R v Nedza

[2013] SASCFC 142

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v NEDZA

[2013] SASCFC 142

Judgment of The Court of Criminal Appeal

(The Honourable Justice Gray, The Honourable Justice Stanley and The Honourable Justice Nicholson)

18 December 2013

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

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT - GENERALLY

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - OTHER FACTORS - OFFENCE COMMITTED WHILE ON BAIL, PROBATION OR PAROLE

This is an application by the Director of Public Prosecutions for permission to appeal against sentence.

On 8 February 2010, the defendant attended the complainant’s home, threatened the complainant with a knife, assaulted the complainant repeatedly, committed two acts of anal rape against the complainant, threatened the complainant’s daughters and parents, and caused the complainant to swallow petrol.  Following the defendant’s apprehension, the complainant received telephone calls from the defendant’s sister who communicated the defendant’s offer to pay the complainant money if she agreed to drop the charges.

The defendant pleaded guilty on the morning of trial to two counts of rape, one count of creating a risk of harm and one count of attempting to dissuade a witness.  The defendant also pleaded guilty to summary charges of failing to comply with a bail agreement and failing to comply with a restraining order imposed following the defendant’s arrest in relation to earlier violent offending against the same complainant.  Following his pleas of guilty, the defendant unsuccessfully applied to withdraw those pleas, asserting that issues of mental incompetence arose and that he had received inadequate legal advice.

The defendant was sentenced to a total term of imprisonment of 10 years for all offences, with a non-parole period of five years and six months, to be served concurrently with a sentence of six months’ imprisonment which had been imposed in respect of earlier violent offending against the same complainant and her mother.

Whether the head sentence and the non-parole period were manifestly inadequate and failed to reflect the seriousness of the offending and the need for general and personal deterrence.  Whether the Judge failed to have any or sufficient regard to the defendant’s alleged denials of wrongdoing when giving evidence on an application to vacate his pleas of guilty.  Whether the Judge erred in making the sentence concurrent with the sentence of six months’ imprisonment imposed in relation to the earlier offending.

Held per Gray and Nicholson JJ (Stanley J agreeing) (granting permission to appeal and allowing the appeal):

(1)     The sentence imposed was manifestly inadequate having regard to the circumstances of aggravation (at [45]-[47], [99]). 

(2)     The sentence did not adequately address the need for general and personal deterrence (at [47], [100]).

(3) The defendant is resentenced to the one term of imprisonment pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA) of 15 years’ imprisonment. A non-parole period of 10 years is fixed. The sentence is ordered to be served cumulatively upon the sentence of six months’ imprisonment imposed in respect of the earlier offending (at [48]-[50], [108]-[110]).

Criminal Law Consolidation Act 1935 (SA) s 29(3), s 48(1) and s 244(3); Bail Act 1985 (SA) s 17; Domestic Violence Act 1994 (SA) s 15(1); Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
Everett v The Queen (1994) 181 CLR 295; The Queen v Osenkowski (1982) 30 SASR 212; R v Nemer (2003) 87 SASR 168; R v Wiskich (2000) 207 LSJS 431; R v McMutrie (2002) 83 SASR 261; R v Parisi (2003) 86 SASR 183; R v M, AG (2013) 116 SASR 219, considered.

R v NEDZA
[2013] SASCFC 142

Court of Criminal Appeal:       Gray, Stanley and Nicholson JJ

GRAY J.

1. This is an application by the Director of Public Prosecutions for permission to appeal against sentence.

2. The defendant and respondent, Piotr Nedza, pleaded guilty in the District Court on 22 February 2011, the morning of trial, to two counts of rape, one count of creating a risk of harm and one count of attempting to dissuade a witness.  The offences of rape each carry a maximum penalty of life imprisonment.[1]  The offence of creating a risk of harm carries a maximum penalty of five years’ imprisonment.[2]  The offence of attempting to dissuade a witness carries a maximum penalty of seven years’ imprisonment.[3]  In addition, the defendant pleaded guilty to summary charges of contravening a term of a bail agreement[4] and contravening a restraining order,[5] both of which carry maximum terms of imprisonment of two years. 

   [1]    Criminal Law Consolidation Act 1935 (SA) section 48(1).

   [2]    Criminal Law Consolidation Act section 29(3).

   [3]    Criminal Law Consolidation Act section 244(3).

   [4]    Bail Act 1985 (SA) section 17.

   [5]    Domestic Violence Act 1994 (SA) section 15(1).

3. The defendant was sentenced on 12 September 2013. In relation to the two counts of rape and the count of creating a risk of harm, the Judge imposed the one sentence of imprisonment pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA) of nine years and six months. In relation to the offence of attempting to dissuade a witness, the Judge imposed a sentence of imprisonment of three months. In relation to the offences of contravening a term of a bail agreement and contravening a restraining order, the Judge imposed the one sentence of imprisonment of three months. All sentences were ordered to be served cumulatively, leading to a total term of imprisonment of 10 years. The Judge fixed a non-parole period of five years and six months. The sentence was backdated to when the defendant was taken into custody.

4. The overall sentence was ordered to be served concurrently with a sentence of six months’ imprisonment which had been imposed in the Magistrates Court on 3 September 2010 in respect of a different offence.  The relevance of this charge is discussed later in these reasons.

5. The central argument advanced by the Director on the appeal was that both the head sentence and the non-parole period were so low as to be manifestly inadequate.  In particular, it was submitted that the sentence failed to reflect the seriousness of the offending and the need for general and personal deterrence.  The Director also contended that the Judge had failed to have any or sufficient regard to the defendant’s denials of wrongdoing when giving evidence on an application to vacate his pleas of guilty.  The Director finally contended that the Judge erred in making the head sentence and the non-parole period concurrent with the sentence earlier imposed by the Magistrate, which related to violent offending against the same victim.

6. The defendant submitted that no error had been shown on the part of the Judge and that the sentence was within the range of appropriate sentences for the offending.  It was accepted that the Judge had shown a measure of mercy towards the defendant, but it was said that this was entirely appropriate in the circumstances. 

   The Facts

7. The defendant was born in Poland in 1972.  He was one of ten children and spent his childhood in Poland.  Several of his siblings settled in Australia and in 1997 he visited his family in Australia.  While in Australia, he formed a relationship that continued for eight years.  He has two sons by that relationship.  Following the breakdown of that relationship, the defendant entered into a relationship with the victim of the present offending.  This relationship with the complainant commenced in 2006 and continued until 2009.  There is one child of the relationship, a daughter.  The complainant had two older children, a daughter and a son, from an earlier relationship.  The defendant claimed that his relationship with the complainant ended because of his poor relations with the complainant’s parents. 

8. On 8 January 2008, the defendant was charged with aggravated assault of the present complainant.  The matter came before the Magistrates Court on 17 April 2008 and the defendant was released without conviction on a 12 month good behaviour bond. 

9. On 14 December 2009, the defendant again attacked the complainant.  In a fit of anger, the defendant grabbed the complainant by her hair, causing them both to fall to the ground.  The defendant then held the complainant’s head and pushed it against the floor a number of times.  During the assault, the defendant spat on the complainant.  As a consequence of this assault, the complainant has been left with a degree of stress and feelings of fear. 

10. On the same occasion, the defendant assaulted the complainant’s mother, striking her to the side of the head, requiring treatment from ambulance officers.  She was taken to hospital for observation.  Fortunately, her injuries healed, although she suffered for some time from headaches, ear pain and stress. 

11. Following his arrest in respect of the incident on 14 December 2009, the defendant was released on bail and also was subjected to a domestic violence restraining order.  The offending the subject of this appeal involved conduct that breached the defendant’s terms of bail and the domestic violence restraining order. 

12. The defendant was charged with aggravated assault and on 3 September 2010 he was convicted following a trial and an order for an immediate term of imprisonment of six months was made.  The defendant was also disqualified from holding a firearms license until further order. 

13. The conduct leading to the offences of rape and creating a risk of harm occurred on 8 February 2010.  The complainant’s son had been admitted to the Women’s and Children’s Hospital.  At about 6.30 pm, the complainant received an abusive telephone call from the defendant while she was at home.  The complainant then attended the hospital with her parents.  At about 9.20 pm, she returned home.  The complainant’s older daughter, as well as the baby of the defendant and the complainant, were at home with the complainant.  The complainant noticed that she had 13 missed calls from the defendant.  She became aware that the defendant was in her home.  Apparently she had forgotten to lock the back door.  The defendant asked where the complainant had been and she informed him that she had been at the hospital with her parents visiting her son.  The defendant then struck her across the face with his fist, pulled a knife from the rear pocket of his trousers and brandished the knife at her.  She recognised the knife as having come from his home.  The complainant noticed that he had been drinking.  His face was red and he was sweating.  She thought that his eyes looked like he had taken drugs.

14. The defendant said, “This is the end, you are not going to throw me away again”.  He struck the complainant on the side of her head with his fist.  He said, “You are not going to lie to me, I am going to finish it all … today first you then [your daughter] then myself”.  He again punched the complainant to the face, causing her to fall.  He put the knife against her throat and said, “Do you think I’m fucking joking?” and said, “I want to fuck you.  Take your pants off or I’ll take them off for you”.  While the complainant was taking her pants off, the defendant was also taking his pants off.  As he did so, a cigarette lighter fell from his pocket.  He said words to the effect that, “This is to set you alight later”.

15. The defendant said, “I’m going to fuck you like a whore, only whores get fucked up the arse.”  He told the complainant to lay down, and she lay face down on the couch.  The defendant then cut through the back of her t-shirt and brassiere using the knife and said, “I am going to fuck you like a whore. You’re a slut.”  The defendant then anally raped the complainant.

16. The defendant went to the kitchen and brought back a cordless telephone.  He told the complainant to call her parents and to get them to come over to the house.  The defendant said that he wanted her parents to come over so that they could watch her die and said that he would then “finish them off”.

17. The defendant then pushed the complainant into the kitchen and made her drink alcohol.  They then walked down the hallway and he pushed her into a bathroom.  She could feel the knife between her shoulder blades.  He told her to stand in the corner while he urinated.  He then told her to flush the toilet, which she did.  They then walked to the bedroom.

18. After a conversation in the bedroom the defendant stabbed the bed five or six times with the knife and stabbed the pillow on which the complainant was lying.  She had to move her head to avoid being stabbed.  The defendant said, “Don’t move your head because you’re going to get it anyway.”  The defendant then turned to their baby and pressed the knife against her cheek.

19. The defendant then left the bedroom and threatened to engage in intercourse with the complainant’s older daughter before demanding that the complainant go into the lounge room and lay down on the sofa.  The defendant then said that he had made a will in which he left everything to his boys.  He then sat down on the couch and said, “What the fuck am I doing? I can’t do this, my boys will cry.  They’ll miss me, they love me, but I can do it to you.”  The defendant then anally raped the complainant again before getting dressed and telling the complainant to do the same.

20. The defendant told the complainant to go to the kitchen and finish the alcoholic drink.  He then cut a section of a plastic drink bottle and placed a tissue inside the neck of the bottle, so as to fashion a funnel. He told the complainant to go outside.  He told her to kneel.  He picked up a bucket containing petrol.  He gave the funnel to her and she put it in her mouth.   The defendant grabbed the bucket and said, “Make sure you swallow.”  He then poured the petrol into the funnel.  The complainant was able to partially redirect the flow of petrol out of her mouth, although she swallowed some of the petrol.  The defendant then said, “Are you stupid?  What are you swallowing it for?”  When the complainant responded that she was drinking it at his demand, he said, “Sweetheart, you need to throw up.”  She told the defendant that it was burning her mouth, throat and stomach.  He walked her to the grass and said, “Please, you have to throw up.  Why did you swallow it, please throw up.”  The defendant left the complainant on the grass and poured the remaining petrol in the bucket into a green jerry can.  She recognised the jerry can as being one that the defendant kept in his utility vehicle.

21. The defendant told the complainant that she needed to shower.  He helped her into the house and into the bathroom.  On the way to the bathroom, she noticed that the knife, his mobile telephone, her mobile telephone and the house telephone were on the dining room table.  As they walked past, he took the lighter from his pocket and put it with the other items.  He placed a bath towel on the bathroom floor and removed the complainant’s clothes.  He helped her into the shower.  He put her clothes on the floor of the shower and poured shampoo over them.  He subsequently removed the clothes from the shower and then washed them in the bath.  The defendant then had a shower while the complainant sat on the floor of the shower.

22. The defendant and the complainant went to the complainant’s bedroom.  The defendant left the bedroom and returned a short time later with the knife, his mobile telephone and the complainant’s mobile telephone.  He placed the telephones on the bedside table and put the knife in the drawer of the bedside table.  He closed the bedroom door and locked it.  He placed a shelf unit against the door.  He said that this was so that he could hear her if she tried to leave the bedroom.  He said that he was going to take their daughter with him when he left to make sure that the complainant did not ring the police.  The defendant then lay on the bed and fell asleep at about 2.00 am.  The complainant said that she did not sleep.

23. In the morning, the defendant questioned whether the complainant would contact the police.  She assured him that she would not.  He said that he was sorry and that he wanted her to know how much he loved her.  He asked to have sex with her.  She did so because she wanted him to leave.  The defendant proceeded to have vaginal intercourse with the complainant.  She said that the defendant did not have the knife at that time and made no threats towards her.  She thought that if she refused to have sex with him, he would become violent.

24. The defendant then dressed and placed the knife and the complainant’s brassiere and top into the bucket.  He asked, “Are you sure you’re not going to call [the police].  I’m scared that you’re going to call them.”  The complainant again assured him that she would not.  The defendant left carrying the jerry can and the bucket.  The complainant then took a padlock from the house and locked the gate.  She returned to the house and locked the windows and doors.

25. The complainant’s father attended at the house and observed the complainant’s injuries.  He told her that they had to go to the police station.  The complainant told him that she had an appointment to see her son’s specialist at the hospital.  She showered and dressed.  The complainant and her father then attended the hospital and then the police station, where she made a formal complaint.  The defendant was arrested.

26. On 11 February 2010, the complainant received a telephone call from the defendant’s sister who said that the defendant had asked her to ask the complainant to drop the rape charges.  The defendant’s sister said that the defendant was in big trouble and that he was facing a lengthy sentence of imprisonment.  Later that day, the defendant’s sister again telephoned the complainant.  She said that the defendant had asked her to call again and that he was willing to give the complainant $2,000.00 to drop the charges.

27. On 12 February 2010, the complainant received a missed call from the defendant’s sister.  The complainant called the defendant’s sister back and the complainant was again asked to withdraw the rape allegations.  The defendant had asked his sister to pass on the message that he was willing to give the complainant his motor vehicle.  The defendant’s sister telephoned the complainant on one further occasion to ask whether she had thought about the defendant’s offer.

28. On 22 February 2012, the defendant pleaded guilty to two counts of rape, one count of creating a risk of harm and one count of attempting to dissuade a witness.  As a consequence of the pleas of guilty, the Director accepted a plea to the lesser charge of creating a risk of harm, rather than endangering life, and entered a nolle prosequi in relation to the charge of vaginal rape and the charge of aggravated kidnapping. 

    Application to Withdraw the Pleas

29. On 22 May 2012, the defendant applied to withdraw his pleas of guilty, asserting that issues of mental incompetence had not been addressed and that the interests of justice, in the circumstances, supported a grant of leave to withdraw his pleas and an enquiry as to his mental competence.  Amongst his complaints were allegations that he had received inadequate, incompetent and inappropriate legal advice. 

30. During the application to withdraw his pleas, the defendant gave evidence as to the circumstances of the offending.  Insofar as his evidence differed from that of the complainant, the Judge accepted the evidence of the complainant and sentenced on the basis of that evidence.  The sentencing Judge heard and dismissed this application.  In the course of his reasons,[6] the Judge set out a detailed summary of the evidence of the objective facts.  During sentencing the Judge referred to and adopted this summary as forming the factual basis of the defendant’s offending.  On the appeal, there was no complaint about the Judge’s conclusions in this respect. 

    [6]    R v N [2013] SADC 88.

1. When sentencing, the Judge summarised the defendant’s offending in the following terms:

   ... Your offending is obviously very serious. Offences of violence and sexual violence against the vulnerable cannot be tolerated. Your offending was committed over a number of hours and as I have said, was terrifying for your victim. In sentencing you for the principal offending, I have come to the view that you are not entitled to any discount for your plea of guilty. You made an unsuccessful application to withdraw the pleas, causing considerable distress to [the complainant]. You are, however, entitled to some credit for the inevitable plea of guilty to the charges called up from the Magistrates Court.

   The Judge then imposed sentence as follows:

   I will impose a single penalty pursuant to s 18A of the Criminal Law (Sentencing) Act for the offences committed against [the complainant], of imprisonment for nine years and six months. For the offence of dissuading a witness there will be a sentence of imprisonment for three months. For the offences of breaching bail and breaching a domestic violence restraining order there will be a single penalty of imprisonment for three months. Had it not been for your pleas of guilty to those charges, that sentence would have been four months. The sentences are to be served cumulatively, making a total sentence of imprisonment for 10 years.

   In fixing a non-parole period I take into account your behaviour since your offending and the benefit to both you and the community of a lengthy period of release under supervision by the Parole Board. I fix a non-parole period of five years and six months. The sentence and the non-parole period are to operate from 10 February 2010 when you were taken into custody, on the understanding that the sentence will thereby be served concurrently with the sentence of six months imprisonment for the assault.

   In addition, on the application of the Director of Public Prosecutions I make intervention orders in the terms contained in the orders now served upon you. The intervention orders prohibit you from approaching or contacting or communicating directly or indirectly with the person’s named in the orders. Your counsel will, I trust, take time to explain to you in detail the effect of those orders and if a time comes when it is thought appropriate that you might make some communication with the protected persons, then an application can be made to vary the orders.

   …

   Mr Nedza, in fashioning the sentence I have been required to impose I have endeavoured to reflect the seriousness of your offending and the impact upon that offending on the victim of your offending, but also to impose a sentence that is not so crushing as to leave you without hope for the future. It is important that during the rest of your time in prison you endeavour to undertake such training and such counselling or treatment as you can, so that when it comes time for your eventual release on parole you have some chance of making your transition back into the community.

   The Application for Permission and the Appeal

2. The principles applicable to appeals against sentence by the Director are well established.  A court should grant permission only in the rare and exceptional case.[7]  It is insufficient for a grant of permission for the Director to demonstrate that error has occurred.  Permission should only be granted if it is necessary to enable the Court to establish and maintain adequate standards of punishment, to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected or if a sentence is so far below the appropriate range of sentence that it reflects an error of principle.[8]  If the sentence is so far below the appropriate standard that to allow the sentence to stand would shake public confidence in the administration of justice, then it may be appropriate to grant permission to appeal even though no general point of principle will be established by the case.[9]

   [7]    Everett v The Queen (1994) 181 CLR 295.

   [8]    The Queen v Osenkowski (1982) 30 SASR 212, 213.

   [9]    R v Nemer (2003) 87 SASR 168, 172.

   The Submissions

3. The Director submitted that the head sentence and the non-parole period failed to reflect the objective seriousness of the defendant’s criminal conduct.  The offending was described as unambiguously grave, degrading, violent and disturbing.  The following factual aspects of the defendant’s conduct were emphasised:

   -The offending took place in the complainant’s home and in the presence of two children, the complainant’s daughter, aged 13 years, and the daughter of the defendant and the complainant, aged one year. 

   -The defendant assaulted the complainant repeatedly, including punching her in the head. 

   -The defendant was armed with a knife that he had apparently brought with him from his own home, demonstrating a measure of premeditation.  He held the knife to the complainant’s throat, he used the knife to slice through the complainant’s t-shirt and brassiere, he stabbed a pillow on the bed, narrowly missing the complainant’s head, and he held the knife to the cheek of the sleeping baby.

   -The defendant threatened to kill the complainant, their daughter and himself.  He demanded that the complainant arrange for her parents to attend so that they would see her die.  He threatened to kill the complainant’s parents.

   -The defendant anally raped the complainant twice, causing physical pain.  During the first rape, the defendant poked the knife between the complainant’s shoulder blades. 

   -The defendant threatened to rape the older daughter of the complainant.  The complainant pleaded with him not to do so and effectively offered herself in place of her daughter.  After this intervention, the second anal rape occurred. 

   -The defendant forced the complainant to swallow petrol.  He had brought the petrol with him into the complainant’s home.  Earlier, he had dropped a cigarette lighter saying, “This is to set you alight later”.  The defendant was not a smoker.  These matters further evidenced premeditation. 

   -The offending took place in breach of a restraining order that prohibited contact by the defendant with the complainant.  The offending also breached bail conditions prohibiting contact with the complainant.  The terms of bail and of the restraining order followed the defendant being charged with aggravated assault upon the complainant. 

4. The Director also drew attention to what was said to be the absence of any remorse or contrition on the part of the defendant.  Attention was drawn to the two opposing and irreconcilable positions advanced by the defendant when giving sworn evidence on his application to withdraw his pleas.  Initially, by affidavit, the defendant claimed to have no memory of the offending, but accepted that he had behaved as the complainant alleged.  Subsequently, when giving oral evidence, the defendant first claimed to have no memory at all but then in cross-examination said that he accepted nothing of the complainant’s account.  As earlier noted, the Judge accepted the complainant’s account.  The Judge further concluded that he did not accept that the defendant lacked memory of the offences.  The Director contended that the irreconcilable and opposing accounts meant that the defendant had lied.  This, it was said, was relevant to the conclusion that the defendant lacked contrition. 

5. The Director further submitted that the defendant’s disobedience of his bail conditions, his breach of the restraining order and his lies on the application to withdraw his plea cast doubt on his ability to comply with supervision and directions, for example, when on parole.

6. The Director complained about the decision of the Judge to order the sentences imposed in respect of the offending the subject of the appeal to be served concurrently with the six month term of imprisonment imposed in respect of the offending on 14 December 2009, the subject of the Magistrate’s sentence imposed on 3 September 2010.  It was said that, in the circumstances, on any view, a cumulative sentence should have been imposed. 

7. The defendant submitted that no error had been identified on the part of the Judge in the exercise of his discretion.  It was accepted that both the head sentence and the non-parole period were merciful in length, but it was contended they were not so low as to shock the public conscience.  It was said that the sentence was not so low as to require intervention to maintain sentencing standards for like offending.  It was argued that in these circumstances the Everett[10] principle had application; this was not a rare and exceptional case and permission to appeal should be refused.

   [10]   Everett v The Queen (1994) 181 CLR 295.

8. The defendant submitted that the opinions of the psychologist were of particular importance.  The psychologist, when considering the prospects of rehabilitation, had placed weight on the fact that the defendant had no other significant criminal antecedents, had a strong work-ethic and excellent employment history, and that as a result of the circumstances surrounding the offending, the defendant had developed an adjustment disorder characterised by depression and anxiety.  The psychologist also had regard to the absence of traditional static or dynamic criminogenic risk factors.  It was said that, notwithstanding the seriousness of the defendant’s offending, there was no clinical evidence to suggest that he presented as an ongoing threat to the complainant or her parents.  The psychologist suggested that given the absence of an entrenched history of offending behaviour and the defendant’s otherwise lawful and productive lifestyle in the community, both at work and within his family, he would respond well to strict community supervision and would be compliant with parole conditions.  It was the psychologist’s opinion that with appropriate rehabilitation and support, the defendant could successfully reintegrate with the community.

9. The defendant contended that the above factors were relevant to supporting an element of mercy in the Court’s approach to the sentence of the defendant and that, in the circumstances, permission to appeal should be refused.

   Discussion

10. This Court has previously addressed the seriousness of offences characterised as domestic violence offences.  It is important to record again the following observations.

11. In Wiskich, Martin J, with whom Prior and Williams JJ agreed, observed:[11]

    … 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. …

    [11]   R v Wiskich (2000) 207 LSJS 431, [69].

12. In McMutrie, I observed with the agreement of Perry and Williams JJ:[12]

    Domestic violence is not just physical abuse but includes a range of violent and abusive behaviours perpetrated by one person against another. A high percentage of victims are women and children. Domestic violence has existed for centuries. However, over the last 30 years its prevalence has been increasingly recognised. This has caused considerable community and governmental concern.

    Legislation has been introduced throughout Australia. In South Australia the Domestic Violence Act 1994 (SA) applies. The law seeks to protect the innocent and vulnerable. The legislative scheme is directed towards providing protection. This protection is primarily provided through the mechanism of restraining orders.

    Restraining orders are the principal legal response to domestic violence. They can be obtained expeditiously from a magistrate's court. The standard of proof is on the balance of probabilities. Orders can be tailored to the particular conduct of the abuser and breaches are a criminal offence.

    In this case the victim had obtained a restraining order. She had done all she could to protect herself. The breach of the restraining order is a matter of particular gravity. The use of the knife to engender fear and wound was an aggravating feature to the appellant's crime. The gravity of his conduct called for the imposition of an immediate custodial sentence.

    [12]   R v McMutrie (2002) 83 SASR 261, 264-265.

13. In Parisi, Nyland J, with whom Debelle J and I agreed, observed:[13]

    … Domestic violence of any kind is to be abhorred. The fact that the appellant's conduct took place in breach of a domestic violence restraining order is an aggravating factor. This means that general deterrence must play a significant part in the sentencing process to bring home to others who might be like-minded that the courts will not tolerate this type of behaviour. …

    [13]   R v Parisi (2003) 86 SASR 183, 188.

14. In M, AG, Sulan J, with whom Vanstone and Peek JJ agreed, observed:[14]

    The fact a complainant of rape was once in a sexual relationship with the offender does not mitigate the seriousness of the offence.  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. …

    [Footnote omitted.]

    [14]   R v M, AG (2013) 116 SASR 219, 226.

15. Quite apart from the circumstance of domestic violence, the defendant’s offending involved significant circumstances of aggravation, including the breaches of bail and the restraining order, the presence of the complainant’s children, the use of the knife and, in particular, the presentation of the knife to the head of the sleeping baby.  A further circumstance of aggravation was the premeditation evidenced by the defendant bringing with him the knife, the petrol in a container and the lighter.  The Director’s description of the offending as unambiguously grave, degrading, violent and disturbing does not overstate the gravity of the defendant’s offending. 

16. In seeking and obtaining a restraining order against the defendant, the complainant had sought the law’s protection against violence inflicted by her former partner, the defendant.  Despite this and in breach of that restraining order, the complainant was again the victim of violent offending of a most serious nature.  The restraining order ought to have demonstrated to the defendant in the clearest terms the seriousness with which domestic violence is regarded both by the courts and by wider society.  The fact that the offending occurred in breach of that order is a serious matter of aggravation and a significant factor in my conclusion that the sentence imposed by the Judge was manifestly inadequate.  

17. The defendant’s criminal conduct called for a substantially heavier sentence than that imposed.  I consider that the Judge did not impose a sentence that adequately addressed the need for both general and personal deterrence.  I consider that the Judge failed to give adequate weight to matters of aggravation.  I consider that the Judge erred in directing that the sentence of six months’ imprisonment for the earlier offending should be served concurrently with the present sentence.  The defendant’s conduct in breaching his bail and the restraining order are serious matters.  I am in no doubt that the sentence was so low as to shock the public conscience.  I would grant the Director permission to appeal, allow the appeal and resentence the defendant. 

18. I consider that all of the offending on 8 February 2010, as well as the offence of attempting to dissuade a witness, formed an ongoing course of criminal conduct by the defendant. I would impose the one sentence of imprisonment for this course of criminal conduct pursuant to section 18A of the Sentencing Act.  In determining that sentence, I have had specific regard to the seriousness of the two counts of anal rape and the cruelty and callousness associated with the offence of creating a risk of harm.  I have also had regard to the seriousness of the defendant’s attempt to dissuade a witness.  This was an attempt by the defendant to escape by any means the consequences of his conduct and I consider this to be part of the one course of criminal conduct.  I would commence with a notional head sentence of 20 years’ imprisonment, having made an allowance of one year on account of the pleas of guilty. 

19. Before finally determining an appropriate sentence, it is necessary to have regard to the principle of totality.  I consider that a head sentence of 20 years would be crushing.  It is appropriate to reduce the sentence on that account.  As a consequence, I would impose a head sentence of 15 years.  I would fix a non-parole period of 10 years.  The defendant has been in custody since 10 February 2010.  The sentence of six months’ imprisonment imposed in the Magistrates Court has now been served.  The sentence of 15 years’ imprisonment is to be served in addition to and cumulative upon the sentence imposed in the Magistrates Court.  I would, as a consequence, direct that the sentence of 15 years’ imprisonment commence on 10 August 2010.  I would confirm the intervention orders made by the sentencing Judge. 

    Conclusion

20. I would grant the Director permission to appeal and allow the appeal. I would resentence the defendant in respect of the two counts of rape, the count of creating a risk of harm, the count of attempting to dissuade a witness, the count of breaching a bail condition and the count of breaching a domestic violence restraining order to the one term of imprisonment pursuant to section 18A of the Sentencing Act of 15 years.  I would fix a non-parole period of 10 years.  I would backdate the sentence to commence on 10 August 2010.

21. STANLEY J:        I agree with the orders proposed by Gray J.  I agree with the reasons of Gray J and Nicholson J.

    NICHOLSON J.

    Introduction and background

22. The Director of Public Prosecutions has applied for permission to appeal against a sentence of imprisonment imposed upon the respondent in the District Court.[15]  The principal ground of appeal is that the head sentence and non-parole period are manifestly inadequate. 

    [15]   Notice of Application for Permission to Appeal against sentence, AB 1.

23. The respondent pleaded guilty to committing, during the evening and night of 8 February 2010 to 9 February 2010, two offences of rape involving penile/anal sexual intercourse and one offence of creating a risk of harm which comprised pouring petrol through a homemade funnel down the throat of the same victim, DZ.  The maximum penalty for each of the offences of rape is life imprisonment[16] and the maximum penalty for the offence of creating a risk of harm is five years imprisonment.[17]  In addition, the respondent pleaded guilty to committing, on 10 February 2010, the offence of attempting to dissuade a witness.  In essence, the respondent arranged for a member of his family to attempt to persuade DZ from proceeding with her complaints.  The maximum penalty for the offence of attempting to dissuade a witness as at the time this offence was committed was seven years imprisonment.[18]

    [16]   Criminal Law Consolidation Act 1935, s48.

    [17]   Criminal Law Consolidation Act, s29(3).

    [18]   Criminal Law Consolidation Act, s244(3). The maximum penalty has since been increased to 10 years.

24. DZ and the respondent had been in a relationship but shortly prior to the time of the offending had become estranged.  DZ is the mother of the respondent’s then one year old daughter, IZ, and is also the mother of a 13 year old daughter from an earlier relationship.  Both daughters were present in the home throughout the course of the respondent’s offending.  The offending took place over a significant period of time and was accompanied by serious verbal and physical assaults. 

1. The two offences of rape and the offence of creating a risk of harm (the “principal offences”) also were the occasion for the respondent’s commission of two further, summary, offences: failing to comply with a bail agreement (by way of breaching a non-contact condition) and failing to comply with a domestic violence restraining order.  Each of these offences carried a maximum penalty of two years imprisonment.[19]

   [19]   Bail Act 1985, s17 and Domestic Violence Act 1994, s15(1).

2. The sentencing Judge exercised the discretion available to him pursuant to s18A of the Criminal Law (Sentencing) Act 1988 to impose the one penalty for the two rape offences and the creating risk of harm offence of nine years and six months imprisonment.  His Honour allowed no discount for the plea of guilty.  The respondent had pleaded on the morning of the first day of trial (22 February 2011).[20]  As a consequence of the respondent’s willingness to plead to the charges outlined above, the Director of Public Prosecutions accepted a plea to the lesser charge of creating a risk of harm rather than the charge as originally laid of endangering life and entered a nolle prosequi in relation to each of a charge of vaginal rape and a charge of aggravated kidnapping.  However, after the pleas were entered, the respondent applied to withdraw them. 

   [20] The reference to the plea being taken on 22 February 2010 in the Judge’s Reasons for Ruling [2013] SADC 88 at [4], AB 155, would appear to be in error.

3. The application was opposed by the Director.  The application took some time to be resolved.  It proceeded to a hearing over 4 days in May 2013 during which the respondent gave evidence.  The Judge published lengthy and detailed written reasons for his ruling, delivered on 4 July 2013, dismissing the application.[21]  There was no appeal from this decision and the matter proceeded by way of sentencing submissions and the delivery of sentence by the Judge on 12 September 2013.[22]  His Honour indicated in his sentencing remarks the reason for exercising the discretion not to allow any discount for the pleas. 

   In sentencing you for the principal offending, I have come to the view that you are not entitled to any discount for your plea of guilty.  You made an unsuccessful application to withdraw the pleas causing considerable distress to [the victim].  You are, however, entitled to some credit for the inevitable plea of guilty to the charges called up from the Magistrates Court.

   [21]   R v N [2013] SADC 88, AB 154 (“withdrawl of plea judgment”).

   [22]   AB 300.

4. The Judge imposed separate penalties for each of the other three offences.  For the offence of attempting to dissuade a witness his Honour imposed a term of imprisonment for three months again without (apparently) allowing any discount for the plea of guilty and ordered that this term of three months was to be served cumulatively.  For the two summary offences, his Honour, again it would seem by exercising the discretion available under s18A, imposed a single penalty of three months reduced from four months on account of the pleas of guilty which was also ordered to be served cumulatively.  In the result, the head sentence imposed for all of the offending before the Judge was a term of 10 years imprisonment.  A non-parole period of five years and six months was fixed. 

5. The respondent had been taken into custody on 10 February 2010, that is, within a day or so of committing the principal offences and has remained in custody ever since.  At the time he committed the principal offences the respondent was on bail having been charged with one count of aggravated assault against DZ and one count of assault against DZ’s mother which assaults occurred on 14 December 2009.  By way of completing this aspect of the background, the respondent had, in fact, also assaulted DZ on an earlier occasion (8 January 2008).  This was dealt with by the Magistrates Court in April 2008 by way of a bond and without a conviction being recorded. 

6. Following the offending on 14 December 2009, the respondent was released on bail and also made subject to a domestic violence restraining order.  It was this bail agreement and this restraining order that the respondent breached when he committed the principal offences. 

7. Meanwhile, the two assaults committed on 14 December 2009 were not conceded by the respondent and went to trial.  The respondent was found guilty of both offences.  The respondent was sentenced in the Magistrates Court on 3 September 2010.[23]  On that date, the Magistrate imposed an immediate term of imprisonment for six months and directed that it was to commence on the day of sentencing, that is, 3 September 2010. 

   [23]   Remarks on penalty, 3 September 2010, AB 200.

8. The sentence of six months imprisonment would have expired on or about 2 March 2011, well before the Judge came to sentence for the present offending.  As at on or about 2 March 2011, the respondent resumed his status of being in custody on remand for the present offending.  Nevertheless, the Judge exercised the discretion available to him to order that the total term of imprisonment set by him of 10 years with a non-parole period of five years and six months was to be backdated to commence on 10 February 2010 when the respondent was first taken into custody.  In other words, and this was expressly stated by the Judge as being his intention, the sentence imposed by the Judge operated, in effect, concurrently with the term of six months imprisonment ordered in the Magistrates Court and which had already been completed in early 2011. 

   The Director’s grounds of appeal and the approach to a Crown appeal

9. The applicant relies on the following grounds.[24] 

   1.The head sentence and the non-parole period are manifestly inadequate and in particular,

   1.1    failed to reflect the seriousness of the offending and the need for general deterrence for offending of this type,

   1.2    failed to reflect the need to personally deter the defendant,

   1.3    failed to have regard or sufficient regard to the defendant’s denials of any wrongdoing when giving evidence on the application to vacate his pleas of guilty.

   2.The learned sentencing Judge erred in making the head sentence and the non-parole period concurrent with the previous sentence for violent offending against the same victim.

   [24]   Notice of Application for Permission to Appeal against sentence, AB 1.

10. In the applicant’s written outline of argument these grounds for permission to appeal were amplified in the following terms.[25]

    [M]atters relevant to fixing a head sentence are also relevant to the fixing of a non-parole period.  In particular, the requirements of punishment, general deterrence and personal deterrence must be reflected (R v Creed (1985) 37 SASR 566; R v Dubois (2004) 88 SASR 304 at [26]-[27]). The non-parole period neither properly reflects the gravity of the offending, nor provides adequate punishment, nor serves as a deterrent.

    The head sentence and non-parole period are so low as to reflect an error in the sentencing process which requires the intervention of this court. 

    [25]   At paragraphs 5 and 6.

11. The proper approach to a Crown appeal against sentence, to be observed by an appellate court, is well settled.  Permission to appeal is to be granted only in rare and exceptional circumstances.[26]  This State’s Court of Criminal Appeal (consisting of five justices)[27] not so long ago summarised the proper approach in the following terms.[28]

    The principles to be applied to applications by the Director of Public Prosecutions for leave to appeal against a sentence are well known. Leave should only be granted to establish some matter of principle, pursuant to which the Court of Criminal Appeal might give guidance to sentencing judges, or if it is necessary for the court to establish and maintain adequate standards of punishment for a crime, or to correct a sentence which is so disproportionate to the seriousness of the crime as to require intervention so that standards of penalty and public confidence in the administration of justice can be maintained: see Everett v The Queen (1994) 181 CLR 295 at 299-300; Griffıths v The Queen (1977) 137 CLR 293; R v Osenkowski (1982) 30 SASR 212 at 212-213.

    [26]   Everett v R (1994) 181 CLR 295 at 299-300.

    [27]   R v Payne (2004) 89 SASR 49, Doyle CJ, Mullighan, Nyland, Sulan and Anderson JJ.

    [28] At [86].

12. In many cases, intervention has been said to be justified where a particular sentence is so far below the appropriate range of sentences for a particular crime that, if allowed to stand, it would “shock the public conscience”.  One has a general appreciation of that to which this notion is directed.  However, I do not find it easy to articulate what it means to “shock the public conscience” given the inherent difficulties in identifying what constitutes the “public” conscience in a way that is not simply a reflection of the views of those persons or groups of persons who happen to make their views known publically and in a way that separates it from the conscience of the Judge hearing the appeal.  I prefer the formulation used in R v Payne which is directed to a sentence that is “so disproportionate to the seriousness of the crime as to require intervention so that… public confidence in the administration of justice can be maintained”. 

13. It is also well established that permission should not be granted merely with the view of correcting a sentence that is regarded by the appeal court as too low.  However, even where no general point of sentencing principle, or need to establish or maintain an adequate standard of sentencing for a particular offence or kind of offence, arises, permission to appeal might still be granted if the sentence in question is so far below the appropriate standard that, to allow it to stand would shake public confidence in the administration of justice.[29]  As Doyle CJ observed in R v Nemer[30] “there is a question of degree and a subjective assessment involved here, and that makes it difficult to apply this criterion.”

    [29]   R v Nemer (2003) 87 SASR 168 at [24].

    [30] At [24].

14. The concern that an accused might be exposed to double jeopardy is a consideration relevant to the granting of permission to appeal.  However, it is no longer a relevant consideration at the sentencing stage, if permission were to be granted.[31]

    [31]   Criminal Law Consolidation Act 1935, s340; R v Harkin (2011) 109 SASR 334 at [33]-[37], [103]-[106]; R v V [2012] SASCFC 10 at [6], [16]-[20].

15. There is always a residual discretion in the Court to decline to interfere even where the sentence is shown to be too lenient and erroneously so.[32]

    [32]   R v Reed [2013] SASCFC 16 at [23]; DPP (Vic) v Karazisis & Ors (2010) 206 A Crim R 14 at [104]; R v JW (2010) 199 A Crim R 486 at [92]; R v V [2012] SASCFC 10 at [21]-[22]..

16. This is not a case in which the Court needs to intervene to set or to identify an appropriate standard of penalty for the offence of rape, the range for which can be wide.  This is not a case where it is necessary for the Court to establish or to maintain adequate standards of punishment for this type of crime.  Nor is it a case where it is necessary to correct idiosyncratic views of individual Judges with respect to the crime of rape.

17. The applicant submitted that the sentence in this case is so unreasonable and so disproportionate to the seriousness of the crimes committed as to require intervention on the basis that to fail to do so would shake public confidence.  For the reasons which follow I agree with that submission. 

18. In the circumstances of this case, I am not satisfied that any concern with respect to double jeopardy carries sufficient weight so as to militate against the granting of permission to appeal.  Nor am I satisfied that the residual discretion reposed in the court to decline to interfere should be exercised.

    The circumstances of the offending in more detail

19. The Judge’s description of the prosecution case as to the circumstances of the offending, based on the declarations of DZ, is set out in some detail in his Honour’s judgment dismissing the respondent’s application to withdraw his pleas.  I do not understand this factual basis of the offending as described by the Judge to be under challenge.  However, what might be inferred or what conclusions might be drawn from this factual basis bearing on the respondent’s state of mind, level of contrition and potential for rehabilitation is relevant to the respondent’s argument in resisting the claim that the sentence imposed should be seen as manifestly inadequate.  I have relied substantially on the Judge’s description of the material events in the summary which follows.[33]

    [33]   Withdrawal of plea judgment at [33]-[55], AB 161-164.

20. The respondent and DZ were in a relationship for about three years during which IZ was born.  DZ also had a daughter and son from an earlier relationship.  She and the respondent did not live together although the respondent slept at DZ’s house once or twice a week.  The relationship was described by DZ as “on and off” and ended in November 2009.

21. At about 6.30pm on the evening of 8 February 2010, DZ received an abusive phone call from the respondent.  Soon after receiving the call she went with her parents, who lived nearby, to the Women’s and Children’s Hospital where her son had been admitted.  She returned home at about 9.20pm and put the other two children to bed.  She noticed that she had 13 missed calls from the respondent. 

22. Soon after this the respondent entered DZ’s house through the back door and without permission.  He argued with her and then struck her across the face with his fist.  The respondent brandished a knife at DZ which DZ recognised as a knife she had seen at his house.  The respondent struck her on the side of the head again with his fist and said words to the effect “This is the end, you are not going to throw me away again” and “You are not going to lie to me.  I’m going to finish it all today.  First you, then IZ, then myself”.  He punched her to the face a number of times.  The photographs indicate that the physical assaults were brutal, not just, but in particular, to the region of the eyes. 

23. At one point, the respondent put the knife against the throat of DZ and by using foul, abusive and threatening language, demanded sex.  Again, using such language, likening her to a whore, he demanded anal sex.  DZ was forced to lie face down on the couch and the respondent used his knife to cut through the back of DZ’s t-shirt and bra before anally raping her. 

24. The respondent did not leave until the next morning.  Over this lengthy period of time the respondent raped DZ anally twice and continued to verbally and physically assault her.  When removing his trousers a cigarette lighter fell from one of his pockets.  He said words to the effect, “this is to set you alight later”.  At one stage, the respondent pushed DZ into the bathroom during which she could feel the knife between her shoulder blades.  He told her to telephone her parents and to tell them to come to the house so that they could watch her die after which he would “finish them off”.  At one point, the respondent stabbed the bed five or six times with the knife and stabbed the pillow on which DZ was lying.  She had to move her head to avoid being stabbed.  The respondent said words to the effect “don’t move your head because you’re going to get it anyway”.  The respondent also threatened (to DZ) to engage in intercourse with her 13 year old daughter who was asleep in one of the bedrooms. 

25. At one stage, the respondent sat down on the couch and said “What the fuck am I doing?  I can’t do this, my boys[34] will cry. They’ll miss me, they love me, but I can do it to you”.  Notwithstanding this moment of insight, the respondent was not diverted from his course and went on to anally rape DZ for the second time and to commit the creating risk of harm offence.

    [34]   The respondent has two sons from a former relationship.

26. The respondent fashioned a homemade funnel from an empty plastic drink bottle.  He made DZ place the funnel in her mouth and poured petrol from a bucket into the funnel demanding “make sure you swallow”.  DZ was able to partially re-direct the flow of petrol out of her mouth but she swallowed some of the petrol.  Again, the respondent appeared to show a moment of insight or contrition when he castigated her for swallowing the petrol and told her to go and be sick – “Please you have to throw up.  Why did you swallow it, please throw up.”  The petrol in the bucket had come from a green jerry can which DZ recognised as being similar to one that the respondent kept in his motor vehicle. 

27. The series of physical atrocities perpetrated by the respondent on DZ eventually come to an end.  The two of them had showers after which the respondent locked DZ in a bedroom.  He threatened to take IZ with him when he left to ensure that DZ did not ring the police.  The respondent eventually slept.  In the morning he pressured DZ not to call the police.  He also had penile/vaginal sex with DZ which, according to DZ, she allowed but only because she thought that if she refused he would become violent.  A charge of rape based on this incident was withdrawn at the time that the respondent pleaded to the charges for which he was ultimately sentenced.  The defendant left that morning taking with him the jerry can and the bucket. 

28. On the morning of the next day, 11 February 2010, DZ received a phone call from the respondent’s sister who told DZ that the respondent had asked her to ask DZ to drop the rape allegations.  The sister said that the respondent was in big trouble and facing a lengthy term of imprisonment.  The sister called again later that day and told DZ that the respondent was willing to give her $2,000 to drop the allegations.  The next day, 12 February 2010, the sister called and again pressured DZ to withdraw the rape allegations.  This time, the respondent had asked the sister to tell DZ that he was willing to give her his motor vehicle.  The sister called again on either the 16^th or 17^th February to see if DZ had thought about the respondent’s offer. 

29. DZ, in her statement, referred to the respondent as being red in the face and sweating and giving an appearance of being under the influence of drugs.  The respondent, during his evidence and in submissions before the Judge during the hearing of the application to withdraw the pleas, maintained that he had been significantly intoxicated that night having consumed a combination of alcohol and illicit drugs.  The Judge rejected this evidence in part.[35]  His Honour said this.

    [The respondent’s] account of the extent to which he had consumed alcohol, and illicit drugs, became more exaggerated as subsequent examinations and assessments took place.  It may be that the [respondent] was intoxicated by alcohol.  I do not accept his evidence that he consumed illicit drugs.  As I have said, his accounts of his level of intoxication, and the level of his mental functioning, appear to have developed throughout the process of this application. 

    [35]   Withdrawal of plea judgment at [190]; AB 185. 

30. His Honour went on to find that even if he were to accept the respondent’s evidence as to his level of intoxication given subsequent to his pleas of guilty, his evidence was unequivocal as to his voluntary consumption of all of the intoxicants and to the effect that he knew prior to consuming a drink that it contained “speed”.  The Judge rejected the respondent’s evidence to the effect that he lacked a memory of the events of the evening.[36]

    [36]   Withdrawal of plea judgment at [193]; AB 185.

    The applicant’s submissions

31. The applicant submitted that any sentence imposed was required to reflect and be proportionate to the seriousness of the offending.  The respondent’s conduct that night was attended by the following matters of aggravation.

    (i)The offending occurred within DZ’s own home at a time when her two daughters, aged 13 and 1, were present in the home.  It was a very serious example of domestic violence and a very serious example of one of the problems that domestic violence leads to, namely, abject fear in the victim given that thereafter she can no longer feel safe anywhere, not even in her own home.

    (ii)The offending occurred in circumstances where the respondent was subject to a court order (the bail agreement) not to contact or be in the presence of DZ and was subject to a domestic violence restraining order.  This exacerbated the concern identified in (i) above.  The law here is designed to protect potential victims from future attacks of domestic violence and to allow them to feel safe.  However, the efficacy of the law is dependent on persons in the position of the respondent acting in compliance with and respecting the law.  It is a very serious feature of the respondent’s offending that court orders designed to protect DZ from further violence in her own home were consciously ignored and rendered impotent. 

    (iii)DZ was repeatedly, physically assaulted including a number of punches to the head and face.

    (iv)The respondent was armed with a knife.  The fact that it was brought from his own house showed a measure of premeditation.  The respondent did more than merely brandish the knife.  He used it in multiple ways with the intention of and which, no doubt, had the effect of, terrifying DZ not only as to her own welfare but as to that of her two daughters.

    (v)The respondent made threats to kill DZ, their daughter, IZ, and DZ’s parents.

    (vi)The rapes were violent and the respondent caused significant physical pain to DZ during the two acts of anal intercourse.

    (vii)The respondent threatened to have sexual intercourse with DZ’s 13 year old daughter which, inevitably, led to DZ being more compliant to his wishes. 

    (viii)The respondent brought petrol together with a cigarette lighter to DZ’s house (the respondent does not smoke) which again indicated planning and premeditation.

1. I agree with the Crown’s submission that these features render the overall course of criminal conduct to have been extremely serious and serve to emphasise the need for general deterrence to play a significant role in the sentencing calculus.  The fact that the respondent and DZ were once in a sexual relationship does not mitigate the seriousness of the offence of rape and where such a crime is premeditated and occurs following the breakdown of a relationship there is a need to have particular regard to general deterrence.[37]

   [37]   R v M [2013] SASCFC 39 at [42].

2. The Crown also submitted correctly, with respect, that where offending of this nature occurs in the context of domestic violence, both personal and general deterrence must play a significant role in the sentencing process.  Domestic violence is all too frequent in our society and so often occurs in secret or goes unreported.  Where the authorities do become aware of domestic violence it must be met with condign punishment.  It also is important that the opportunity be taken to bring home to others who might be like minded that the courts will not tolerate domestic violence, particularly where, as is typical, it is meted out to physically weaker or defenceless children and women.[38]  I have already mentioned as related considerations, in this respect, the facts that the violence occurred in DZ’s own home and in breach of court orders intended to prevent recurrences of this behaviour by this respondent. 

   [38]   Cf; R v Parisi [2003] SASC 249 at [21].

3. The Crown maintains that this case is also one where personal deterrence must play a significant role in the sentencing process.  The respondent has demonstrated an escalating pattern of violence towards DZ.  The assault in January 2008 for which the respondent received a bond without conviction was followed by the aggravated assault on DZ and the assault on her mother in December 2009 which was of sufficient seriousness to warrant imprisonment for six months and this was followed by the far more serious offending presently under consideration only two or so months later.  DZ could be forgiven for asking what might she expect on the next occasion. 

4. I accept that the respondent’s criminal record does not disclose a proclivity for violence directed towards general members of the community.  However, the respondent is still a relatively young man likely, in the future, to enter into other close personal relationships.  It is in such a context that any need in the respondent to dominate and control, to the extent of engaging in domestic violence both physical and sexual, might manifest itself.  He must understand that any repeat of this type of behaviour during any new relationship, will be completely unacceptable.

   The respondent’s submissions

5. Counsel for the respondent drew the Court’s attention to the various psychological and psychiatric reports that were available to the Judge.[39]  Counsel pointed to the respondent’s candid expressions, to the psychologist Mr Balfour, of responsibility for the offending and of self abhorrence.  Counsel drew the Court’s attention to a number of conclusions reached by Mr Balfour, including the following.

   (i)The respondent possesses few of the traditional static and dynamic criminogenic risk factors which have been identified as predisposing an individual towards offending behaviour. 

   (ii)The offences under consideration represent the first time that the respondent had come into significant legal conflict as an adult.  In this respect, it is to be noted that the antecedent report before the Court discloses no prior offending by the respondent other than the aggravated assault in 2008 and the aggravated and common assault in late 2009. 

   (iii)The respondent does not have a history of pathological boredom, alcoholism or polydrug abuse problems.  Whilst the respondent does appear to have anger management problems, he does not have a history of generalised impulse control problems in the community.  All of the respondent’s violent offending has occurred in the context of his relationship with DZ.

   (iv)The respondent has a strong work ethic and an excellent employment history.

   (v)As a result of the circumstances surrounding the offending, the respondent has developed an adjustment disorder characterised by depressive and anxiety features.

   (vi)The respondent has a poor recollection of his actions[40] which could be a result of either shock and shame regarding his horrendous offending behaviour or post-intoxication amnesia.

   (vii)When asked who was responsible and how he felt about the behaviour, the respondent acknowledged that he was responsible and expressed himself in terms that suggested to Mr Balfour genuine contrition. 

   (viii)The respondent accepted that his offending behaviour had destroyed any prospect of reconciling with DZ and he no longer wishes to reconcile.  As a consequence, Mr Balfour was of the view that there was little evidence to suggest that the respondent presented an ongoing threat to DZ or her parents.

   [39]   Psychological reports of Richard Balfour dated 1 September 2011 and 22 March 2012, of Dr Jack White dated 12 October 2011 and 24 February 2012 and the psychiatric reports of Dr Craig Raeside dated 23 January 2012 and 15 February 2012, AB 206-277.

   [40]   This conclusion is to be treated with some reserve given the Judge’s findings on this issue.

6. Mr Balfour specifically addressed the respondent’s prospects for rehabilitation and expressed the view that with the assistance of supervised rehabilitation programs those prospects were good.  He gave a number of reasons for this opinion.

   (i)The offending occurred in response to a unique constellation of situational stressors which are unlikely to be repeated.

   (ii)The offending behaviour was atypical as compared with the respondent’s past history of good relations with women.

   (iii)There is no clinical evidence to suggest sexual deviancy.

   (iv)The respondent does not have an entrenched history of offending behaviour.

   (v)A significant factor contributing to the offending was the use of alcohol cannabis and amphetamine for the first time which according to Mr Balfour acted as behavioural disinhibitors.[41]   However, according to Mr Balfour, the respondent does not have entrenched drug and alcohol abuse problems.

   (ix)The respondent has no history of criminal offending outside of the relationship with DZ.

   (x)The seriousness of the offending has had a salutary effect upon the respondent.

   (xi)The respondent enjoys the support of two brothers and a sister and possesses a number of personal resources pertinent to the prospects of rehabilitation, including, normal intelligence and a good work ethic.

   (xii)The respondent would respond well to strict community supervision with assertive case management and would be highly compliant with any court orders or parole conditions.[42]

   [41]   This factor as relied on by Mr Balfour for his opinion as to prospects of rehabilitation must be treated with some reserve given the Judge’s findings in this respect which are contrary to the instructions received by and acted upon by Mr Balfour.

   [42]   Again, this feature must be taken with some reserve given that the respondent has proved himself capable of and willing to breach conditions of bail and a domestic violence restraining order.

7. In essence, Mr Balfour expressed the view that with appropriate rehabilitation and support the respondent would be able to successfully reintergrate into the community.  In my view, Mr Balfour in a number of respects, has reached generous and perhaps overly generous conclusions concerning the respondent, the factors that contributed to his behaviour on the night in question and his prospects for rehabilitation.  Nevertheless, I am particularly conscious of the fact that the respondent at the age of 42 or so has lived a productive and law abiding life marred only by his criminal offences committed in the context of his relationship with DZ.  As such, I accept that Mr Balfour’s opinions that the respondent’s prospects for rehabilitation are good and that the respondent does have the capacity to successfully reintergrate into the community, should be accorded significant weight.

8. Nevertheless, the personal circumstances of the respondent including his prospects for rehabilitation is but one, albeit important, factor to be considered when undertaking the sentencing exercise.

9. The respondent submitted that the Judge deliberately fashioned a sentence that reflected the seriousness of the offending and its impact on DZ but a sentence that was not so crushing as to leave the respondent without hope for the future.  It was submitted that the Judge, having considered the information before him and having had the benefit of hearing the respondent give evidence including under cross-examination, was in a good position to determine the extent to which the respondent genuinely appreciated the seriousness of his offending and his level of contrition.  The Judge was best placed to assess the extent to which leniency should be given and to formulate a sentence that paid due regard to the seriousness of the offending but also to the need for rehabilitation of the respondent and to what ultimately would best serve the community. 

10. Counsel submitted that this Court should be careful to guard against overemphasising the undoubted seriousness of the offending and the natural opprobrium that must be directed to the respondent’s conduct in a way that would unfairly or improperly override the well recognised advantages that the Judge enjoyed when exercising this complex sentencing discretion. 

11. Ultimately, the respondent submitted that there was no identified error in the exercise of the Judge’s discretion and that whilst both the head sentence and non-parole period might be considered merciful they were not so low as to shock the public conscience, particularly given the personal circumstances of the respondent and the psychiatric and psychological evidence concerning the respondent that was before the Court.

    Resolution of the appeal

12. The two offences of rape and the offence of creating a risk of harm were particularly serious examples of their type.  Whilst the respondent is only to be sentenced for the offences to which he has pleaded guilty, these offences cannot be divorced from the whole of the respondent’s course of conduct that evening.  The actual offences and the circumstances surrounding them comprised acts of serious violence and were degrading, humiliating and terrifying.  The events of that night have had significant consequences physically, psychologically and emotionally for DZ.  The terror she must have experienced whilst having petrol poured down her throat, knowing that the respondent was in possession of a cigarette lighter and having heard his earlier threats, is not to be underestimated.  For reasons already stated, the facts that the offending occurred as part of a pattern of domestic violence, whilst DZ was present in her own home with her two young daughters, with the use of a knife and that the respondent’s very presence in the house let alone the offences committed were in breach of court orders designed to protect DZ were serious matters of aggravation. 

13. In R v Nemer Doyle CJ said this.[43]

    The sentencing of offenders who have committed serious crimes is difficult.

    The judge must impose a sentence arrived at by following the requirements of the Criminal Law (Sentencing) Act 1988 (SA) (the Sentencing Act). This requires consideration, putting things generally, of the penalty fixed by Parliament (usually a maximum only is specified), of the circumstances of the offence and of all of the matters affecting the sentence that are found in the Sentencing Act.

    The sentence imposed in a particular case should reflect certain broad objectives of sentencing. These do not replace the provisions of the Sentencing Act. They describe in broad terms the main objectives of the various requirements in the Sentencing Act. These objectives are the punishment of the offender or retribution (to reflect society’s disapproval and rejection of the conduct in question); deterrence of the offender from further offending; deterrence of other persons from offending, and rehabilitation or reform (that is, encouraging the offender to reform and to behave in accordance with the law). Sometimes it is said that these are the means by which the court protects the community.

    In different cases these considerations will operate in different ways and to differing degrees. As has been said, these considerations are no more than guideposts to the appropriate sentence and sometimes they point in different directions: Veen v The Queen (No 2) (1988) 164 CLR 465 at 476. In a given case considerations of deterrence might point towards a heavier sentence, while considerations of reform might point towards a lenient sentence. Arriving at a sentence in a particular case involves a balancing of all of the matters identified in the Sentencing Act, and the exercise of a judgment in the light of all relevant matters.

    That is why sentencing an offender is not a precise process. There is no sentence that is exactly right in a given case. In any particular case the most that can usually be said is that an appropriate sentence will be within a certain range. Any sentence within that range is appropriate. Different judges, presented with the one case, are likely to arrive at different results within that range. The different results do not indicate that an error has been made, as long as they are within the acceptable range. They reflect the nature of the sentencing process.

    This may be disconcerting to some. But it is important that the public understand it.  

    [43] (2003) 87 SASR 168 at [4]-[9].

14. In my view, the sentence imposed by the Judge fell well below the range to be expected for this course of criminal conduct.  It failed to reflect the gravity of the offending and paid insufficient regard to the need to deter others who might be inclined to offend in this way.  In my view, it fell so far below the range to be expected as to be manifestly inadequate in the sense that it was so disproportionate to the seriousness of the offending as to require intervention so that standards of penalty and public confidence in the administration of justice can be maintained.[44]

    [44]   Cf; R v Payne at [86].

15. In arriving at this conclusion, I am satisfied that counsel for the respondent has put all that could be put on behalf of the respondent in terms of relevant personal circumstances, prospects for rehabilitation and other matters that might go to mitigation of penalty.  However, this is one of those cases where the objectives of proper punishment of the offender, proper reflection of society’s disapproval and rejection of the conduct in question, deterrence of the offender from further offending and deterrence of other persons from offending in a like manner are of such importance as to demand a severe sentence.  In such a case, less weight will be given to factors personal to the offender than might otherwise have been given.  I would grant permission for the Director to appeal, allow the appeal against sentence and proceed to re-sentence the respondent.

16. In undertaking a re-sentencing there are considerations which cause me to depart from the approach adopted by the Judge. The Judge was not necessarily in error in using s18A of the Sentencing Act and in breaking up the sentencing task in the way he did.  However, in the circumstances of this matter, this approach was, in my view, a likely contributor to the error in the outcome.

17. This was a case where it was not helpful to deal with the offences of failing to comply with a bail agreement and failing to comply with a restraining order separately from the principal offences the commission of which, in part, gave rise to those two summary offences.  The difficulty that confronts a sentencing court in a case such as this is that the principal offences were aggravated by and assumed colour and context from the concomitant breaches of the bail agreement and the restraining order.  However, when sentencing separately for the principal offences and for the two summary offences it is essential that a court avoids any sense of double punishment. 

18. It is true, that this can be achieved, as the Judge attempted to do, by making the separate sentences partially or wholly concurrent.  However, the success of this approach depends upon being able to notionally but accurately separate out that component of the sentence nominated for the two summary offences which represents the aggravating feature with respect to the principal offences.  Only by being able to do this can a sentencing Judge accurately identify the extent to which, if at all, partial or full concurrency ought to be ordered.  Adopting the approach of sentencing separately for the two summary offences where those offences also aggravated the principal offences enhances the risk of an overall under-punishment or over (double) punishment. 

19. In this case, my preference is to deal with all six offences by the imposition of one penalty pursuant to s18A and by forming an assessment of the overall criminality of this one course of conduct. 

20. Where a number of offences are dealt with by the imposition of just one penalty pursuant to s18A it sometimes will be helpful for individual indicative sentences to be identified.  Sometimes, but not in this case, this will be essential such as, for example, where not all the offences in the group attract a mandatory minimum non-parole period but some do.  However, it is not necessary always to identify individual indicative sentences.[45]  In most cases where s18A is employed, issues of concurrency will be of particular significance and must be taken account of.  In addition, the question of totality not infrequently will need to be considered but as part of not after the fixing of the single penalty.[46]  Ordinarily, it would be helpful for a Judge to indicate, at least in general terms, in what respects or with respect to which offences the question of partial or whole concurrency has been taken account of.  Nevertheless, where s18A is used without identifying individual sentences, whilst the issue of concurrency still must be considered, the extent of any concurrency allowed for will not be expressly or fully particularised. 

    [45]   R v Copeland(No 2) (2010) 108 SASR 398.

    [46]   R v Power (2001) SASC 157; R v Bennett (2005) SASC 55; Golden Eggs Pty Ltd v City of Port Adelaide (2005) SASC 279.

21. Provided issues of concurrency and totality are not overlooked there will be occasions when it is appropriate and convenient to go directly to a single sentence to be imposed under s18A.[47]  In my view, this is such a case.  I have in mind what I consider to be an appropriate starting point for the respondent’s overall course of criminal conduct on the night in question and within the few days thereafter, being: the two offences of rape, the offence of creating a risk of harm, the offence of breach of bail agreement, the offence of failing to comply with a restraining order and the offence of attempting to dissuade a witness.  I am mindful that the respondent is not to be punished for other criminal conduct which he engaged in on that night but which was not charged and to which he has not pleaded guilty.  Nevertheless, that conduct is of significance to an assessment of the seriousness of the offences as committed and to the question of leniency. 

    [47]   R v Symonds [1999] SASC 217 at [22] (Doyle CJ with whom Prior and Mullighan JJ agreed); R v Vanderhorst [2006] SASC 243 at [54]-[57] (Vanstone J) [22] (Gray J) and see generally Gray J in R v Copeland (No 2) (2010) 108 SASR 398 at [13]-[28] and the authorities there discussed by his Honour.

22. The matters I have considered in reaching this starting point include the maximum penalties for each offence as set by parliament, an appreciation of the overall criminality of the respondent’s conduct and the need for adequate punishment, the seriousness of each of the offences as committed, the need to set a sentence which will serve to protect the public and which will promote personal and general deterrence, an appreciation of the respondent’s prior criminal record, an appreciation of the respondent’s personal circumstances and prospects for rehabilitation and the question of totality, that is, the need to provide a sentence that will not be crushing and which will encourage future rehabilitative efforts once the respondent were to be released on parole. 

1. For these six offences I would start with the one penalty of imprisonment for 16 years and six months.  I would allow a discount for the pleas of guilty but for reasons similar to those given by the trial Judge only a modest discount of one and half years.  This gives rise to a head sentence of 15 years.  I would set a non-parole period of 10 years.

2. Contrary to the approach taken by the Judge, I see no basis for ordering the sentence I would impose to operate concurrently with the six month sentence served on account of the two assaults in 2009.  The respondent should be given credit for the time spent in custody between his date of arrest for the offences presently under consideration, that is, 10 February 2010 until 3 September 2010 when he commenced to serve this six month prison term but not for the six month prison term itself.  To accommodate this I would backdate both the head sentence and non-parole period to commence 10 August 2010.  I also would confirm the intervention orders made by the Judge. 

   Conclusion

3. I would make the following orders.

   (i)Permission to appeal be granted to the Director of Public Prosecutions.

   (ii)The appeal be allowed and the sentence imposed in the District Court set aside.

   (iii)On re-sentencing, the respondent be ordered to serve a term of imprisonment for 15 years with a non-parole period of ten years both backdated to commence on 10 August 2010.