R v P, NJY
[2014] SASCFC 10
•19 February 2014
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Civil)
R v P, NJY
[2014] SASCFC 10
Judgment of The Full Court
(The Honourable Justice Vanstone, The Honourable Justice David and The Honourable Justice Parker)
19 February 2014
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - GENERALLY
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - AGE OF OFFENDER - YOUNG OFFENDER
Appeal against sentence - appellant pleaded guilty in the Youth Court to one count of Rape - appellant pleaded guilty on the basis that he was recklessly indifferent as to whether the victim was consenting - the appellant was aged 16.5 years and and the victim was aged 14 years at the time of the offending - the appellant was sentenced to a term of detention of one year, ten months and two weeks.
Whether the sentence imposed was manifestly excessive - whether the sentencing process has miscarried as a result of factual errors made by the sentencing Judge - whether the Judge erred in imposing a period of detention - whether the Judge erred in failing to suspend the sentence of detention - whether the Judge gave sufficient weight to the object and policies of the Young Offenders Act 1993 (SA).
Held per David J, dismissing the appeal (Vanstone and Parker JJ concurring):
1. The sentence imposed was appropriate having regard to the gravity and seriousness of the offence.
2. The sentencing Judge's remarks made it clear, by necessary inference, that he had appropriate regard to sections 3 and 23(4) of the Young Offenders Act 1993 (SA) and the personal circumstances of appellant.
3. The sentencing Judge's mis-characterisation of the appellant's 'reckless indifference' is of little moment and makes no difference to the gravity of the offending.
4. The sentencing Judge's description of the offending in his sentencing remarks as 'the most serious crime of rape' and his purported mistakes as to the facts of the case evince no error.
Young Offenders Act 1993 (SA) ss. 3, 23; Criminal Law Consolidation Act 1935 (SA) ss. 47, 48, referred to.
A, MC v Police (2008) 102 SASR 151, applied.
M, MA v Police [2013] SASCFC 140, considered.
R v P, NJY
[2014] SASCFC 10Full Court: Vanstone, David and Parker JJ
VANSTONE J: I agree that the appeal should be dismissed and with the reasons of David J.
DAVID J: The appellant (A) pleaded guilty to one charge of rape contrary to s 48 of the Criminal Law Consolidation Act 1935 (SA) (CLCA). At the time of the offending he was 16.5 years of age. The maximum penalty is imprisonment for life but because he was a youth the maximum penalty that could have been imposed was detention for three years.[1]
[1] Section 23(2) Young Offenders Act 1993.
The victim (V) was a 14-year old female. Neither V nor A knew each other prior to the evening in question but both attended at a party at Ridgehaven. V was feeling unwell because of the consumption of alcohol and went to lie down. Whilst lying down, A raped her by inserting his penis into her vagina.
A pleaded guilty in the Youth Court and he was sentenced to a term of detention of 22 months and two weeks. The sentencing Youth Court Judge refused to suspend that term of detention. The Judge indicated that if it wasn’t for his plea of guilty he would have been sentenced to a period of 30 months detention.
Background
In submissions on sentence counsel for A described the offending in the following terms:
The plea’s entered on the basis of recklessness. There is no suggestion of course that [V] was physically fighting the complainant off, although I think she says she pushed him off at one stage. I hasten to add that there’s absolutely no requirement that [V] fight him off, she doesn’t have to and I’m in no way suggesting that there was a fault on her own behaviour.
Nonetheless she was clearly somewhat drunk. My client instructs that when he was kissing her and she was moving beneath him in terms of wriggling around and so on and so forth, he at the time did not turn his mind to the possibility that that could indicate that she was not in fact consenting to the sexual intercourse and it’s on that basis that the plea is entered, in terms of that being a basis of recklessness. The plea is entered, also of course on the basis that the law says that he should have asked, he should have made all due inquiries with [V] as to whether she did in fact want to have sex with him. Also of course he should have noted perhaps that she was under the effect of alcohol, that she may not have been in a position where she could fully and properly indicate her wishes and again, he didn’t turn his mind to make proper inquiries in relation to that.
As matters progressed, he did in fact have sex with her and it is on that basis that the plea is entered, as I have said. After sex had completed, my client then returned into the main group of the party, spoke to his friend and left.
Counsel then outlined A’s personal background and referred to a report which was tendered to the Court pursuant to s 32 of the Young Offenders Act 1993 (SA) (Young Offenders Act). The details of that report were referred to in submissions before this Court. In short, A was born in the Sudan during that country’s civil war. His father left the family when A was quite young to go to the front to fight and A was left in a small rural agrarian village with his mother and his brother. During that time he had very little formal education. He witnessed examples of extreme violence which occurred because of the civil war. His concept of the offence of rape was that it involved weapons and severe physical violence and because of that it was put that he may not fully appreciate the severity of his behaviour.
After spending time in a refugee camp in Kenya, the family managed to come to Australia and he could be described as a relatively recent immigrant. He started school since arriving in Australia and is now studying for Year 12. He has no previous criminal history.
At sentencing submissions, the prosecutor in outlining the basis of fact alleged said:
[V] states that in the evening of Saturday, 11 August, she attended at a house party in company with her twin sister, [G], and some other friends at a party or an address in Ridgehaven. Whilst at that particular party, she had consumed some alcoholic beverages which made her feel sick and drunk.
She states that she vomited prior to going to one of the bedrooms at that address to lie down. She fell asleep while she was in that room. Whilst in the room a person unknown to her, but she had seen at the party earlier, raped her vaginally using his penis. She states that the room was dark and she was unable to see his face, but could see that he was wearing an American-style baseball cap.
She describes pushing the male away and leaving the room, and proceeding to another room in the house where she spoke to other people at the party, and thereby made the disclosures to them. She says she saw the defendant leave the room, recognised him as an African male that she had seen earlier in the yard at the party, and that no permission was given with respect to the sexual intercourse.
In his sentencing remarks the Judge said:
You contend that you were recklessly indifferent to the fact that she did not consent.
‘Reckless indifference’ is defined in s.47 of the Criminal Law Consolidation Act. Your plea is advanced on the basis (s.47(a)) that you decided to proceed to have sexual intercourse although you were aware of the probability that [V] might not be consenting. Your plea of guilty to the crime of rape is therefore appropriate.
The allegations were read out in court on 5 July. The prosecutor told me that on the evening of Saturday, 11 August 2012 [V] attended at a house party at an address at Ridgehaven. She attended with her sister. She consumed some alcohol and that had made her feel sick and intoxicated. She had vomited prior to going to one of the bedrooms at that address to lie down. She fell asleep while she was in that room.
He also referred to A’s background as set out in the s 32 report and he indicated that he must have specific regard to s 3 of the Young Offenders Act but said that, in his view, this was a case which called for specific deterrence, which I interpret to mean ‘personal’ deterrence.
He then said:
The maximum penalty that I can impose is three years detention. You must be deterred from violent sexual offences and I must make an order which promotes your development into a responsible member of the community. Your rehabilitation can best be facilitated by a sentence of detention for this most serious crime of rape.
I regard the characterisation of your conduct by your counsel as some type of poor and misguided social faux pas as quite inappropriate. Your plea of guilty, in my view, acknowledges the seriousness of your crime for which, as an adult, life imprisonment is the maximum penalty.
In my opinion, an appropriate sentence is a sentence of detention of 30 months. I would reduce that sentence by 25% as a consequence of your plea of guilty, the matters mentioned by Ms Mansfield and those matters contained within the s.32 report.
As a result, I direct that you stand convicted of the offence and that you be sentenced to one year, 10 months and two weeks detention.
For the reasons set out more fully below, I consider that the Judge, in sentencing A, had regard to and applied the principles set out in s 3 of the Young Offenders Act.
Appeal
A appeals against both the severity of the sentence of detention and the decision not to suspend whatever period of detention was imposed. In all, there are nine grounds of appeal, but they can be narrowed down to two broad categories. Firstly, that in coming to his decision as to the period of time of detention and the decision not to suspend, the sentencing Judge made a number of factual errors.
Secondly, that in the sentencing process he did not correctly apply s 3 and s 23(4) of the Young Offenders Act. I deal with the second argument first.
It is convenient at this point to note that it is not necessary for a Youth Court Judge to address each of the factors specified in s 3 of the Young Offenders Act in detail. However, as stated by the Full Court in M, MA v Police:[2]
It is important that the remarks make plain, at least by necessary inference, that the correct sentencing principles have been applied.
[2] [2013] SASCFC 140 per Gray, Anderson and Blue JJ at [12].
The ‘necessary inference’ can arise in a number of ways. For example, in M, MA v Police the Full Court was ‘fortified’ in its conclusion that the sentencing Judge in that case had not overlooked sections 3 and 23 of the Young Offenders Act ‘by the appropriateness of the sentence imposed.[3]
[3] Ibid at [18].
Section 23(4) of the Young Offenders Act reads thus:
A sentence of detention must not be imposed for an offence unless—
(a) the offender is a recidivist young offender or a serious firearm offender; or
(b) in any other case—the Court is satisfied that a sentence of a non-custodial nature would be inadequate—
(i) because of the gravity or circumstances of the offence; or
(ii) because the offence is part of a pattern of repeated offending.
Mr Lang of counsel for A argues that in applying the above section the Judge has erred because A is not a recidivist young offender or a serious firearm offender and the offence was not part of a pattern of repeated offending. As part of that argument, he also argues that inferentially the sentencing Judge did not give adequate weight to A’s personal and cultural background and his lack of any previous criminal history.
It is clear that the sentencing Judge imposed a period of unsuspended detention because of the gravity or circumstances of the offence. He made it clear in his sentencing remarks that he took a serious view of the offending because of the age, vulnerability and condition of V at the time of the offence. He has clearly weighed up those matters with the s 32 report and other matters personal to A as put to the Judge by counsel in submissions. In my view, having regard to the facts of this case, such a view was appropriate.
Counsel on appeal also argues that there are certain factual mistakes made by the sentencing Judge which clearly affect the sentence. He points out, as referred to above, that the plea was advanced on the basis of s 47(a) of the CLCA. To fully understand the argument, I set out s 47 in full, which deals with reckless indifference: -
For the purposes of this Division, a person is "recklessly indifferent to the fact that another person does not consent to an act, or has withdrawn consent to an act, if he or she—
(a) is aware of the possibility that the other person might not be consenting to the act, or has withdrawn consent to the act, but decides to proceed regardless of that possibility; or
(b) is aware of the possibility that the other person might not be consenting to the act, or has withdrawn consent to the act, but fails to take reasonable steps to ascertain whether the other person does in fact consent, or has in fact withdrawn consent, to the act before deciding to proceed; or
(c) does not give any thought as to whether or not the other person is consenting to the act, or has withdrawn consent to the act before deciding to proceed.
As I understand the argument as put by Mr Lang, in the circumstances of this case s 47(c) has more application than s 47(a). This is because the basis of A’s plea was not that he was aware of the possibility that V might not be consenting, but rather that he did not turn his mind at all to the possibility that she might not be consenting before having sexual intercourse with her.
In my view the argument has no real substance. In the context of A’s plea and subsequent sentencing in the Youth Court and his appeal, the characterisation of A’s reckless indifference is of little moment. Whether A was aware of the possibility that V was not consenting but proceeded regardless (s 47(a)), or whether he did not give any thought to whether she was consenting (s 47(c)) makes no difference to the gravity of the offending. The fact of the matter is that she was a 14-year old female affected by liquor and was either asleep or partially asleep. A took advantage of that and had penile vaginal intercourse with her without her consent.
Mr Lang also takes issue with the Judge’s description of the offending in his sentencing remarks as “this most serious crime of rape”. Mr Lang argues that that is an erroneous characterisation of the offence, as there are more serious examples of the crime of rape. In my view the argument is misconceived and the learned sentencing Judge was doing nothing more than emphasising the seriousness of the crime of rape.
Mr Lang also argues that the learned sentencing Judge erred in proceeding to sentence on the basis that V was “sleeping at the time” when the acts constituting the offence concerned occurred. Although there is a difference between the submissions of counsel and the prosecutor during the sentencing process on this topic, there was no dispute that prior to being raped V had been asleep. Whether she awoke prior to or during the rape could have made no difference to the sentencing process.
I also note that the sentencing Judge in his remarks emphasises the fact that he must have specific regard to s 3 of the Young Offenders Act. In doing that he came to the view that A’s rehabilitation will best be facilitated by a sentence of detention. I agree with the sentencing Judge that because of the seriousness of the crime that was the appropriate approach.
During argument I was concerned that the starting point of 30 months detention (before a reduction was made for the plea of guilty) was a large proportion of the maximum period of detention of three years that could be imposed. However, I adopt the comments made by Kourakis J, as he then was, in A, MC v Police:[4]
The effect of the maximum period of detention of three years imposed by s 23(2)(a) of the Act must be understood in the context of the special sentencing provisions of the Act to which I have referred. It is, I think, unlikely that Parliament contemplated that the special sentencing principles that the Act applied to young offenders might in some cases result in a sentence of detention for more than three years, but that it would nonetheless cap the period of detention that could be imposed at three years. If that were the intention then the logical consequence would be a disproportionate accumulation of sentences, that would otherwise have been imposed for various periods exceeding three years, at or close to the three year maximum. The actual practice of, and distribution of sentences in, the Youth Court does not reflect such an approach. If that approach were to be adopted the imposition of the same sentence of three years on offenders who required much greater than that for the purposes of correction would leave those young offenders who required no more than, and were sentenced to, three years for the purpose of their correction with a legitimate sense of grievance. More importantly that approach would necessarily imply that Parliament appreciated that sentences of greater than three years detention may be necessary for the purposes of the correction and guidance of some young offenders but nonetheless decided to deny the Youth Court the power to do what was necessary for their correction. In my view that approach to the statutory maximum is self contradictory and anomalous.
The preferable approach is to read the statutory maximum and the special sentencing principles of the Act together and coherently. The proscription of sentences of greater than three years detention should therefore be taken as a declaration by Parliament that three years is the maximum detention that should ever be necessary for the purpose of correction if the sentencing principles it has prescribed are properly applied to a youth who is being sentenced as such. The approach that I prefer does not render the maximum penalty that would otherwise be applicable for the particular offence charged irrelevant in the case of a young offender sentenced as such. The youth must still be taught the consequences of his conduct and those consequences will vary depending on the offence and the maximum penalty for that offence. The maximum penalty prescribed by the statutory provision creating the offence is therefore a guide, but no more than a guide, to the proportion of three year maximum that may be required for the correction and guidance of a youth who has been convicted of that offence.
[4] (2008) 102 SASR 151 at [70] and [71].
Applying those principles and using the maximum penalty of life imprisonment for the crime of rape as a guide, but no more, and bearing in mind the circumstances of this case, in my view the sentence was not manifestly excessive and no error has been demonstrated in refusing to suspend that sentence.
I would dismiss the appeal.
PARKER J: I would dismiss the appeal. I agree with the reasons of David J.
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