R v Nedza

Case [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…

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R v Nedza [2013] SASCFC 142
Case
[2013] SASCFC 142
Decision Date

CaseChat Overview and Summary

The Director of Public Prosecutions applied for permission to appeal against a sentence imposed in the District Court upon the respondent, R v Nedza. The principal ground of appeal was that the head sentence and non-parole period were manifestly inadequate. The respondent had pleaded guilty to two counts of rape and one count of creating a risk of harm, which involved pouring petrol down the victim's throat. He also pleaded guilty to attempting to dissuade a witness, breaching a bail condition, and breaching a domestic violence restraining order.

The court was required to determine whether the original sentence imposed by the District Court was manifestly inadequate, and if so, to resentence the respondent. This involved considering the gravity of the offences, the maximum penalties available, and the principle of totality in sentencing. The court also had to consider the fact that the respondent had committed the offences while on bail and subject to a domestic violence restraining order.

The appellate court found that the original sentence was indeed inadequate. Applying the principle of totality, the court determined that a head sentence of 15 years imprisonment, with a non-parole period of 10 years, was appropriate. This sentence was to be served cumulatively upon a prior six-month sentence imposed by the Magistrates Court, and was backdated to commence on 10 August 2010. The court confirmed the intervention orders made by the sentencing judge.

Orders

Orders of the court

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Background

Background to the litigation

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 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. 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. 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. 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. 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. 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. 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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

GRAY J NICHOLSON J
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 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. STANLEY J: I agree with the orders proposed by Gray J. I agree with the reasons of Gray J and Nicholson J. Introduction and background 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. 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. 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.

Ratio Decidendi

Legal Principle Established

Established by: GRAY J, NICHOLSON J

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