R v Siozios - [2004] SASC 299

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v SIOZIOS
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Perry and The Honourable Justice White)
24 September 2004
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER - APPLICATIONS TO INCREASE SENTENCE
AGGRAVATED SERIOUS CRIMINAL TRESPASS - RAPE
The respondent was sentenced to 8 years imprisonment with a non-parole period of 5 years following his plea of guilty in the District Court to one count of aggravated serious criminal trespass in a place of residence and two counts of rape - the respondent, a 33 years old man, entered a unit within a group of aged care units, and violently attacked the victim, an 84 years old woman who lived there alone, pulling off her clothes and proceeding to commit vaginal and anal digital rape - the victim resisted and struggled throughout, suffered physical injuries and was left with lasting effects on her peace of mind and well-being - at the time of the offending, the respondent was on a bond pursuant to which he had been released three months earlier on a charge of indecent behaviour - on an application for leave to appeal by the DPP, held (by a majority) that the sentence under appeal failed to maintain an adequate sentencing standard for such offences - leave granted - appeal allowed - sentence increased to 11 years imprisonment with a non-parole period of 6 years and 6 months.
Criminal Law Consolidation Act 1935 s 48 and s 170(2)(c), referred to.
Dinsdale v The Queen (2000) 202 CLR 321; R v Osenkowski (1982) 30 SASR 212; Everett v The Queen (1994) 181 CLR 295; Griffiths v The Queen (1977) 137 CLR 293; R v Wilton (1981) 28 SASR 362; Elliott v The Queen (2001) 121 A Crim R 254; R v Nemer (2003) 87 SASR 168; R v Delphin (2001) 79 SASR 429; R v Barraclough (1988) 144 LSJS 183; Heuston v The Queen (1993) 171 LSJS 479, considered.

R v SIOZIOS
[2004] SASC 299
Court of Criminal Appeal: Doyle CJ, Perry and White JJ

DOYLE CJ. I agree with the orders proposed by Perry J and with his reasons. There is nothing that I wish to add.
PERRY J. I have had the benefit of reading the reasons for judgment of White J.
He has set out the circumstances of the respondent’s offending, and identified the other matters relevant to the penalty imposed.
While it was appropriate for the sentencing court to exercise its powers pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 to impose a single sentence, it is nonetheless important to recognise that the respondent was being sentenced for two serious offences. The penalty needed to reflect an adequate punishment for both offences.
For the reasons which I will come to, I regard the sentence in question as falling so far short of an adequate penalty for the offending, as to justify intervention by this Court on an appeal by the Crown.
Aggravated serious criminal trespass and rape both carry a maximum penalty of life imprisonment.
The respondent’s action in deliberately targeting the victim’s unit, which was within a group of aged units, with the intention of sexually assaulting the occupant, meant that the offence of aggravated serious criminal trespass was a serious example of its kind.
I accept that given the varied circumstances in which the offence may be committed, there can be no clear-cut tariff or sentencing standard.
But in all the circumstances, looking at the offence of aggravated serious criminal trespass discretely, I would fix a notional starting point for that offence of 3 years imprisonment.
The rapes which followed were equally serious.
They were accompanied by violence throughout. The respondent grabbed the victim as he came through the door. He kept trying to put his hand over her mouth to stop her from yelling for help. The victim kept fighting with him, and continued to struggle after she was pushed onto her bed, while her clothes were pulled off her, and after she fell onto the floor.
This was a terrifying ordeal for an elderly woman, and has had lasting effects on her peace of mind.
The fact that the commission of the offences constituted a breach of a bond imposed only three months earlier on the respondent’s conviction for indecent behaviour, is a circumstance of aggravation.
It is appropriate to fix one notional sentence for the two rapes. I would regard the minimum notional starting point for the rapes, as 10 years imprisonment.
That results in a total of 13 years.
Given that the plea of guilty came late, and followed initial denials which were recanted only after DNA evidence implicated the respondent, I would not allow a reduction of more than 2 years on account of the plea of guilty.
This would reduce the head sentence to 11 years.
I would set a non-parole period of 6 years and 6 months.
I see no need for any further reduction, either on account of the principle of totality or to avoid the possibility of overlap. The sentence and non-parole period which I have suggested are, in my view, consistently with the approach adopted when a sentence is increased by this Court, “at the lower end of the range of available sentences”.[1]
[1] Dinsdale v The Queen (2000) 202 CLR 321 per Kirby J at 341.
In considering whether it is proper to give leave to the Crown to appeal against sentence, I am not sure that the expression “shock the public conscience”[2] by reference to the sentence under appeal, should now be, or form part of, the appropriate test. There is much evidence to suggest that these days, the public conscience is easily shocked. It is an emotive expression which I tend to think ought no longer to be regarded as an appropriate test to apply in determining whether leave to appeal against sentence should be granted in favour of the Crown.
[2] R v Osenkowski (1982) 30 SASR 212 per King CJ at 213.
I think that it is better to adopt as the appropriate principle which should inform the Court in the exercise of its discretion to grant leave to appeal to the Crown, the formulation which finds expression in the joint judgment of Brennan, Deane, Dawson and Gaudron JJ in Everett v The Queen,[3] namely, that the Crown should be given leave to appeal against sentence “only in the rare and exceptional case”, which would ordinarily confine intervention by the Court of Criminal Appeal to cases where it is necessary to avoid “the kind of manifest inadequacy or inconsistency in sentencing standards” which might properly be described as constituting “error in point of principle”.[4]
[3] (1994) 181 CLR 295 at 299-300.
[4] Griffiths v The Queen (1977) 137 CLR 293 per Barwick CJ at 310, referred to with approval in Everett (supra) at 300.
Bearing that principle in mind, the disparity between what I would consider to be an appropriate sentence and the sentence imposed by the sentencing judge is so great, as to confirm my view that this is a proper case in which to grant the Crown’s application for leave to appeal. I would do so on the basis that the sentence in question is so manifestly inadequate that if left uncorrected, it would fail to maintain an adequate sentencing standard for offending of this kind.
In view of the penalty which I consider appropriate to be imposed on the substantive offending, I would not interfere with the conviction without penalty on the breach of bond.
I would order:
1.That the application for leave to appeal by the Director of Public Prosecutions be granted.
2.That the appeal be allowed and the sentence under appeal be quashed.
3.That in lieu thereof there be imposed a sentence of imprisonment of 11 years with a non-parole period of 6 years and 6 months, both to date from 13 August 2002.
WHITE J
Introduction
This is an application, pursuant to s 352(1)(iii) of the Criminal Law Consolidation Act 1935 (SA), by the Director of Public Prosecutions (“the DPP”) for leave to appeal against a sentence imposed by a Judge of the District Court in respect of offences committed on 12 August 2002.
The respondent pleaded guilty to one count of aggravated serious criminal trespass in a place of residence, in contravention of s 170(2)(c) of the Criminal Law Consolidation Act, and two counts of rape, in contravention of s 48 of the Criminal Law Consolidation Act. Each of those offences carries a maximum penalty of life imprisonment.
The sentencing Judge, using s 18A of the Criminal Law (Sentencing) Act 1988, imposed a single sentence of eight years imprisonment for those offences. The Judge fixed a non-parole period of five years and ordered that both the head sentence and the non-parole period commence from 13 August 2002, being the date the respondent was taken into custody.
By committing the offences for which he was sentenced, the respondent breached a bond to be of good behaviour which had been imposed in the Berri Magistrates Court on 17 January 2002, following a conviction for indecent behaviour. In relation to the breach of bond, the sentencing Judge recorded a conviction without penalty.
The Circumstances of the Offending
The respondent lived in the Riverland and was 33 years of age at the time when the offences were committed. The victim was an 84 year-old woman who lived in a retirement unit. She had lived there alone since the death of her husband in 1981.
At approximately 8.30 pm on 12 August 2002, the respondent, wearing a bicycle helmet, knocked on the door of the victim’s unit. Upon the victim opening the door, the respondent pushed through the door and grabbed her. He said something which suggested that he had come for sex. The victim knocked a cigarette from the respondent’s mouth. The respondent pushed the victim into her lounge room and knocked her to the ground. He picked her up and pushed her into her bedroom. They struggled, first on the bed and then on the floor. The respondent pulled the victim’s trousers and pants off. In the course of the struggle the respondent inserted his fingers into the victim’s vagina and anus. This conduct constituted the two rapes. Throughout her ordeal, the victim was shouting and attempting to fight off the respondent. The respondent tried several times to put his hand over her mouth to stop the victim from yelling, but she resisted him. Her next door neighbour, who was also elderly, did not hear her calls.
During the course of the respondent’s attack, the victim sustained cuts to her thumb and chin, scratch marks on her face, bruising and a strained back. She spent two days in hospital as a result of the attack.
In her victim impact statement, the victim explained that the experience had made it difficult for her to trust people. For several weeks after the incident she felt unable to return to her unit, and went to live with her son. Whereas previously she had felt safe and secure in her retirement unit in a community which was close and supportive, she now has a continuing sense of insecurity. It also took a long time for the victim to feel able to return to her community activity group, which she had attended regularly before the attack.
The Plea of Guilty
When interviewed by the police, the respondent denied the offences several times and gave a false account of his movements on the evening of 12 August 2002.
The respondent was arraigned on 4 November 2002, at which time he pleaded not guilty. He entered a plea of guilty on 26 May 2003 after DNA, obtained from the cigarette which had been located in the victim’s house, was shown to match his profile. The sentencing Judge allowed a 20 per cent discount in recognition of the respondent’s guilty plea and of his remorse. The respondent claimed that he was unable to remember the incident.
The Grounds of Appeal
There are five grounds of appeal, namely:
1.that the sentencing judge erred in imposing a head sentence that was manifestly inadequate;
2.that the sentencing judge erred in imposing a non-parole period that was manifestly inadequate;
3.that the sentencing judge had sentenced on the basis of a number of factual errors;
4.that the sentencing judge had erred in giving a discount on account of the appellant’s age;
5.that the sentencing judge had erred in failing to impose any penalty for the offence of indecent behaviour committed on 17 January 2002.
It is convenient to deal with the third ground of appeal first.
Errors of Fact
It is apparent that the sentencing Judge was mistaken about a number of factual matters affecting the sentence.
First, the sentencing Judge believed that at the time of the offending the appellant was “very substantially affected by alcohol”. The Judge recorded a consumption by the respondent, on 12 August 2002, of 15 vodka Cruisers, five to six glasses of Scotch whisky, at least seven to eight UDL mixed spirits, 10 stubbies of beer and another 10 schooners of beer. This level of consumption was consistent with a history which the appellant had given to a psychologist, Dr White, and to the psychiatrist, Dr Raeside. Furthermore, in a letter of apology to the victim, read in open court by the respondent on 29 September 2003, the respondent said:
“At that moment I was under the influence of drugs and alcohol and I could not remember what my actions were or remember what I had done”.
The sentencing Judge overlooked the doubts expressed by Dr Raeside as to the accuracy of the history of alcohol consumption, and the evidence in the witness statements which contradicted it. The respondent’s alcohol consumption on 12 August 2002, which had commenced at about 3.00 pm, was no more than five to six schooners of beer and possibly two UDL cans of mixed spirits. That was also the level of consumption which the respondent told to the investigating police officers. There was no evidence of intoxication at the time of the offending. Ms Powell QC, who appeared for the respondent, acknowledged the error of the sentencing Judge in this respect.
Secondly, the sentencing Judge believed that the respondent, who admitted to use of amphetamines, had amphetamine “in his system” at the time of the offending. This was directly contradicted by a toxicology report, and was, in any event, inconsistent with the history given by the respondent, that he had not used amphetamines at all in the week prior to the offending. Ms Powell QC accepted that the sentencing Judge was in error in this respect also.
Next, the sentencing Judge concluded that the offending resulted from “a drug-induced psychosis”. This conclusion was not open on the evidence. Dr Raeside thought that the most likely diagnosis was an evolving psychotic illness such as schizophrenia, but did not think that this was “operative” at the time of the offending. He accepted as a possibility that the appellant had suffered from a drug-induced psychosis in the past but did not accept that the respondent’s thinking processes were likely to have been disorganised by mental illness or past substance abuse at the time of the offending. Dr Raeside suspected that there were underlying factors in the respondent’s sexual offending which had not yet been elucidated, and which should be the subject of further evaluation while he remained in custody.
It was submitted by the DPP that the sentencing Judge was also in error in concluding that the reports of Dr Raeside and Dr White indicated that the respondent had prospects of rehabilitation. I do not accept that the sentencing Judge was in error in this respect. Dr Raeside did express the view that participation in a sexual offender treatment programme and in drug and alcohol rehabilitation programmes would be beneficial, and that it would be appropriate that the respondent undergo some psychological treatment. Dr White expressed similar views. It is true that Dr Raeside said that he was unable, in the absence of further evaluation, to make any meaningful prediction as to the risk of future offending, but that opinion did not deny the prospect of rehabilitation. In any event, it does not seem that the sentencing Judge placed much weight on the prospects of rehabilitation, saying “I only hope there is that glimmer of rehabilitation for you”.
Ground Four: the Respondent’s Age
In addition to the factual errors, the DPP also submitted that the sentencing Judge had wrongly regarded the appellant as a young man whose youth was a factor in favour of leniency. The sentencing Judge said:
“You are a relatively young man. A sentence must not be crushing. As I say, your age, your plea, and your remorse enable me to reduce your sentence by 20 per cent.”
In fact, the respondent was aged 33 at the time of the offending, and therefore beyond the age at which youth could be regarded as a mitigating factor. The sentencing Judge appears therefore to have been mistaken in this aspect of the matter but, in context, I would not regard it as a significant error.
Interference with Sentence on a Crown Appeal
Errors have been identified in the approach of the sentencing Judge. It remains to be considered whether those errors lead to the conclusion that the leave to appeal should be granted and a Crown appeal allowed.
The principles, which should guide an appellate court in the exercise of its discretion to grant leave for the Crown to appeal, are well established. The Court should grant leave only in the “rare and exceptional case” when a Crown appeal is necessary to establish some matter of principle, including the kind of manifest inadequacy which constitutes an “error in point of principle”: Everett v The Queen (1994) 181 CLR 295 at 299-300 per Brennan, Deane, Dawson and Gaudron JJ. See also R v Wilton (1981) 28 SASR 362 at 363 per King CJ; Elliott v The Queen (2001) 121 A Crim R 254 at 257 per Doyle CJ and at 259 per Gray J.
Counsel for the respondent relied on the following passage in the judgment of the Chief Justice in R v Nemer (2003) 87 SASR 168 at 172 [24]:
“The result of the principles established by the High Court is that to obtain leave to appeal against sentence, the Director must do more than satisfy the court that an error may have occurred. The court cannot grant leave to appeal, with a view to increasing a sentence, merely because it appears that an error has been made. Leave to appeal should be granted only if the allowing of the appeal would advance some wider purpose, such as to give the court an opportunity to establish a principle of sentencing law or to establish or to maintain an adequate standard of sentencing for a particular offence or kind of offence (as distinct from simply correcting an error in a particular case). In other words, the High Court has held that leave to appeal should be granted to the Director only when the allowing of the appeal is necessary to enable the court to establish relevant sentencing principles. However, even when those purposes would not be served, the court can correct a particular sentence if the sentence is so far below the appropriate range of sentence that the sentence reflects an error of principle or would “shock the public conscience”: see R v Osenkowski (1982) 30 SASR 212 at 212–213 per King CJ; Everett (at 300). Another way of expressing this point is to say that the court should not grant leave to appeal to the Director merely with a view to correcting a sentence that is too low. But if the sentence is so far below the appropriate standard that to allow the sentence to stand would shake public confidence in the administration of justice, then it may be appropriate to grant leave to appeal even though no general point of principle will be established by the case. There is a question of degree and a subjective assessment involved here, and that makes it difficult to apply this criterion.”

Even if the Court does decide that the case is an appropriate one for a grant of leave to appeal, it may decline to allow the appeal and simply indicate that the sentence is too low: R v Elliott (2001) 121 A Crim R at 258 per Doyle CJ.
Ms Powell QC submitted that, even acknowledging the factual errors of the sentencing Judge, it should be held that the sentence was nevertheless within an acceptable range of sentencing discretion, and that circumstances for interference in accordance with the above authorities did not exist. This leads to consideration of grounds one and two.
Grounds One and Two: Adequacy of the Sentence
Considerations of personal and general deterrence were paramount in the sentencing for these offences. In relation to the offence of aggravated criminal trespass in a place of residence, this is evident from R v Delphin (2001) 79 SASR 429; in the case of rape, this is evident from R v Barraclough (1988) 144 LSJS 183; Heuston v The Queen (1993) 171 LSJS 479. Elderly persons are entitled to feel safe in their own homes and to expect that a sentence will be imposed which will deter similar offending.
The three offences, in this case, were committed in the one course of conduct, which occurred over a very short period of time. The adequacy of the sentence could, in my opinion, be considered by treating the offences as a group committed in the one course of conduct: R v Elliott (2001) 121 A Crim R 254 per Nyland and Gray JJ. However, as was held in Delphin (2001) 79 SASR 429 at 436-439, it was appropriate for the offence of aggravated serious criminal trespass in a place of residence to be separately charged, and for the sentence to reflect a penalty for that offence in addition to the offences committed after entry. The sentencing Judge did not identify notional sentences appropriate for each offence. The appellant submitted that it was likely that the sentencing Judge had overlooked the need to punish the respondent for trespass, as well as for the two rapes.
In Delphin, the Court said that a sentence of between 20 and 24 months imprisonment was appropriate for a non-aggravated serious criminal trespass in a place of residence, where the intention of the offender was larceny generally. The offence of aggravated serious criminal trespass under s 170(2) is a more serious offence. It carries a maximum term of life imprisonment. The aggravating feature, in this case, was the respondent’s knowledge that the victim was present on the premises. That aggravating feature was directly relevant to the respondent’s intention to commit rape. One must be careful, however, to avoid double counting by treating the conduct of the respondent whilst in the premises for which account is to be taken in a notional separate sentence as aggravating the trespass. That is to say, account is to be taken for the appellant’s intention when trespassing, but not of what he did, once in the premises, in the fulfilment of that intention.
In this case, the appellant pushed his way into the victim’s unit, overcoming her resistance. The trespass occurred at night time and whilst he wore his bicycle helmet. In my opinion, a notional sentence for the trespass in this case would have been not less than two-and-a-half years imprisonment.
In my opinion, it would have been appropriate, in this case, to fix one sentence for both counts of rape. Both offences occurred as part of the one incident, with the second occurring very shortly after the first and without there having been any interval in the struggle. The fact that there were two incidents of digital penetration could have been appropriately dealt with by regarding that as a circumstance of aggravation.
The rapes in this case had a number of aggravating features. They took place in the victim’s own home after the respondent had forced his entry. They occurred at night. The victim of the rape was especially vulnerable, being an elderly woman living alone. The respondent struggled with the victim, causing her physical injuries although, fortunately, these do not appear to have been serious. There were, as noted above, two instances of penetration.
The respondent has a record of prior convictions dating from 1991. Although they do not appear to be serious offences, he was convicted of indecent behaviour in 1991 and again on 8 May 2002. The respondent was serving the bond imposed in respect of the latter offence at the time that the subject offending occurred. The respondent had indicated contrition for his offences and, as noted above, read, in open court, a letter of apology to his victim. The respondent had the support of his family with whom he had lived for almost the whole of his life.
In all these circumstances, I consider that a notional sentence of imprisonment of the order of about nine years would have been appropriate in respect of the two counts of rape.
This means, in my opinion, that a notional starting point for the sentence, in this case, would have been of the order of 11½ years imprisonment. The starting point of the sentencing Judge was 10 years before the discount of 20 per cent to which reference has already been made. That being so, although the sentence was lenient, I do not think that it can be said that it was manifestly inadequate or involved an erosion of sentencing standards.
Accordingly, in my opinion, even though the DPP has demonstrated errors of fact by the sentencing Judge, it is not appropriate, in this case, to grant leave to appeal.
The Breach of Bond
The final matter argued by the DPP was that the sentencing Judge had erred in failing to impose any penalty for the offence of indecent behaviour committed on 17 January 2002. As noted above, on 8 May 2002, a Magistrate had recorded a conviction for this offence but, on the respondent entering into a bond to be of good behaviour for 18 months and to comply with other conditions, no penalty was imposed. The circumstances of that offending were that the respondent had gone to the home of an acquaintance, and had requested her to go out with him. When she refused, he had moved to a corner of the yard of her home, pulled down his pants and had exposed his penis. The sentencing Judge convicted the respondent for the breach of bond but imposed no additional penalty. In the circumstance that the sentencing Judge was, at the same time, fixing a single sentence of eight years imprisonment with a non-parole period of five years, it cannot be said that that outcome was not within the range of sentencing discretion. I would not grant leave to appeal on that account.
Disposal of Application
For the reasons outlined above, I would dismiss the application for leave to appeal.