R v Slater - [2008] SADC 47

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v SLATER
[2008] SADC 47
Reasons for Ruling of His Honour Judge Millsteed
29 April 2008
CRIMINAL LAW
Defendant with long criminal history pleaded guilty to rape and aggravated serious criminal trespass - application by Director of Public Prosecutions that the defendant be declared a serious repeat offender pursuant to s20B of the Criminal Law Sentencing Act 1988 - defendant had not committed any serious offence for 16 years - application refused in the exercise of the Court's discretion under s20B.
Criminal Law (Sentencing Act) 1988 s18A, s20A(1), s20A(2)(a), s20B, s20B(1), s20B(2), s20B(2)(b)(ii); Criminal Law Consolidation Act 1935 (SA) s48, s170(1); Children's Protection and Young Offenders Act 1979 s56, referred to.
Slater v R (1984) 4 Crim R 347; Veen v The Queen (No 2) (1988) 164 CLR 465; Hoare v The Queen (1989) 167 CLR 348; R v Williams (2006) 96 SASR 226, considered.

R v SLATER
[2008] SADC 47
Introduction

The defendant, Raymond Glen Slater has pleaded guilty to offences of rape[1] and aggravated serious criminal trespass.[2] The Director of Public Prosecutions has filed an application for the defendant to be declared a serious repeat offender pursuant to s20B of the Criminal Law Sentencing Act 1988 (“the Act”). The application and submissions on sentence were heard by me on the same day.
[1] Section 48 Criminal Law Consolidation Act 1935 - maximum penalty life imprisonment.
[2] Section 170(1) Criminal Law Consolidation Act 1935 - maximum penalty life imprisonment.
Background
The defendant was born on 14 August 1963. He is now 44 years of age. He has a long criminal history which commenced when he was a juvenile. Between the ages of 12 and 17 years he committed numerous offences including the offence of robbery with violence.
On 25 May 1981 the defendant was convicted in the Supreme Court of three counts of rape committed the previous year when he was 17. On that occasion the defendant and five other youths picked up a female hitchhiker and drove her to an isolated area where each of them raped her. The defendant personally performed three acts of vaginal rape. He was sentenced on the basis that he had been the ringleader. The sentencing Judge made an order that the defendant be dealt with as an adult under the Children’s Protection and Young Offenders Act, 1979. He was sentenced to imprisonment for a period of three years and six months.
The defendant was released on parole for the rape offences on 7 April 1983. While on parole on 11 May 1983 he committed offences of attempted building break and felony and possession of housebreaking implements. On 1 November 1983, while still on parole, he raped a young woman. He had been drinking with the victim and some other young people outside the Parks Community Centre, Regency Park. He persuaded the victim to go for a walk with him. He took her into some bushes where he pushed her onto the ground, slapped her across the face and raped her. At the time he was carrying a sharpened piece of wood inside his jacket, but did not use it to threaten the victim.
On 5 May 1984 he was sentenced in the District Court for the offences committed on 11 May 1983, to imprisonment for two years and six months. On 18 May 1984 he pleaded guilty to the rape committed on 1 November 1983 and was sentenced to imprisonment for two-and-a-half years. The sentencing Judge directed that the sentence be served at the expiration of the sentence imposed in the District Court and fixed a non-parole period of three-and-a-half years. The Attorney-General appealed against the length of the sentence. The Court of Criminal Appeal[3] held that the sentence was manifestly inadequate and increased the sentence of rape to five years cumulative on the sentence imposed in the District Court. The non-parole period was extended to six years.
[3] Slater v R (1984) 4 Crim R 347
The defendant was released on parole in 1988. His parole was due to expire on 16 September 1992. On 29 October 1990 the defendant committed offences of armed robbery and robbery in company. The offences were committed at night on two women. The defendant was 27 years of age at the time. The first victim was a nurse. She left work at the Adelaide Children’s Hospital and walked to her car parked in Brougham Place, North Adelaide. The defendant got out of a vehicle which was being driven by an accomplice and tried to open the driver’s door of the victim’s car. He then kicked in the driver’s side window. The victim was showered with glass. He reached into the car and grabbed the victim by the hair. He then threatened her with a screwdriver and stole her wallet, credit card and a small amount of money.
The second offence was committed a short while later. The victim was a motorist. The defendant and his accomplice deliberately drove their motor vehicle into the rear of the victim’s car after she had stopped at an intersection in the city. At the next intersection they drove alongside the victim and the defendant remarked that her car had been damaged. The victim pulled over and inspected the rear of the car. There was no obvious damage. As she was about to get back into the car the defendant attacked her. He pushed her against the car and punched her in the head. He then stole her handbag and its contents.
The defendant pleaded guilty to the robbery offences and was sentenced in the Supreme Court on 7 November 1991. He was also sentenced for numerous offences of dishonesty that were committed in 1990 before the robberies. The additional offences comprised six counts of breaking and entering and larceny, one count of simple larceny, one count of receiving stolen property and three counts of common assault. The defendant was sentenced to a total of 14 years and 16 days imprisonment with a non-parole period of nine years.
On 15 June 1997 the defendant was released on parole. His parole expired on 31 July 2002. Upon his release from gaol the defendant resumed living with his defacto wife. The relationship commenced a short while before he was imprisoned in 1991 and produced a son. The defendant and his wife lived in a unit at Pennington. The victim of the present offences, who I shall refer to as K, occupied a neighbouring unit. The defendant and his wife became acquainted with K and formed a cordial relationship.
The defendant was unemployed for several years after his release on parole. In about 2002 he obtained employment with a clothing recycling business. He worked for that company for about two and a half years. He then obtained employment with a waste removal company. He had been working for that company for about 10 months when the present offences were committed.
In 1997 and 1998 the defendant committed offences of driving a motor vehicle without a licence and driving an unregistered vehicle. He also committed offences of assault and carry an offensive weapon. The latter offences were committed in the context of domestic disputes. He then remained crime free for the next nine years.
The present offences
In February 2007, about six weeks before the present offences, the defendant’s partner terminated their relationship and he moved out of their unit.
At about 1.00 am on 23 April 2007 the defendant broke into K’s unit through an open kitchen window. K was sleeping in her bedroom on the upper floor. She was awoken by a noise and walked down the stairs to investigate. At the time she was wearing a pair of underpants and had a towel wrapped around her.
Upon entering the lounge room she called out: “who’s there?” The defendant then came out from behind a door, holding a long bladed knife, and pushed her over a coffee table on to the floor causing her to split her lip. When K screamed the defendant threatened to kill her if she did not shut up. He called her a ‘slut’, kneed or kicked her in the back, pulled her to her feet by her hair and held the knife against her throat.
The victim was then taken at knifepoint to her bedroom where he pushed her onto the bed. At that stage she obtained her first clear view of the defendant’s face and immediately recognised him. She begged him not to hurt her. He replied: “Shut the fuck up, I have to kill you, you know who I am I have to kill you”. He then grabbed her throat with one hand and caused a shallow puncture wound to her left breast with the point of the knife which he was holding in the other hand. The injury was not inflicted intentionally. In the course of those events the defendant made sexually demeaning remarks about the victim.
The victim’s dog, which had been barking, jumped on to the bed. She was frightened that the defendant would hurt the dog and asked if she could take it outside. The defendant kicked the dog and then gave it to her. Holding her hair in one hand, and the knife in the other hand, the defendant took K to the front door and allowed her to let the dog out.
The defendant then marched her back up the stairs. At that point she asked if she could wash some blood from her injured lip. The defendant pushed her into the bathroom and allowed her to wash her face. He then said: “Let’s fucking get on with this”. He then walked with K to her bedroom and demanded that she put on some lingerie. She put on a bra but had trouble getting it on because she was frightened and her hands were shaking. The defendant threatened to stab her if she did not hurry up. Throughout the events in the bedroom, the defendant continually asserted that he had been hired by bikies to kill her because her son owed money for drugs. The assertions were untrue.
The defendant subsequently asked K if she would have sex with him. She replied that she would rather not. He commented that she was honest and added that he had always wanted to fuck her. He pulled down his tracksuit pants and underwear and forced her to perform an act of fellatio. He ejaculated into her mouth. He also fondled and licked her breasts and forced her to suck his tongue.
The defendant then placed one or both of his hands around K’s throat leaving scratch marks on her neck, and choked her to the point where she felt that she was going to pass out. He then released his grip and said: “I was supposed to knock you but you’re lucky I am not going to.” He then placed a hand inside K’s underwear and stroked her vagina. He then told her to get dressed and gave her a cigarette.
The defendant told K that he should kill her to prevent her going to the police. She promised him that she would not tell anyone about the incident and offered him money. The defendant then took K into the lounge room where she removed from her purse two $50 notes and one $20 note and gave them to him. He returned the $20 note. The defendant then took K back to her bedroom and stressed that she should not report the matter to the police. He gave back one of the $50 notes and said: “Keep this. You are a struggler like me.”
The defendant directed K to make him a cup of coffee and took her into the kitchen while holding the knife. After the coffee was made he took the victim into the lounge room and told her to put on the television. He then proceeded to talk to K while watching television and drinking coffee. He continually asserted that he had been hired to kill her and sought her assurance that she would not contact the police. He also spoke about his personal circumstances and emphasised that he had not been in gaol for 10 years. He also said that when his mother died he was “just going to go out and kill cunts.” The defendant spoke to K for about two hours. He then suddenly stood up and left carrying the knife.
The defendant was arrested and interviewed by police later that day. The defendant admitted that he broke into K’s home but claimed that he did so for the purpose of stealing her video recorder. He denied entering the unit for the purpose of sexually assaulting her. He initially said that he was aware that K was at home when he broke in because her car was parked in the backyard. But later in the interview he said that he did not believe that she was at home because she sometimes went out with her boyfriend. He denied being armed with a knife at any time whilst inside the victim’s home. He also initially denied raping K and suggested that the act of fellatio was consensual. However, he later conceded that K was scared because he had used violence against her and accepted that it was possible that she may have engaged in the act of fellatio because she feared that he would inflict further violence upon her.
When submissions were made on sentence, it was not in dispute that the victim gave a truthful and accurate description of the incident and that I should sentence the defendant on the basis of her account. It was conceded by the defendant that aspects of his statements to police were untrue, for example, his contention that he was not armed with a knife and that he was merely reckless in relation to her lack of consent.
However his counsel, Mr Kelly, told me that the defendant maintained that the rape was not premeditated and that he broke into the victim’s unit for the purpose of stealing her video recorder not knowing that she was inside the unit but was reckless in that regard. It was put to me that the defendant did not make the decision to rape the victim until after she had disturbed him. Although I have reservations about the truthfulness of these contentions, I consider them to be reasonably possible.
Psychiatric report
The defendant was interviewed on 28 August 2007, at the Adelaide Remand Centre by Dr C Raeside, a forensic psychiatrist, at the request of his legal representatives, for the purpose of determining whether he was fit to plead. Dr Raeside prepared a report, dated 31 August 2007, that was tendered by his counsel for the purposes of the application and submissions on sentence.
The report discloses that defendant has a long history of drug alcohol and drug use. He has used cannabis, tranquillisers, amphetamines, and heroin. A number of his prior offences are substance abuse related. The defendant informed Dr Raeside that following his release on parole in 1997, that he had reduced his consumption of drugs and alcohol. However, the collapse of his relationship with his partner resulted in him ‘going off the rails.’ He was heavily using amphetamines during the period leading up to the present offences though it is to be observed that he told the police that he was not intoxicated by either alcohol or drugs at the time he committed them.
Dr Raeside was of the opinion that the defendant did not suffer from any psychiatric illness and was fit to plead. He expressed the view that the defendant has an Antisocial Personality Disorder that is unlikely to respond to any psychiatric or psychological treatment. The disorder is often associated with a history of child abuse, neglect and poor educational and social opportunities.
Dr Raeside considered:
There probably had been a period of mellowing of his personality disorder in the last decade associated with advancing age, social stability and support in his relationship, and reduced drug and alcohol use. However, with the associated stress of the breakdown of this relationship Mr Slater’s underlying personality disturbance appears to have come to the fore again, with associated disinhibition and aggression due to substance abuse.
The relevant law
The common law does not sanction preventive detention. A basic principle of sentencing law is that a sentence of imprisonment should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime in order to extend the period of protection of society from the risk of the offender reoffending.[4] However, it is permissible for the sentencing discretion to be exercised having regard, amongst other matters, to the protection of society.[5]
[4] Veen v The Queen (No2) (1988) 164 CLR 465 at 472; Hoare v The Queen (1989) 167 CLR 348 at 350
[5] Veen v The Queen (No 2) (1988) 164 CLR at 473
In Veen v The Queen (No 2) Mason CJ, Brennan, Dawson and Toohey JJ identified two subsidiary principles:[6]
The first is that the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences: Director of Public Prosecutions v Ottewell. The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. (footnotes omitted)
[6] (1988) 164 CLR at 477
Pursuant to s20B(1) a person is liable to a declaration that he or she is a ‘serious repeat offender’ if the person has committed, on at least three separate occasions, an offence to which the section applies (whether or not the same offence on each occasion) and has been convicted of those offences. An offence for which an offender is to be sentenced can be included as one of the three offences committed on separate occasions (s20B(3)).
If a declaration is made the Court is not bound to ensure that the sentence it imposes for the offence is proportional to the offence (s20B(4)(a)). In other words, it may depart from the common law sentencing principle that a sentence must not exceed what is appropriate or proportional to the gravity of the crime. Furthermore, when a declaration is made any non-parole period fixed in relation to the sentence must be at least four-fifths of the length of the sentence (s20B(4)(b)).
The offences to which s20B applies include a ‘serious offence’ where either a sentence of imprisonment (other than a suspended sentence) has been imposed for the offence or if a penalty is yet to be imposed such a sentence is considered to be the appropriate penalty (s20B(2)).
The expression ‘serious offence’ is defined in s20A as follows:
serious offence means —
(a)     a serious drug offence; or
(b)     one of the following offences:
(i)an offence against the person under Part 3 of the Criminal Law Consolidation Act 1935;
(ii)    an offence of robbery or aggravated robbery;
(iii)     home invasion;
(iv)     an offence of damage to property by fire or explosives;
(v)    an offence of causing a bushfire;
(vi)a conspiracy to commit, or an attempt to commit, an offence referred to in subparagraph (i), (ii), (iii), (iv) or (v); or
(c)     an offence that is committed in circumstances in which the offender uses violence or a threat of violence for the purpose of committing the offence, in the course of committing the offence, or for the purpose of escaping from the scene of the offence.
The expression ‘home invasion’ is also defined in s20A:
home invasion means a criminal trespass committed in a place of residence while a person is lawfully present in the place and the trespasser knows of the person’s presence or is reckless about whether anyone is in the place.
The section does not apply to an offence committed by a youth (s20A(2)(a)). Furthermore, an offence is not to be regarded as a serious offence unless the maximum penalty for the offence is, or includes, imprisonment for at least five years.

The making of a declaration is discretionary. In light of the common law background and the purpose of the legislation, the power to impose a sentence that exceeds the gravity of the offence must be confined to rare and exceptional cases where it is clearly necessary to protect the public.[7]Some of the relevant factors to be considered include the number of prior offences, the age of the defendant and his or her prospects of rehabilitation, the time which has elapsed between the repeat offences, the nature of the offending and the likelihood of further reoffending.[8]
[7] R v Williams (2006) 96 SASR 226 Sulan J at 239
[8] R v Williams (supra) at 239
Application of law to facts
The defendant is liable to a declaration, under s20B, that he is a serious repeat offender. He has committed on three separate occasions a serious offence for which he received a sentence of imprisonment which was not suspended; namely, rape (1983)[9] armed robbery (1990) and robbery in company (1990).[10] The rape committed in 1981 does not qualify as a serious offence because the defendant was a youth at the time.[11] Nevertheless, the offence remains relevant for the purpose of assessing the defendant’s attitude towards the law and the issues of rehabilitation and deterrence.
[9] Rape is an offence against the person under Part 3 of the Criminal Law Consolidation Act1935 (s20A(1)) and attracts a maximum penalty in excess of five years (s20A(2)(b)
[10] Armed robbery and robbery in company are species of robbery and aggravated robbery (s20A(1))
[11] s20A(2)(a)
The offence of rape committed against K constitutes the defendant’s fourth serious offence committed on a separate occasion. A penalty is yet to be imposed for the offence, however, an unsuspended sentence of imprisonment is the appropriate penalty.[12] Being a home invasion the offence of aggravated serious criminal trespass also qualifies as a serious offence. However, because it was committed on the same occasion as the rape, it can be put to one side.
[12] s20B(2)(b)(ii)
Mr Kelly, counsel for the defendant, did not dispute that the defendant’s criminal record satisfies the legislative criteria for a declaration under s20B but contended that I should reject the prosecution’s application in the exercise of my discretion.
The defendant’s record is bad. A disturbing and odious feature of his history is that the serious offences he has perpetrated have been committed against vulnerable women at night. Furthermore, they have involved the use of weapons and violence. Nevertheless, as Mr Kelly emphasised, the defendant remained crime free for about nine years after his release on parole. Before the instant offences he had not committed a serious offence for over 16 years.
I accept Dr Raeside’s opinion that there was a mellowing of the defendant due to advancing age and social stability. His partner appears to have been a significant stabilising influence in his life. The breakdown of that relationship appears to have triggered an increase in drug consumption, aggression and a return to serious criminal conduct. However, the fact that the defendant responded in a positive manner following his release on parole, and did so for almost a decade, indicates that with appropriate social support mechanisms, drug treatment and counselling, he may again respond in a positive way.
The protection of the community, and women in particular, is an important consideration having regard to the defendant’s antecedents, and the nature of the offences committed against K. In my view, in light of the defendant’s advancing age and mellowing, a severe sentence of imprisonment that gives proper emphasis to deterrence, retribution and protection of the community but which remains proportionate to the gravity of the instant crimes, will afford society a sufficient level of protection.[13] In my view this is not one of the rare and exceptional cases where the protection of the public warrants the imposition of a sentence that is disproportionate to the gravity of the offences.
[13] The defendant was subsequently sentenced to a single sentence pursuant to s18A of the Criminal Law Sentencing Act 1988 of 10 years imprisonment with a non-parole period of 8 years
The application by the Director of Public Prosecutions is refused.