R v RADFORD - [2013] SASCFC 73

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v RADFORD
[2013] SASCFC 73
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Anderson and The Honourable Justice David)
8 August 2013
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - FACTUAL BASIS FOR SENTENCE - GENERALLY
Appellant charged with two counts of rape following a DNA match some sixteen years after the alleged offending. The appellant initially pleaded not guilty to the charges and only entered a guilty plea to both charges following a voir dire hearing. The appellant was sentenced to a single term of imprisonment of 16 years with a non-parole term of 10 years. The appellant now appeals against that sentence on the basis that it is manifestly excessive. The appellant argues that (1) a starting head sentence of 18 years was manifestly excessive, (2) that the sentencing Judge did not give enough discount for the appellant's guilty pleas, and (3) the sentencing Judge did not give enough consideration to the appellant's contrition and rehabilitation.
Held per the Court:
(1) The sentence in the current case is not manifestly excessive. Although it is severe, it is justifiably so. There is no sentencing tariff for the offence of rape and each case must be dealt with on its own merits. The offending in relation to each count was violent, it targeted vulnerable girls in isolated circumstances, and it involved two separate occasions with two separate acts of preparation and premeditation.
(2) The sentencing Judge's discount for the appellant's guilty pleas was adequate as they were only entered at a late stage, following a voir dire hearing.
(3) The sentencing Judge rejected the submission that the appellant could not remember the events which were the subject of the charges. There is no basis upon which to challenge the sentencing Judge's finding regarding the appellant's claimed loss of memory.
(4) Appeal dismissed.
Criminal Law Consolidation Act 1935 (SA) s 48; Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
R v Colbert [1998] SASC 6801, considered.

R v RADFORD
[2013] SASCFC 73
Court of Criminal Appeal: Kourakis CJ, Anderson and David JJ

KOURAKIS CJ: I agree that the appeal should be dismissed for the reasons given by David J. I wish only to make the following observations about the level of sentences imposed for offences of this kind.
In R v Colbert,[1] this Court dismissed an appeal by the Director of Public Prosecutions against a head sentence of nine years imposed on convictions for the attempted rape and gross indecency committed on a 15-year-old victim on one occasion, and convictions for two offences of rape committed on a 22‑year‑old victim on another occasion. The offences were predatory in nature, committed on victims who were stalked after leaving public transport stops. The appellant had pleaded guilty. The sentence was described as “a very merciful one” but permission for a crown appeal was withheld. The authorities discussed in R v Colbert show that the head sentence of 16 years imposed on the appellant is perhaps at the high end of, but does not fall outside, the range of sentences for predatory offences of sexual violence.
[1] [1998] SASC 6801.
In particular, I would emphasise that there is very little reason to make sentences for offences of this kind against different victims concurrent, even partially, unless it is necessary to do so because the accumulation of the multiple sentences results in a crushing overall sentence. That is certainly not the case here having regard to the Judge’s adverse findings about the appellant’s remorse and prospects of rehabilitation to which the reasons of Anderson J refer.
ANDERSON J: I agree that the appeal in this matter should be dismissed. I agree with the reasons of David J.
David J refers to the claimed loss of memory relating to both offences and the sentencing judge’s rejection of the submission based on his lack of memory.
The sentencing judge said:
In circumstances where the prosecution case against you was very strong, the delay in entering your pleas does you little credit, indeed it reflects what I am satisfied is a position that you are still not prepared to fully accept responsibility for your acts.
You have pleaded guilty and apologised to your victims, but in that letter of apology, and indeed through your counsel at court, you said you had no memory whatsoever of committing these offences. You do not dispute the circumstances of each of them and accept responsibility, but you do not recall them.
The most that you have proffered by way of explanation is that at those times you were greatly distressed over the break-up of a relationship with your girlfriend, who had entered into a relationship with your best friend. At the time you were sleeping very little, you were anxious and drinking too much.
In submissions I queried your claimed loss of memory, the absence of any psychiatric diagnosis tending to explain it and, as well, Dr Tomasic’s observation with respect to other offending in your life that there was ‘a pattern of describing the charges’ - the other charges that is – ‘as unjustified, disowning his responsibility and stating that most were either the fault of others or a misinterpretation of his actions’. She went on in that report to say: ‘His prognosis in relation to his mental state is good as he has no significant history and no current mental illness. His prognosis in relation to offending is difficult to comment on given his report of a lack of recall of the offences, and apart from the scientific evidence his belief that he did not commit them’.
The judge then concluded as follows:
Against that background and in circumstances where your offending in each case exhibited a measure of planning and significant levels of violence, I am simply not prepared to accept your claim of no recollection and that conclusion impacts upon your asserted levels of remorse and rehabilitation since the time of these offences.
From my reading of the papers provided to the judge and including the comments of Dr Tomasic the judge has properly dealt with the submission based on the appellant’s level of remorse and therefore the effects on his chances of rehabilitation.
For the reasons expressed by David J and particularly having regard to those circumstances I do not consider that either the head sentence or the non‑parole period are manifestly excessive.
DAVID J: The appellant was charged on a District Court Information with two counts of rape contrary to s 48 of the Criminal Law Consolidation Act 1935 (SA). The first count alleged that he raped a 14 year old girl (“V”) at Reynella on 4 February 1994. The second count alleged that he raped another girl (“V2”) aged 15 years at Bedford Park in November 1994.
Through a DNA match he was arrested by police on 24 May 2009. He initially pleaded not guilty to both charges in the District Court and his trial commenced on 21 November 2011. After a voir dire hearing, the appellant entered pleas of guilty to both charges on 22 November 2011.
Pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA), the appellant was sentenced to one term of 16 years imprisonment with a non‑parole period of 10 years. The sentencing Judge started with a head sentence of 18 years but reduced that to 16 years, giving him a reduction in the vicinity of 12 per cent for his pleas of guilty.
The appellant now appeals against the severity of that sentence on the basis that it was manifestly excessive.
The offending
The two offences were quite separate. Count 1 involved V, who was a 14 year old girl. She had gone to the local primary school to play basketball in the late afternoon. Once at the school, she sat on a bench for about 10 minutes, as the basketball hoops were not set up, and watched a couple of boys riding their bikes. She then decided to go home, but before doing so she heard a noise in the vicinity of the classrooms. Thinking it was the younger children riding around, she decided to go between the classrooms and say goodbye. She saw a man with a stocking over his face, with holes cut over his eyes and mouth. It was the appellant.
The appellant grabbed V with both of his hands and pulled her towards him. He grabbed her around her body before pushing her to the ground. V was scared and crying. The appellant sat on top of her stomach and forcefully taped her wrists. V struggled and managed to pull her taped hands apart and stand up, pushing the appellant backwards. However, the appellant grabbed her from behind and pushed her forward causing V to fall on her stomach. The appellant then rolled V onto her back and taped her mouth. He then pulled down her shorts and underpants and raped her by pushing his penis into her vagina. The appellant told V to keep her eyes shut until he had gone. Once he departed, V ran home.
The second count occurred in late November 1994. V2, who was a 15 year old girl at the time, walked from her home to Marion Shopping Centre late in the evening to check her bank account and buy some take away food. After purchasing some food at a service station at about 1.00am, V2 commenced to walk home taking a short cut across a paddock. She could hear someone walking behind her, so she took hold of a pocket knife she had in her jeans pocket. While doing so, she turned around and saw the appellant, whose face was covered with a balaclava, running at her. She screamed.
The appellant grabbed the top of both her hands and pushed her to the ground. He put his left hand over her mouth to try and keep her quiet. V2 bit his hand and a struggle ensued. V2 screamed and struggled but was unable to use the knife. The appellant forcefully pinned her to the ground, undid her jeans and raped her by placing his finger in her vagina and then his penis. When he had finished he then left.
The appellant’s personal circumstances
At the time of sentence, the appellant was aged 44 years. He was born in Adelaide. At the time of the offences, he was 26 years and 27 years of age and was arrested following DNA evidence obtained from him by the police in 2009.
Since the offending he has lived with his partner of 15 years and they have two children, twins aged 11 years. He has maintained that he has no memory of the charges but accepts his responsibility because of the presence of his DNA on swabs taken from both victims. He has continued to claim such loss of memory of the offending when interviewed by a psychiatrist, Dr Maria Tomasic,[2] before the sentencing Judge, and now before this Court. It is to be noted that Dr Tomasic could find no psychiatric basis for such a lack of memory.
[2] Report of Dr Maria Tomasic dated 3 March 2012.
The appellant had a number of unrelated convictions both before and after this offending.
Appeal
There is one ground of appeal for which permission was granted by a single Judge of this Court, namely that the sentence was manifestly excessive.
Counsel for the appellant on appeal argues that the starting point of 18 years imprisonment was so high as to be manifestly excessive. He also argues as part of that ground that the sentencing Judge did not give enough discount for the appellant’s pleas of guilty and that he did not give adequate consideration to the appellant’s contrition and rehabilitation.
In my view, the discount for the pleas was appropriate. As the sentencing Judge pointed out, there were initial pleas of not guilty and late pleas were only entered following a voir dire hearing.
I also find that there is no basis upon which to challenge the sentencing Judge’s rejection of the submission that the appellant could not remember the events which were the subject of the charges. There is no support from Dr Tomasic and no explanation as to how he could not remember such vivid events. That finding justifies the sentencing Judge’s scepticism as to the extent of the appellant’s contrition and rehabilitation.
Ultimately, those sentencing details are not, of themselves, determinative in this matter. The real issue is whether the sentence is manifestly excessive.
It is trite to say that there is no tariff for the crime of rape and that each case must be dealt with on its own merits. The sentence is severe but, in my view, justifiably so. The offending in each case was violent. It targeted vulnerable young girls in isolated circumstances. It involved two separate occasions with two separate acts of preparation, each well thought out and premeditated. In my view, the sentence is not manifestly excessive.
Conclusion
I would dismiss the appeal.