R v Power

R v POWER
[2003] SASC 288
Court of Criminal Appeal: Doyle CJ, Besanko and Sulan JJ

DOYLE CJ I agree with the Orders proposed by Sulan J, and with the reasons that he gives.
BESANKO J I agree with the orders proposed by Sulan J and with his Honour’s reasons for those orders.
SULAN J The appellant pleaded guilty to two counts of indecent assault, one count of attempted serious criminal trespass in a place of residence, two counts of attempted aggravated serious criminal trespass in a place of residence, three counts of gross indecency and one count of rape. The offences occurred over a period from the 12 January 2000 to 23 September 2001. The appellant was sentenced to fifteen years imprisonment with a non-parole period of ten years. He has appealed against the sentence.
The offences
The first offence relates to an indecent assault on 12 January 2000 at South Brighton. A woman had alighted from a train at Brighton Station at around 7 p.m. that evening. As she was walking home she noticed the appellant walking behind her. The appellant who was walking on the other side of the street crossed to the side where she was walking. The woman became worried and she decided to cross the street. As she was stepping off the footpath, the appellant grabbed her from behind and pushed her to the ground. He fell on top of her. On falling the woman grazed her shoulder. She screamed and the appellant immediately got off her. The appellant then crossed to the other side of the road and begged the woman to show him her underpants. She refused. The appellant said that he knew where she lived. In her victim impact statement the woman described her physical injuries which included grazing to the left side of her body and general soreness. The result of the attack and the appellant’s statement that he knew where the victim lived has caused her to suffer panic attacks and fear for her and her family’s safety.
The second and third counts relate to offences that occurred on 16 September 2001. As to count 2, the occupier of premises at Glenelg returned to her residence on Sunday 16 September 2001, having been away for two days. On returning she observed that a leadlight panel next to the front door had been broken.
As to the third count, at about 9 a.m. on 16 September 2001, the occupier of premises at Glenelg North was in bed when she heard a knock on the front door of her flat. A short time later, she heard a window smash. She went outside to investigate and saw the appellant walking towards her. He was carrying a hoe. When the woman challenged him, he put down the hoe and walked away.
The fourth and fifth counts occurred around 8am on Monday 17 September 2001. The occupier of a unit at Darlington heard a noise at her front door. She looked out of the window and observed the appellant standing at the corner of her unit. When the woman first observed the appellant, she noticed that his tongue was hanging out of his mouth. The woman became fearful and ran downstairs to ensure that the front door was locked. She looked through the lounge room window and saw the appellant standing outside that window. She noticed that the appellant still had his tongue hanging out of his mouth, and that he was masturbating. The woman told the appellant to go away or she would call the police. The appellant continued to masturbate. The woman called the police. When she returned to the window the appellant had disappeared.
As to count six at about 8 a.m. on 22 September 2001 a woman was jogging in an easterly direction along Anzac Highway at Glenelg North when she heard a male voice. She looked in the direction of the voice and she saw the appellant standing alongside some low shrubs in the driveway of a house. She observed that he had his pants undone and was stroking his semi-erect penis. She continued to run.
Counts seven, eight and nine occurred on the morning of Sunday 23 September 2001. The first of these counts occurred at about 8 a.m. on 23 September when a woman was walking her dog on Augusta Street at Glenelg East. She saw the appellant cross the street just before her. She was about to turn into Miller Street when she observed the appellant in the front yard of a house on the corner of Augusta and Miller Street. The appellant had his pants pulled down and was fondling his exposed penis. The appellant continued to walk down Miller Street as the woman was walking along Miller Street. She could see that the appellant had his hands in his genital region and he was moving his hands around in that area. When the woman told the appellant to “get lost”, he ran off.
Count eight occurred on the same Sunday morning when a woman was leaving the front yard of her premises at Glenelg East. She was about to ride off on her bicycle when she observed the appellant. He had his genitals exposed and was holding them in his right hand and masturbating himself. The woman told him to go away but the appellant walked towards her. She climbed on to her bicycle and started to ride away. The appellant grabbed her. She was petrified and screamed. The appellant still had his right hand on his genitals which were exposed. She broke free from the appellant’s hold and rode away.
The final offence, count nine, occurred that Sunday morning. A young woman was walking towards Jetty Road to visit her mother at Glenelg East. She was walking along a side street when she was approached by a man in his motor vehicle warning her to be careful. He told her that a male had recently ‘hassled’ his wife. About ten minutes later, she observed the appellant standing in the front yard of a house on the opposite side of the street. He was behaving strangely. She observed him grabbing his groin. She ran to get away. A moment later, she heard the pounding of feet behind her. She began to turn around and the appellant grabbed her tracksuit pants with both hands and pulled them down around her knees. He pulled down the side of her underpants about halfway down her left leg. He then began touching her vaginal area in a rough manner. The woman next felt the appellant’s fingers in her vagina. She could also feel the front of the appellant’s body pressed against the left side of her back. The woman lost her balance and fell to the ground. The appellant fell on top of her. She was screaming for help and was trying to move his body off her. The appellant then stood up and moved away from her. She walked away.
The victim was a young university student. She was severely traumatised by the attack. The incident has had a dramatic effect upon her and she has had difficulty coping with everyday life. She is uncertain about her future and how she will manage personal relationships. Her victim impact statement described in detail the anguish and disruption her life has suffered as a result of the appellant’s attack upon her.
Factors relevant to sentencing
The appellant was 21 years of age at the time when he was sentenced. The first offence was committed when he was 18 years of age and the last offence in time was committed just before the appellant turned 20. The appellant had a number of previous court appearances. In December 2000, he was convicted of numerous offences, including property offences, motor vehicle offences and two counts of indecent behaviour. The indecent behaviour offences had involved him exposing his penis and masturbating in public. He received a sentence of fifteen months imprisonment. In 2001 he was convicted of offences of dishonesty for which he received a sentence of eight months imprisonment. At the time that these offences were committed, the appellant was on parole. The sentencing judge took this into account as an aggravating factor.
The appellant left home at the age of sixteen, partly because he suffered physical abuse by his brothers and his parents. Dr Jack White, a psychologist, prepared a comprehensive report in which he observed that after the appellant had left home he had abused various drugs, including alcohol, marijuana, amphetamines and heroin. Those factors contributed to the appellant coming into conflict with the criminal law. Dr White concluded that the appellant requires considerable psychological intervention and he was concerned that, because of lack of resources within the prison system, the extent of psychological assistance necessary would not be available. Even with appropriate intervention, Dr White was of the view there was a high risk of the appellant re-offending.
The sentence
In determining the sentence the sentencing judge imposed notional sentences for each of the offences. He imposed the following notional sentences:
·“With respect to Count One, being the charge of Indecent Assault, I impose a term of imprisonment of two years and three months. But for your plea of guilty, I would have imposed a term of imprisonment of two years and nine months.
·With respect to Count Two, being the offence of Attempted Serious Criminal Trespass, I impose a term of imprisonment of fourteen months. But for your plea of guilty, I would have imposed a term of imprisonment of eighteen months.
·With respect to Count Three, being the offence of Attempted Aggravated Serious Criminal Trespass in a Place of Residence, I impose a term of imprisonment of sixteen months. But for your plea of guilty, I would have imposed a term of imprisonment of twenty months.
·With respect to Count Four, being the offence of Attempted Aggravated Serious Criminal Trespass in a Place of Residence, I impose a term of imprisonment of sixteen months. But for your plea of guilty, I would have imposed a term of imprisonment of twenty months.
·With respect to Count Five, being the offence of Gross Indecency, I impose a term of imprisonment of four months. But for your plea of guilty, I would have imposed a term of imprisonment of five months. I note with respect to this offence, and the other offences of gross indecency, that the maximum term of imprisonment is six months.
·With respect to Count Six, being the offence of Gross Indecency, I impose a term of imprisonment of four months. But for your plea of guilty, I would have imposed a term of imprisonment of five months.
·With respect to Count Seven, being the offence of Gross Indecency, I impose a term of imprisonment of four months. But for your plea of guilty, I would have imposed a term of imprisonment of five months.
·With respect to Count Eight, being the offence of Indecent Assault, I impose a term of imprisonment of two years and seven months. But for your plea of guilty, I would have imposed a term of imprisonment of three years and three months.
·With respect to Count Nine, the Offence of Rape, I impose a term of imprisonment of seven years and three months. But for your plea of guilty, I would have imposed a term of imprisonment of nine years.”
The sentencing judge went on to say:
“The total of these notional sentences is sixteen years and eleven months. If I were to sentence you for each individual count, then each sentence would need to be cumulative on the other.
Having reached this point, I need to consider the sentencing principle of Totality. I need to consider whether the total sentence is so disproportionate to the overall offending so as to be unduly crushing. One of the factors which needs to be taken into account is the age of the offender. You are a young man. I am prepared to apply the totality principle here to reduce your sentence of imprisonment to fifteen years.”
The approach of the sentencing judge was in accord with the decision in R v Place.[1] In a joint judgment, Doyle CJ, Prior, Lander and Martin JJ, with whom Gray J agreed, said:
“In our opinion this Court should exercise the power contained in s 18A of the Sentencing Act to fix a single penalty in respect of all offending. However, in order to arrive at that single penalty, it is appropriate to have regard to the individual sentences that would have been fixed if the power in s 18A did not exist. Ultimately, the question of totality must be addressed. In order to reach the point of considering totality, the preferred approach is to determine the appropriate sentences for the individual offences and to decide whether, totality aside, the circumstances would ordinarily require those sentences to be concurrent or cumulative. In the absence of s 18A, after taking into account totality and determining the appropriate total period to be served, that period could be achieved by making the sentences wholly or partially concurrent: Pearce v The Queen (1988) 194 CLR 610; Director of Public Prosecutions v Grabovac [1998] 1 VR 664 at 676-681.
Generally speaking, where a number of offences are committed over a period of time, there is justification for imposing greater penalties for the later offences.”[2]
[1] (2002) 81 SASR 395
[2] Ibid at 432
The approach in this case gives transparency to the manner in which the sentencing judge has approached his task. However, that approach can in some instances be of limited value, particularly in cases where by imposing individual notional penalties, the final penalty arrived at is so high that it creates an air of unreality. The consequence of imposing notional sentences where an offender commits a series of serious offences can result in a head sentence which has little bearing to the final sentence imposed when all the relevant factors, including the principle of totality, are taken into account. If the approach of identifying notional sentences for each offence or group of offences and arriving at an overall head sentence is adopted, then the sentencing judge is required to step back and consider the sentence taking into consideration all relevant matters. That consideration may result in the sentence being substantially reduced because the end result of accumulating the individual sentences leads to a sentence which, given the personal circumstances of the offender, is crushing.
The individual notional sentences that were identified by the sentencing judge, although at the high end of the scale, were within the limits that a court might impose for the offending in this case. It was within the discretion of the sentencing judge to accumulate notional sentences in order to arrive at a total sentence for the offending: R v Place. The judge was then required to determine the final sentence having regard to the principle of totality. At this stage the judge is required to exercise an intuitive judgment, calling on his or her experience: R v Cameron.[3] There is no formula which will assist a sentencing judge in arriving at the final sentence.
[3] (2002) 209 CLR 339, 362 per Kirby J
The appeal
In Dinsdale v The Queen the High Court confirmed the principle in House v The King that before an appellate court will interfere an error must have been demonstrated.[4] If there is no identifiable error an error may be inferred if the appellate court considers that, upon the facts, the result is unreasonable or plainly unjust. Gleeson CJ and Hayne J confirmed the court’s approach in House:
“In such a case although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred”.[5]
[4] (2000) 202 CLR 321
[5] Ibid at 325 referring to House v The King (1936) 55 CLR 499 at 505
I have indicated that the approach of the sentencing judge in considering each offence, and applying a notional sentence, was in accord with the approach approved in Place.
The appellant complains that the sentencing judge was in error in treating each offence separately and accumulating the notional sentences. The question whether sentences should be cumulative or concurrent is determined by considering the circumstances of each case. If the offending forms part of a course of conduct, then it may be appropriate to make the sentences concurrent. However, since the enactment of s 18A of the Criminal Law (Sentencing) Act 1988 (SA) which empowers a sentencing judge to pass one sentence having regard to the totality of the offender’s conduct, the question of whether sentences should be concurrent or cumulative has less relevance. So long as an offender is not penalised twice for the same conduct, the question of whether sentences should be cumulative or concurrent has no material relevance if the final sentence is within the permissible range for the offending. In this case, it cannot be said that the judge was in error in calculating the sentence by accumulating the sentences for each offence.
The offending was very serious offending and must result in a substantial sentence. The public are entitled to be protected from conduct of this kind. General deterrence must play a significant part in determining the sentence.
However, the appellant is very young. In my view, the sentencing judge did not give sufficient weight to the appellant’s age. Further, the appellant had demonstrated some insight into his offending and expressed a wish to receive help to overcome his psychological problems. I consider a sentence of fifteen years for a twenty year old offender for these offences to be a crushing sentence. It must be recognised that the appellant will eventually be released. In my view, a sentence of fifteen years imprisonment could well leave the appellant feeling hopeless and make it more difficult to return him to society when the sentence has been served. I consider that the head sentence is manifestly excessive.
I would impose a head sentence of twelve years imprisonment. In reducing the head sentence, I do not seek to minimise the seriousness of the offending. In my view a sentence of twelve years for a relatively young offender is a significant sentence.
The non-parole period
The sentencing judge determined a non-parole period of ten years, which is two-thirds of the head sentence. In setting a non-parole period, there is no “norm” as to the proportion of the head sentence which the non-parole period should represent. I refer in particular to the observations of King CJ with whom Cox and Olsson JJ concurred in R v Creed where he observed that there was no practice of which the court was aware by which a non-parole period was normally set at two-thirds the head sentence.[6] King CJ said:
“Every case has to be considered upon its own facts and a non-parole period has to be fixed in every case which reflects the considerations which are peculiar to the case. In some cases, the punitive, deterrent and preventive aspects will play an important part, in others the prospects of rehabilitation by means of parole will play a much greater part. Nothing in the nature of a norm can be acceptable.”[7]
[6] (1985) 37 SASR 566
[7] Ibid at 569
In setting the non-parole period the sentencing judge had regard to the appellant’s youth and that the appellant had expressed a determination to rehabilitate himself.
Although the sentencing judge referred to the report of Dr White and the fact that it is proposed by the government that there be a rehabilitation program established within the prison system for the purpose of treating sex offenders, the judge nevertheless imposed a substantial non-parole period of ten years. In setting a non-parole period the court should have regard to the prospects of rehabilitation. As with the head sentence, a non-parole period should not be crushing to the point where it may have a negative effect upon a person’s hopes for the future and his rehabilitation.
There are circumstances where a court may see little prospect that a person will respond to parole in a positive and useful way. In those circumstances, the court may well set a non-parole period which is a high percentage of the head sentence. On the other hand, there are circumstances in which the court may set a lesser non-parole period, particularly in the case of a lengthy sentence, so that an assessment can be made by the Parole Board after a reasonable period to determine whether the prisoner has progressed sufficiently on the path to rehabilitation to be entitled to be released. Nevertheless, the non-parole period must also reflect the requirement of punishment and general and personal deterrence.

The Parole Board can assess the prisoner’s progress from time to time and will have updated reports from which an informed decision can be made about the appellant’s return to the community. If, when the question of parole arises, the Parole Board considers that the prisoner is still a danger and there is a high risk of him re-offending, then the Parole Board can refuse to release the prisoner.
I would reduce the non-parole period to seven years. I would allow the appeal and substitute a sentence of twelve years imprisonment with a non-parole period of seven years.
I emphasise that the appellant will only be released if the Parole Board considers it appropriate to do so. If not, he may be required to serve the whole or a substantial part of the head sentence.

JUDGMENT CITATIONS
LISTED IN ORDER OF APPEARANCE IN JUDGMENT
[1] (2002) 81 SASR 395
2 Ibid at 432
3 (2002) 209 CLR 339, 362 per Kirby J
4 (2000) 202 CLR 321
5 Ibid at 325 referring to House v The King (1936) 55 CLR 499 at 505
6 (1985) 37 SASR 566
7 Ibid at 569

[2003] SASC 288

26 August 2003