R v Rodney Keith Winters (Appellant) No. Sccrm-97-30 Judgment No. 6230 Number of Pages 7 Criminal Law

[1997] SASC 6230

IN THE COURT OF CRIMINAL APPEAL OF SOUTH AUSTRALIA

DOYLE CJ, MATHESON AND OLSSON JJ

Criminal law - jurisdiction, practice and procedure - judgment and punishment - appeal against sentence - felony-murder - death occurred in course of a brutal sexual assault - whether non-parole period excessive - fixation of non-parole period - factors to be taken into account - consideration and discussion of the circumstances in which a plea of guilty may be taken into account in mitigation of sentence - having regard to non-parole periods fixed in other cases, the non-parole period was excessive - appeal allowed. The Queen v Stewart (1984) 35 SASR 477; The Queen v Shannon
(1979) 21 SASR 442, applied. Bugmy v The Queen (1990) 169 CLR 525; The Queen v Shrestha (1991) 173 CLR 69; R v Lane (1990) 53 SASR 480; R v Garve (1995) 65 SASR 483, considered.

ADELAIDE, 17 June 1997 (hearing), 1 July 1997 (decision)

#DATE 1:7:1997

#ADD 10:7:1997

Appearances:

Appellant :

Counsel: Mrs M E Shaw QC

Solicitors: Anthony Kerin

Respondent R:

Counsel: Ms W J Abraham

Solicitors: DPP (SA)

Order:

DOYLE CJ

The appellant was convicted, upon his plea of guilty, of the crime of murder.

The judge imposed the mandatory sentence of life imprisonment. He fixed a non-parole period of 20 years. The head sentence and the non parole period were fixed to run from 29 August 1995, the date of the appellant's arrest. The murder was committed on 4 December 1982, almost fourteen years before the appellant was arrested.

The appellant complains that the non-parole period is excessive.

Facts

The victim, Ms Cheryl Trace, had gone to the RAAF Base at Edinburgh, north of Adelaide, to attend a disco. She went there with her sister and her friend. The appellant was a member of the RAAF. He and his wife lived off the base.

The appellant had been drinking alcohol on the day in question, and was probably significantly affected by alcohol. The appellant was at the disco and he remained at the RAAF base for some time after leaving the disco.

It is unnecessary to go into the details of what happened that night and in the early hours of the next morning. It is sufficient to say that the appellant encountered Ms Trace in the early hours of the morning. She was outside one of the residential blocks of the RAAF base. She was alone. The appellant was sentenced on the basis that, on the spur of the moment, he decided that he wanted to and would have sexual intercourse with Ms Trace.

There is no suggestion that Ms Trace had done anything that night, either earlier or just before the offence, to cause the appellant to think that she was sexually attracted to him.

The appellant grabbed Ms Trace and dragged her into an area, immediately adjacent to the place where he attacked her, in which there were some bushes. Ms Trace struggled, but the appellant was too strong. He forcibly removed nearly all of her clothing. The appellant held Ms Trace by the throat, first with one hand and then with the other. At some stage the appellant realised that Ms Trace was not moving. He was sentenced on the basis that he did not intend to kill her and did not realise at the time that she was dead. During this dreadful incident the appellant achieved penetration with his penis, but it was not full penetration. He ejaculated on Ms Trace.

The appellant left Ms Trace lying there, and in due course returned to his home. It was only later that he realised that the woman that he had raped had died. The appellant was sentenced on the basis that he was not aware at the time of the incident that he had killed Ms Trace. It was submitted on the appellant's behalf that he did not know thereafter whether he was the one that had caused her death. That is significant, as will appear shortly.

Be that as it may, the appellant left Ms Trace lying there, and returned to his home. He made no attempt to ascertain what harm he had done to her.

Ms Trace died from strangulation. That must have been caused by the appellant gripping her by the throat.

The appellant was questioned by the police on a number of occasions, after Ms Trace's body was discovered. It appears that he was under suspicion, but the police had insufficient evidence to arrest him. The appellant denied any involvement in Ms Trace's death, and indeed any knowledge of her. No one was charged with her murder.

Years later new methods for examining and comparing DNA enabled the identification of semen found on Ms Trace as coming from the appellant. In August 1995 the appellant was arrested in New South Wales, and brought to Adelaide. It was submitted to the sentencing judge that the appellant admitted to his legal advisers that he was responsible for the sexual assault on the deceased, but said that he had not intended to kill her. On the information then available, his advisers took the view that one could not exclude the possibility that someone else might have been responsible for her death. That view was taken because the report relating to DNA did not exclude the possibility of the involvement of a third person. Further reports were sought and obtained, in relation to the possibility of DNA from a person other than the appellant being present in specimens that had been taken from Ms Trace. There was some delay because of a change of counsel. Advice was obtained in October 1996 from the relevant expert that it was unlikely that a third person was involved. The appellant then admitted his guilt.

This was advanced by way of explanation for the delay between the arrest in August 1995 and the plea of guilty in October 1996. In short, the point was that while the appellant acknowledged to his solicitors his involvement in the sexual assault, it was necessary to exclude the possibility that someone else had been responsible for her death. While dealing with this topic it is relevant to note that there is no suggestion that the appellant admitted, prior to the plea of guilty, his involvement in the sexual assault.

At the time of the murder, the appellant was 25 years of age. When sentenced he was 39 years of age. He was still married and by then had 3 sons.

He had been discharged from the RAAF in 1986. This followed upon a conviction for indecent assault upon a 23 year old woman in circumstances that bore some similarity to the attack upon Ms Trace. I understand that at the time he was again interviewed by the police in relation to the death of Ms Trace, but continued to deny his involvement.

It appears that since 1986 the appellant had lead a normal life. No other convictions have been recorded against him. The change in his behaviour is probably due to a diminished alcohol consumption and to increasing maturity.

The appellant was examined by a psychiatrist. The psychiatrist reported that he suffered from no psychiatric disorder. The report reveals that apart from the offences he has committed, his life has been a normal one.

It was submitted to the sentencing judge, and there is no reason to think otherwise, that the appellant is unlikely to offend again.

On the other hand, this was a dreadful crime. True it is that the appellant did not intend to kill, and is guilty of murder only because he caused death while committing the crime of rape. That being so, he is guilty although he did not intend to kill or cause grievous bodily harm. But the fact remains that he killed Ms Trace while subjecting her to a sexually inspired attack. There is nothing that she did to provoke his behaviour. It was a violent rape. He stripped her almost naked. As I have already said, he held her by the throat to stop her struggling, and, presumably, to prevent her from screaming. He left her for dead.

The Victim Impact Statements from members of Ms Trace's family show that her death still affects them significantly. The Victim Impact Statements provide a reminder that the passage of time does not heal the harm done to family members by such crimes.

Counsel for the appellant put three arguments in support of her submission that the non-parole period was excessive. The first is that the judge failed to give proper weight to the plea of guilty. The second is that the sentencing judge failed to give proper weight to the appellant's rehabilitation. That is, that the judge failed to give proper weight to the fact that since 1986 the appellant had not offended, had lead a normal life and was now unlikely to offend again. The third argument was that in any event the non parole period was excessive having regard to non parole periods fixed in cases that bear some comparison to the present case.

Fixing a Non-Parole Period

It is necessary to bear in mind that this appeal is against the fixing of a non-parole period in relation to a sentence of imprisonment for life. The judge was fixing the period at the expiration of which the Parole Board may consider a grant of parole.

The head sentence to be served by the appellant is the mandatory term of imprisonment for life.

The matters to be considered by a judge in fixing a non-parole period were conveniently summarised by King CJ in The Queen v Stewart (1984) 35 SASR 477. He said (at 477):

"The first question which I think a judge has to ask himself on an application of this kind is: what is the minimum time which the prisoner must spend in prison in order to satisfy the punitive and deterrent and preventive purposes of punishment?"

A little later he said (at 479):

"Having considered what is the minimum term of imprisonment which is required to meet the punitive and protective purposes of punishment I must then consider whether parole is appropriate on other grounds. That involves a consideration of the likelihood of the applicant responding to parole. I must consider what prospects there are of his rehabilitation by means of parole and what prospects there are of his observing the terms of parole, responding to it and leading a good and useful life in consequence."

I do not suggest that what King CJ there said is exhaustive of the matters that require consideration. However, as I have already said, these passages conveniently summarise the approach to be taken.

It is clear from what his Honour said, that in fixing a non-parole period the Court must continue to bear in mind and give appropriate weight to the purposes for which punishment is imposed. That was recognised by the High Court in Power v The Queen (1974) 131 CLR 623 and more recently affirmed by the High Court in Bugmy v The Queen (1990) 169 CLR 525. As was said by Mason CJ and McHugh J (at 531):

"... It follows that the considerations which the sentencing judge must take into account when fixing a minimum term will be the same as those applicable to the setting of the head sentence. Obviously, the weight to be attached to these factors and the way in which they are relevant will differ due to the different purposes behind each function."

This is so, even though the purpose of the parole system is directed towards rehabilitation: The Queen v Shrestha (1991) 173 CLR 48 at 69.

It is also necessary to remember that this Court can interfere on appeal only if there has been an error of fact or of principle, or if there is a manifest disproportion between the non-parole period fixed and what is required.

The Plea of Guilty

The sentencing judge, referring to the initial plea of not guilty and the ultimate plea of guilty, said that this did the appellant little credit. He said:

"....it is rather mute testimony to the fact that, after all those years, evidence emerged which made it impossible for you successfully thereafter to maintain your innocence. In those circumstances any discount for your plea of guilty must be minimal." In this State the basis upon which credit is given for a plea of guilty was stated by King CJ in The Queen v Shannon (1979) 21 SASR 442. At the conclusion of his judgment King CJ stated certain propositions. These propositions were supported by four of the five judges who comprised the Court. It is necessary to set out only the first two of them. He said (at 452-453): "(1) A plea of guilty may be taken into account in mitigation of sentence where - (a) it results from genuine remorse, repentance or contribution, or (b) it results from a willingness to co-operate in the administration of justice by saving the expense and inconvenience of a trial, or the necessity of witnesses giving evidence, or results from some other consideration which is in the public interest; notwithstanding that the motive, or one of the motives, for such co-operation may be a desire to earn leniency, and where to allow the plea a mitigatory effect would be conductive to the public purposes which the sentencing judge is seeking to achieve. (2) A plea of guilty is not of itself a matter of mitigation where it does not result from any of the above motives, but only from a recognition of the inevitable, or is entered as the means of inducing the prosecution not to proceed with a more serious charge." Those propositions reflect the law to be applied in this Court.

I consider that the appellant was entitled to some credit for the fact that he ultimately pleaded guilty. By doing so he did save the expense and inconvenience of a trial, and the effects that that might have had upon the family of Ms Trace. On the other hand, it has to be said that his plea to some extent appears to have resulted from a recognition of the inevitable. By this I do not mean to say that a conviction was inevitable. Only that the plea was not entered until the obvious doubts had been put to rest.

The appellant is entitled to this credit even though his plea was not entered until the doubts had been put to rest. The fact of the matter is, that in the end he did co-operate in the administration of justice. He is not to be deprived of that credit by reason of the fact that he wanted to be satisfied that the involvement of a third person could be excluded before he admitted his guilt: cf R v Lane (1990) 53 SASR 480 and R v Garve (1995) 65 SASR 483.

Against this has to be set the fact that the appellant denied any involvement in the death of Ms Trace for almost 14 years. It is also necessary to give due weight to the fact that, when arrested, he did not admit his involvement in the attack upon Ms Trace, maintaining his innocence only in relation to the murder. Just as the remorse which the appellant expressed had to be tempered by reference to the fact that he had lied about his involvement for so long, the credit to which he is entitled for co-operation is to be tempered by reference to the fact that that co-operation was forthcoming only late in the piece.

Nevertheless, I would not have described the discount to which he was entitled as "minimal". To my mind the discount had to be something more than that. There is no point in trying to be precise. However, I do not consider it appropriate to interfere on the basis of something as imprecise as that. To my mind, all one can say at this stage is that the appropriateness of the non-parole period has to be considered bearing in mind that the appellant was entitled to some discount for co-operation with the authorities.

Before parting with this point, there is one other thing to be said. Usually credit for a plea of guilty is reflected in the head sentence. The non-parole period is fixed in relation to the head sentence, and the credit for the plea of guilty in a sense flows through to the non-parole period. It is not usual, in my experience, to give credit separately for the plea of guilty when fixing the non-parole period. Nevertheless, when the head sentence is one fixed by law, as it is in this case, it seems appropriate to give separate consideration to the plea of guilty at the stage of fixing the non-parole period. No submission was made to the contrary in this case.

Rehabilitation

Cases in which an offender is sentenced long after the crime is committed can cause particular difficulty.

The courts have hesitated to allow a prisoner to claim credit for good behaviour, or for a change of heart, demonstrated during a time when the prisoner should not have been at large. The problem has arisen, for example, in cases involving offenders who have absconded to escape justice. But, even in such cases, it has been accepted that the sentencing court must deal with the situation as it is at the time when sentence is passed.

In the present case, however, I can find no indication that the sentencing judge failed to make appropriate allowance for the fact that after 1986 the appellant has apparently been of good behaviour. The judge referred to the course of the appellant's life after 1986, and said that he made "every allowance" for material relating to the appellant's "previous good character." I do not consider that there is any error by the judge in relation to this matter.

Was the Non-Parole Period Excessive?

I therefore come to what, in my opinion, is the only real issue in this case. No error on the part of the judge having been demonstrated, can it be said that nevertheless the non-parole period is excessive? In answering this question one must make allowance for the credit to be given for the plea of guilty, for the fact that the appellant is a good candidate for parole and for the rehabilitation that has apparently occurred since 1986. The questions posed by King CJ in Stewart (supra) are to be addressed bearing this in mind.

We were referred to a number of cases, reference to which I found helpful, although non of them assist by way of precise comparison.

There is one point that I should deal with here. I do not accept that the mere absence of intent to kill or to cause grievous bodily harm puts this particular crime in a category of relatively low seriousness. In my opinion the absence of intent is, in terms of seriousness, balanced out by the fact that the death occurred in the course of a brutal sexual assault.

I consider, to take the second of the two questions first, that there is every likelihood of the appellant responding to parole. The passage of time enables one to make that judgment more confidently. Having regard to non-parole periods fixed in other cases, and acknowledging the limited guidance to be obtained from them, I have come to the conclusion that a non-parole period of 20 years is excessive. I consider that a non-parole period of 16 years is the minimum time which the appellant should spend in prison to satisfy the purposes of punishment.

I consider that the difference between the non-parole period fixed by the judge and that which I consider to be appropriate to be sufficient to require intervention by the Court.

Conclusion

Accordingly, I would allow the appeal, set aside the non-parole period fixed by the sentencing judge, and substitute a non-parole period of 16 years to commence from 29 August 1995.

MATHESON J

I have had the advantage of reading the reasons of Doyle CJ. I have hesitated as to whether I agree that a non-parole period of twenty years was manifestly excessive for this dreadful crime. I am not very impressed by the appellant's argument that the learned sentencing Judge gave inadequate weight to the ultimate plea of guilty. What in the end has led me to agree with the order proposed by the Chief Justice is the strong basis that exists here for concluding that the appellant is clearly a good candidate for parole.

OLSSON J

I agree.