R v Measures No. Sccrm-02-138

[2002] SASC 229

R v MEASURES
[2002] SASC 229

Application for Leave to Appeal against Sentence

1. Gray J        This is an application for leave to appeal against a sentence imposed for a number of offences including assault occasioning actual bodily harm and rape.  The matter has a long and complicated history. Pleas of guilty were entered to some counts. A number of other counts proceeded to trial. The jury acquitted the applicant of some charges and found him guilty of others.

2. The learned sentencing judge’s remarks included:

   “Jason Michael Measures, you have indicated to me and to the examining psychiatrist and psychologist that you now have an insight into your problems and that your health and attitudes have improved markedly since you have been in custody and following the cessation of the use of drugs. You have described drugs to the psychologist as ‘evil’ and observed that they destroy your life. You told the psychologist that when addicted you are a violent person and that you perceive your personality when addicted as ‘disgusting, dishonest and violent’. The psychologist believes that your incarceration on remand has served a useful purpose in acting like a circuit breaker for your self destructive cycle. You have used your time productively while in custody and the psychologist has expressed the view that you are actively trying to rebuild your life by participating in rehabilitation.

   ...

   Jason Michael Measures, as to whether you are truly contrite for your conduct, I take into account what you have told me and the examining practitioners. I also take into account your efforts directed at rehabilitation since you have been in custody. However, I must have regard to your entire conduct, your evidence and all other material that has been placed before me in considering whether you are truly contrite for the violence that you perpetrated and the misery that you caused to Ms A and Ms B.

   As I have indicated, the jury and I have rejected your evidence in respect of a number of matters.  Throughout your evidence at trial with respect to Ms B, and through your evidence during the disputed facts hearing concerning Ms A, you have consistently endeavoured to minimise the degree of your violence. You have also attempted to convey the impression that, generally speaking, in addition to the impact of drugs your violence was triggered off by conduct on the part of Ms A or Ms B.  Your attempts to implicate Ms A and Ms B in this manner, appear to me to reflect the attitude that you displayed on occasions during your violence when you made statements to the effect of ‘Look what you made me do’.

   You also displayed a disturbing attitude throughout your conduct by your violence and your repeated reference to both women as sluts. As I have said you displayed jealousy, possessiveness and the need to dominate. I am satisfied that your consumption of drugs does not provide a full explanation for your state of mind with respect to the women and your willingness to engage in prolonged violence against them when you became angry. I bear in mind Dr Raeside’s evidence about these matters.

   Jason Michael Measures, I am satisfied that your pleas of guilty were not borne out of a sense of true contrition but were, predominantly, a recognition of the strength of the case against you with respect to various counts. I am satisfied that you are not truly contrite for your conduct. You have a degree of sympathy for Ms A and Ms B, but your primary concern is the situation in which you find yourself.  Your conduct and degree of new insight demonstrates that your prospects of long-term rehabilitation are relatively good, but notwithstanding those prospects I have reached the view that personal deterrence remains a significant factor.”

3. A disputed facts hearing occurred during the sentencing process. The dispute related to the circumstances of the offending, the applicant’s mental state and his alleged contrition. The judge made findings adverse to the applicant.

4. The applicant has filed an extensive list of complaints. However their effect can be briefly summarised. The sentencing judge failed to have adequate regard to the evidence of Dr Raeside on the issue of contrition. Accordingly his view that the applicant lacked true contrition was incorrect. This in turn affected the fixing of the head sentence and the non-parole period. It also impacted upon the reduction allowed for the pleas of guilty.

5. The judge took into account the views of Dr Raeside. The judge had regard to all relevant considerations. It has not been demonstrated that the judge failed to have regard to any relevant consideration or that he had regard to irrelevant consideration. No error of law has been identified.

6. A further complaint related to the judge’s rejection of the applicant’s evidence and his acceptance of the evidence of Ms A and Ms B.  A number of  detailed complaints were made in regard to particular aspects of the evidence.  At best there is a suggestion that the judge erred in his discretionary finding. There is no substance to this complaint.  No error has been identified .

7. Finally it was contended that it was arguable that the sentence imposed was manifestly excessive.  Given the criminal antecedents of the applicant and the gravity of the crimes this contention is also without substance. 

8. Leave to appeal is refused on all grounds.

   LIST OF CITATIONS AS THEY APPEAR IN JUDGMENT