively.  Both occasions involved episodes of physical violence and threats, including the use of a knife.  The rapes took place in the victims’ own homes.  Both, in good faith, had either invited him or allowed him to come in.  Both victims trusted him.  He grossly abused that trust.

The learned sentencing judge described all three rapes as “vicious and terrifying”.  They had a marked effect on the appellant’s victims.  His wife now has difficulty in sleeping and eating.  She cannot sleep alone in her house, and her son has given up his flat to remain at home with her.  She is being counselled but remains terrified that the appellant, if released, will return to harm her.  The second victim now also lives interstate with her sons and their families as she cannot face living on her own.  She has little or no social life.  She has resigned from her job and now receives a disability pension.  She too has been receiving counselling.

The appellant was sentenced on the basis that he was aged 65.  The learned sentencing judge seems to have taken that information from the psychologist’s report, to which further reference will be made.  Both the police record and his wife’s statement give his date of birth as 28 July 1934, which means that at the time of sentencing he was aged 63, and when first taken into custody was aged 62.  The deposition of the other victim tends to support this lower age.  I proceed on the basis of the 1934 birth date.  He became domiciled in South Australia in 1968, having come from New Zealand, where he had a very unhappy childhood.  He had been in foster care after the age of 7.  He ceased schooling at the age of 13, but in New Zealand had completed an apprenticeship as a painter and paper‑hanger.  He retired from work in 1994.

He had many convictions, mainly for burglary, theft and assault in New Zealand, including burglary in 1971.  The last of the New Zealand convictions was for assault in 1976 and wilful damage in 1977, presumably when he had returned there for some reason.  Apart from the conviction relating to the assault on his wife, the subject of the suspended sentence, he had no convictions at all in Australia.

He was shown to have had a heart condition of some years standing.  In January 1997 he underwent an operation for prostate cancer which resulted in depression and suicidal thoughts.  This occurred at about the time of the breakup of his turbulent and short‑lived marriage (his third) to the first victim.  The learned sentencing judge had before him a comprehensive psychological report from Dr White in which it was suggested that the appellant was prone to experiencing feelings of rejection, suspiciousness, hostility and unstable moods.  The psychologist suggested that he had carried out the rapes because they gave him a feeling of control over his victims, the second and third rapes being more of an aggressive response towards his former wife than an offence targeted at the victim in question.  She, as a friend, had become a substitute for his wife so far as his anger, aggression and desire for control were concerned.  Dr White considered that his psychological problems were personality‑based, and stemmed largely from his abused early childhood.  As such, there was not much prospect of his clinical features responding to therapy, at least in the short term.

The appellant had been committed for trial on 30 July 1997.  He pleaded guilty in the District Court on 19 November 1997 after an unsuccessful application for separate trials and after the withdrawal of a number of other lesser charges on the same information.  There was some evidence of contrition, remorse and shame for what he had done, expressed to Dr White, through his counsel and in letters to his victims.  The learned sentencing judge gave some discount for his plea, but “not as great a discount as would have been the case if genuine contrition and remorse had caused (him) to plead guilty at the earliest opportunity”.  But for his plea the learned sentencing judge would have sentenced him to imprisonment for 15 years.  He therefore allowed a ten percent discount for the plea.

The appellant could point to no particular factor which the learned sentencing judge failed to take into account.  Indeed, his sentencing remarks reflected an earnest consideration of all that had been put to him concerning the fixing of the appellant’s sentence.

The rapes were terrifying and constituted a serious abuse of his victims.  They required a substantial sentence of imprisonment.  Whilst there is no single factor that the learned sentencing judge overlooked, the question still arises as to whether the sentence imposed was manifestly excessive.  The appellant argued that the learned sentencing judge’s starting point of 15 years was too high, that insufficient discount was given for his plea, that the sentence failed to make allowance for the appellant’s personal circumstances, and that in any event the non‑parole period was manifestly excessive.

I begin by reminding myself that different sentencing judges will inevitably arrive at different sentences, and that merely because the final figure fixed by any or all of the members of this Court may differ from that of the sentencing judge, does not mean that the appeal should necessarily be allowed.  It must be shown that the penalty is outside the range that could properly and reasonably be imposed by any sentencing judge.  I also remind myself that within the process of arriving at an appropriate sentence, different judges may have different starting points and may give different weightings or discounts for particular factors.  The fact that my starting point or weightings may be different from that of the sentencing judge does not matter, and will not necessarily result in identification of error.  What matters, for present purposes, is the final figure and whether it is manifestly excessive, not so much the route by which the sentencing judge arrived at the figure.

I take as my starting point the fact that these are serious breaches of s48 of the Criminal Law Consolidation Act.  Apart from the very recent offences against his wife, the appellant had had no convictions recorded against him for a period in excess of 20 years, and had no prior convictions at all for rape or any sexual offences.  But for the assault on his wife, given the nature and timing of the appellant’s previous offences, I would have treated these as if they were first offences.  But the fact cannot be ignored that all three offences were committed within ten days of the appellant being placed on the good behaviour bond for the assault on his wife, and that the later two offences were committed whilst the appellant knew that he was being sought by police for the first one.

In an exercise such as this, one must begin by assigning notional sentences to each count: R v Major (Unreported, CCA, 20 March 1998, Judgment No S6569) per Doyle CJ at page 2 and Olsson J at pages 8-9.  The two incidents were quite separate and distinct.  I can see no justification for treating both incidents as arising out of one course of conduct.  There is therefore no justification in treating the notional sentences thus fixed as concurrent.  See R v Dorning (1981) 27 SASR 481 at 482-483. On the other hand, the second incident, encompassing the second and third counts, can properly be said to constitute a single course of conduct, and may be notionally treated as one offence, or the individual sentences treated as concurrent.

My starting point would be approximately 7 years imprisonment on Count 1 and, because of its extended and aggravated nature, approximately 8 years on Counts 2 and 3 taken together.  The cumulative starting point therefore approximates 15 years.  That is not to say that others might not legitimately take a higher or a lower starting point.  It happens that my approximation coincides with the actual starting point of the learned sentencing judge.  There is plainly a permissible range.

I turn to consider the appellant’s plea of guilty.  It was a late plea, and was entered only after a ruling made against separate trials.  It presents a ring of pragmatism and of facing the inevitable, and must remove much of the gloss on any expression of contrition or remorse, however and whenever it might have been expressed.  However, it must be recognised that even a late plea of guilty relieves the victims, particularly in offences of this nature, of the extraordinary burden of having publicly to revisit what must be one of the most traumatic and degrading experiences that any woman can face.  On account of his plea of guilty I would reduce my notional sentence of about 15 years to something in the vicinity of 13 years.  Others may differ, up or down, as did the learned sentencing judge.  That in itself does not demonstrate error.  Many factors will influence the exercise of the discretion in arriving at a notional discount for a plea of guilty, and the range of that discount can vary widely, depending on the assessment of all the factors which surround such a plea.

The next step is to stand back and consider the result in the light of the totality principle - whether the total sentence is so disproportionate to the overall offending as to be unduly crushing.  See R v Major (supra) per Doyle CJ at page 2; Olsson J at page 9.  Without any particular mitigating personal circumstances, I would have no hesitation in saying, in a case of this nature, that the notional sentence is appropriate and should not be discounted.  What about the appellant’s age and state of health?  Is it a crushing sentence to have hanging over him until the age of 75 (if he survives to that age)?  I hasten to add that this would simply not be a consideration if he were a fit twenty-five year old.

I am not deterred by the fact that the appellant may possibly die in custody.  That is a risk that faces any prisoner to a greater or less extent, and is not a factor which should enter the sentencing process.  However, the fact that the appellant may be said to be entering the twilight of his life, coupled with the diminishing risk of re‑offending with advancing age and physical deterioration, especially where that may be aggravated by illness, is, I believe, a relevant mitigating factor.

I find this aspect particularly difficult to balance against the obvious need to condemn in the strongest terms offensive conduct of this nature, and the need to maintain the necessary element of deterrence, both personally in respect of the appellant and as a warning to the community at large.  It is another area where different judges may legitimately take different views.  On the one hand, I can justify some reduction on this account, but I see powerful public interest considerations which would tend to minimise any such reduction almost to the point of elimination, at least in relation to the head sentence.

In the end I consider that in the case of this appellant, any such considerations are better reflected in the determination of the appropriate non‑parole period rather than in the head sentence.  That is not to say that in respect of some other offences, where deterrence is of less significance, such consideration should not affect the head sentence.

So I arrive at a notional head sentence of something in the vicinity of 13 years.  It could be more; it could be less.  It will be apparent that the process I have adopted allows for the possibility of many variables at each stage.  Just because another judge may assess those variables in a different way does not demonstrate error.  What is important is whether the final result demonstrates relevant error.  The process can also demonstrate that there will be a legitimate range within which the sentence may fall before it can be described as manifestly excessive.  I could have legitimately begun with a higher starting point, have allowed a lower discount for his plea, and arrived somewhere closer to the conclusion of the learned sentencing judge.  In this case, given the nature and extent of the variables, I cannot say that the learned sentencing judge’s assessment of the head sentence is outside the permissible range, and I would not disturb that aspect of the sentence.

The breach of the good behaviour bond by the commission of these offences amply justified the revocation of the order for suspension of the earlier sentence of two months.  The total period of the head sentence must therefore remain at 13 years and 8 months.

The learned sentencing judge fixed a non‑parole period of 10 years - approximately 73% of the head sentence.  He did not give any reasons for that figure.  I do not regard that fact as a defect in the sentencing process, as to a large extent His Honour’s reasons can be found in the sentencing remarks.  In the circumstances of this case I regard that assessment as high, particularly as I regard it as appropriate in the case of this offence and of this offender, to reflect in the non‑parole period, rather than in the head sentence, some consideration of his age and state of health.  Largely for these reasons I regard the non‑parole period as excessive and justifying interference by this Court.  I would fix the non‑parole period at 8 years.

Accordingly, in my opinion, the appeal should be allowed, the head sentence of 13 years and 8 months should be confirmed and the non‑parole period reduced to a period of 8 years.  Both the head sentence and the non‑parole period should commence from 27 May 1997, being the day on which the appellant was taken into custody in respect of these offences.

Doyle CJ

In my opinion the appeal should be allowed, to the extent only of setting aside the non‑parole period fixed by the District Court and substituting a non‑parole period of 8 years.  I agree with the reasons of Bleby J for so concluding.

I agree with the orders proposed by Bleby J.

Williams J

I agree with the orders proposed by Bleby J for the reasons which he has given.