R v Smith - [2005] SASC 212

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v SMITH
Judgment of The Court of Criminal Appeal
(The Honourable Justice Sulan, The Honourable Justice White and The Honourable Justice Layton)
10 June 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - GENERAL PRINCIPLES
Appeal against sentence - appellant pleaded guilty to one count of aggravated serious criminal trespass in a place of residence, two counts of rape and one count of aggravated robbery - appellant also sentenced in the District Court for offences of serious criminal trespass in a place of residence and larceny, transferred from the Magistrates Court - appellant sentenced to one penalty of fifteen years imprisonment with a non-parole period of eleven years -whether head sentence was manifestly excessive - whether non-parole period was manifestly excessive - whether appellant had sufficient opportunities in the past to assist his rehabilitation - whether adequate weight was given to the appellant's personal circumstances - whether too much weight was given to general and personal deterrence - whether the sentencing judge was sitting as a magistrate when sentencing for the matters transferred from the Magistrates Court - head sentence and non-parole periods not manifestly excessive - protection of the community of paramount importance in the case of repeat offenders - all relevant factors were considered by the sentencing judge - appeal dismissed.
Criminal Law (Sentencing) Act 1988 s 18A, s 19; Magistrates Act 1983 (SA) s 22, referred to.
Brock v Attorney-General (1984) 36 SASR 161; Dinsdale v The Queen (2000) 202 CLR 321; R v Coleman (2001) 122 A Crim R 230; R v Delphin (2001) 79 SASR 429; R v Gibbs (2004) 89 SASR 30; R v Siozios [2004] SASC 299; Tarasenko v Boylan (1992) 58 SASR 587, considered.

R v SMITH
[2005] SASC 212
Court of Criminal Appeal: Sulan, White and Layton JJ

SULAN and LAYTON JJ: The appellant appeals against a sentence imposed by the District Court on 11 March 2004. The appellant pleaded guilty to aggravated serious criminal trespass in a place of residence, two counts of rape and one count of aggravated robbery. All of the offences were committed late in the afternoon on 5 July 2003.
At the request of the appellant, two additional offences of serious criminal trespass in a place of residence and larceny, committed in February 2003, were transferred from the Magistrates Court for sentence by the judge.
The judge imposed one penalty of fifteen years imprisonment, pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (“the Act”). He fixed a non-parole period of eleven years. The sentence was to commence on 5 March 2004, which was the date upon which the appellant had completed serving the balance of a sentence resulting from a breach of parole.
The offences of aggravated serious criminal trespass in a place of residence, rape and aggravated robbery all carry a maximum sentence of life imprisonment. The offences of serious criminal trespass in a place of residence and larceny carry maximum penalties of fifteen years and five years respectively.
Counsel for the appellant submitted that, in dealing with the matters transferred from the Magistrates Court, the judge was sitting as a magistrate, and was therefore bound by s 19 of the Act which limits the power of a magistrate in sentencing a person to a maximum of two years imprisonment. Section 22 of the Act provides inter alia that a District Court judge may exercise the jurisdiction, powers or functions of a magistrate.
The Court of Criminal Appeal considered the powers of a District Court judge in Tarasenko v Boylan.[1] King CJ held that a District Court judge need not sit as the Magistrates Court when hearing proceedings instituted in the Magistrates Court. A judge may, under s 22 of the Magistrates Act 1983 exercise the powers and jurisdiction of a lower court, however the judge does so whilst sitting as a District Court judge. The judge therefore retains all the powers and jurisdiction of a District Court judge.[2]
[1] (1992) 58 SASR 587
[2] Ibid at 591
In R v Gibbs[3] the Court of Criminal Appeal considered an appeal where matters had been transferred to the District Court from the Magistrates Court. Perry J, with whom Mullighan J agreed on this point, held that a District Court judge is not bound by s 19 of the Act when exercising the powers and functions of a magistrate. When determining matters instituted in the Magistrates Court, Perry J considered that the District Court judge does not sit as a magistrate.[4]
[3] (2004) 89 SASR 30
[4] Ibid at [35]-[38] Doyle CJ did not address this question
The issue was discussed in R v Delphin.[5] There the court held that where a magistrate transfers a matter to the District Court without the consent of the defendant, the judge must give notice to the defendant if she or he is considering a sentence greater than two years. The defendant has an expectation that the maximum sentence imposed will be two years imprisonment, and must therefore be given the opportunity to make submissions in rebuttal if the judge is considering otherwise.[6] Delphin is not authority for the proposition that the judge in this case was sitting as a magistrate when dealing with the transferred files. This was not a situation in which the matter had been transferred to the District Court without the consent of the appellant. Further, there is nothing before this Court to suggest that the District Court judge imposed a sentence greater than two years for the offences which had been transferred. The judge imposed one sentence, pursuant to s 18A of the Act, and it is that sentence against which the appellant appeals. The judge did not indicate a sentence for each offence. It is the overall sentence which is to be considered.
[5] (2001) 79 SASR 429
[6] Ibid at [57]-[59]
In his grounds of appeal, the appellant complains that the sentence imposed was manifestly excessive, and that the judge failed to give adequate weight to personal factors.
The offences
Mrs O is a seventy seven year old woman, who lived alone at premises at Elizabeth South. She had resided at the premises for more than forty years, having been widowed approximately seven years before the offences occurred. She was a fiercely independent person.
In the afternoon of Saturday, 5 July 2003, she was at home alone when there was a knock on the front door. The appellant was at the door and he asked her if she wanted to look at a catalogue. She took the catalogue and locked the door. About ten minutes later, there was again a knock on the door. The appellant was at the door and said he had forgotten to put something with the book. She returned to the doorway with the catalogue, and opened the door. The appellant pushed her inside. He threatened her with a knife, and told her to get down on the floor. She fell to the ground in the lounge room. He demanded money, and she told him that she only had $50 and that she would give it to him. She went to the bedroom and took $50 from her purse. The appellant did not accept Mrs O’s word. He said he wanted more money, that he was on drugs and needed more money to buy more drugs. He told her to lie on the bed and keep her face down. He threatened to cut her throat. He then told her to kneel on the bed. He pulled her clothes off and tied her up. While she was on the bed, the appellant raped her vaginally. The appellant then continued to threaten her and demand more money. He ransacked the home looking for money. He raped her vaginally again. On that occasion, he ejaculated. The appellant took valuables, including money, jewellery and a VCR.
After the appellant had left, Mrs O was bleeding from the vagina. She freed herself and telephoned her daughter. The police were called. She had sustained a number of injuries, including carpet burns, abrasions, severe bruising, cracked ribs and a vaginal laceration. She has been terrified by her ordeal and has never returned to her home.
Victim impact statement
Members of Mrs O’s family prepared a victim impact statement which graphically describes the effect that the crimes have had upon Mrs O and her family. She had enjoyed her home and her garden. She enjoyed having her children, grandchildren and great-grandchildren visit her. She was a happy, free spirit.
The crimes caused her to be angry, embarrassed, ashamed, fearful and disbelieving of the situation. She feels helpless, and has completely lost interest in herself. She now lives with a daughter and son-in-law. She requires assistance with bathing and with eating. The family describe her as having reverted to a child.
The crimes have caused enormous distress to Mrs O and her family. Members of her family consider that her life will never be the same again. She now lives in one room. She has lost all her confidence and sense of self-worth, and she lives in constant fear.
In his sentencing remarks, the judge said:
The offence of aggravated serious criminal trespass is at the upper end of a scale of seriousness for offences of that type. It is the type of offending that this new offence was designed to embrace. You gained entry by a trick, armed with a knife. You threatened and manhandled this elderly lady because you wanted more money for drugs. This offence, like each of the rapes and aggravated robbery, carry maximum penalties of life imprisonment.
Taken by themselves, the rape offences are also extremely serious. You threatened and then brutalised this elderly lady, not once, but twice. Her age is an aggravating factor, as is the fact that you injured her. It should not be forgotten that your overall offending against her extended over about half an hour. You terrified her at the time. She remains fearful and is now a different person than before.
The aggravated robbery was the last in the series of offences. You used the knife to threaten her whereby she eventually gave you what little money she had and you took other valuables.
The appellant also pleaded guilty to the offence of serious criminal trespass in a place of residence on 14 February 2003, and to larceny on that date. He broke into premises at night and stole money and computer equipment. Those premises were unoccupied.
The appellant’s antecedents
The appellant was twenty five years of age at the time he was sentenced. He has a long record of previous court appearances. The judge described his antecedents as appalling.
His first appearance was in December 1989 in the Children’s Court for the offence of larceny. Between that date and January 1994, he was before the Court on at least six occasions charged with numerous breaking and entering and larceny offences, damaging property and illegal use of a motor vehicle. On all of these occasions, he was released without conviction. In December 1994, at the Elizabeth Children’s Court, he received a sentence of eight months imprisonment for an offence of breaking and entering and larceny. The sentence was suspended upon the appellant entering into a bond to be of good behaviour for one year. In March 1995, he committed offences of possessing cannabis and damaging property. He received a bond, with community service and supervision. In September 1995, he was again before the Adelaide Children’s Court, having been convicted of breaking and entering offences and property offences committed in May and September 1995. He received nine months detention. After that date, there were numerous other appearances in the Magistrates Court for offences of assault occasioning actual bodily harm, assault, fighting and other street offences.
His first sentence of imprisonment as an adult was in May 1999, when he received three months imprisonment for offences of larceny and interfering with a motor vehicle. In June 1999, he was convicted of indecent assault. He appeared before the Elizabeth Magistrates Court on a number of occasions. On 30 June 2000, he received a six month sentence of imprisonment which was suspended upon him entering into a bond to be of good behaviour for two years. Conditions imposed included supervision. On 16 February 2001, he received a sentence of two years imprisonment with a non-parole period of sixteen months. He had breached the bond within four months of it having been imposed. On 6 August 2003, he received a sentence of fourteen months imprisonment, with a non-parole period of seven months, for an offence of non-aggravated serious criminal trespass and larceny. We have dealt with his antecedents in some detail because his counsel submitted that he had not had sufficient opportunities in the past to assist his rehabilitation. We will deal with that submission later in our reasons.
The appellant’s background and psychological profile
The judge had regard to a psychological report of Mr Richard Balfour. The appellant is an Aboriginal man whose parents are from the Yorke Peninsular area. The appellant has primarily been raised in the Adelaide northern suburbs, but has lived alternatively between Adelaide and Port Germaine. He had a difficult and dysfunctional home life as a child. When he was six years old, he was sexually abused by a seventeen-year-old female cousin. He was also sexually abused from the age of about ten until he was twelve by a female family friend, who was aged in her twenties. He was psychologically abused during his childhood by members of his family. His father was an alcoholic. The appellant began to run away from home from about the age of ten. He did not obtain an adequate education. He has never had employment, and is a chronic drug and alcohol abuser.
Mr Balfour concluded that the appellant is of low intelligence, with poor literacy and numeracy skills. He has low self-esteem and poor social and living skills. His life has been dominated by his drug and alcohol abuse and associated offending. Mr Balfour concluded that his presentation and personal history is consistent with a diagnosis of a personality disorder, characterised by anti-social traits. Mr Balfour characterised the rape as being opportunistic. He concluded that, due to the sexual abuse, the appellant may have developed a sexual attraction to older women. He is in need of rehabilitation for his sexual offending. The rehabilitation program recommended by Mr Balfour needs to be supervised and structured. It is an extensive long-term program involving counselling, psychiatric and psychological intervention, an education program, employment training and close supervision. Mr Balfour noted that there were no rehabilitation services for serious sex offenders in South Australian gaols.
Mr Balfour concluded that, without the assistance of a comprehensive supervised rehabilitation program, the appellant’s prognosis to cease offending is poor. Any rehabilitation is likely to be lengthy, and he is at a high risk of further offending.
The sentence
The judge took into account the appellant’s age. He noted that the appellant has been given many chances in the past and appears not to have taken them. The judge regarded general deterrence and personal deterrence as significant. He considered the appellant’s prospects of rehabilitation. He noted that the one-on-one program which the appellant requires to have any chance of rehabilitation was not available whilst in custody. The judge had little confidence in the appellant’s future prospects of rehabilitation.
The judge concluded that but for the appellant’s pleas of guilty, he would have imposed a sentence of twenty years imprisonment. He reduced the sentence to fifteen years to take into account the pleas, contrition and remorse, and he fixed a non-parole period of eleven years.
Appellant’s submissions
Counsel for the appellant submitted that the starting point of twenty years imprisonment is excessive. The appellant further complains that the non-parole period of eleven years is manifestly excessive.
Counsel submitted that there has been a failure to give adequate weight to the applicant’s dysfunctional background, and a failure to provide adequate opportunities to the appellant for rehabilitation. She submitted that the appellant has been offered little supervision over the years, and he has been required to fend for himself from an early age, having suffered abuse within his family. Counsel accepted that general and personal deterrence were important factors in this case, but argued that too much weight had been given to them and inadequate weight had been given to factors personal to the appellant including, in particular, his rehabilitation. It was submitted that the sentence and non-parole period were crushing and gave the appellant little hope in the future.
The appellant’s counsel relied on the decision of R v Siozios.[7] That was a successful appeal by the Director of Public Prosecutions against a sentence of eight years imprisonment, with a non-parole period of five years imposed for offences of aggravated serious criminal trespass and rape. In that case, the offender was thirty three years of age. He knocked on the door of the victim, an eighty four year old woman, who lived in a retirement unit. When she answered the door, he pushed her and knocked her to the ground. He then pushed her into the bedroom. He removed her trousers and digitally raped her, both vaginally and anally. She received injuries in the attack.
[7] [2004] SASC 299
The impact of the offences on the victim in that case did not appear to be as grave as it was for Mrs O, although she continued to have a sense of insecurity, and it took a long time for her to return to community activities.
In respect of the two counts of rape, Perry J, with whom Doyle CJ agreed, said that he would have fixed a notional sentence for the two rapes of ten years imprisonment, and a further three years for the offence of serious criminal trespass. He would have allowed a reduction of two years on account of the offender’s plea of guilty, and concluded that the appeal should be allowed and the sentence increased to eleven years, with a six year, six month non-parole period.
White J was in dissent. However, he regarded considerations of personal and general deterrence as paramount in sentencing for these types of offences. He was satisfied that the sentence was inadequate, but he did not think it was an appropriate case for leave.
In Siozios’s case, there was no offence of robbery. The victim was not threatened with a weapon. The personal circumstances of the defendant were distinguishable. There were no additional offences which the court had to consider. Further, it was a prosecution appeal. When increasing a sentence, the Court of Criminal Appeal has regard to the principle of double jeopardy, and increased sentences are usually at the lower end of the range of sentences for the offending.
Siozios’s case is distinguishable on a number of grounds and does not support counsel’s submission that the sentence in this case was manifestly excessive.
In R v Coleman[8], Mr Coleman had pleaded guilty to counts of serious criminal trespass in a place of residence, armed robbery, common assault, and two counts of rape. He had entered the house of a thirty three year old woman, who lived with her son. He confronted her and threatened her with a knife. He was looking for money. He forced the victim’s six year old son to lay face down on the bed. He then walked the victim to a nearby house. He assaulted her when she attempted to pull way, and then he raped her by having vaginal sexual intercourse and committing fellatio upon her. Mr Coleman was an Aboriginal man, aged twenty two years at the time of his offending. He had a lengthy criminal record involving offences of breaking and entering and burglary. His antecedents were not dissimilar to the antecedents of the appellant. Mr Coleman was sentenced to fifteen years imprisonment, with a non-parole period of eleven years imprisonment.
[8] (2001) 122 A Crim R 230

Mr Coleman’s psychological profile was very similar to that of the appellant. He came from a dysfunctional, violent home. His education ceased at about the age of twelve. His intelligence was assessed at being within the mental retardation range, and around the bottom three per cent of the general population. He also abused alcohol and drugs. His rehabilitation needs were likely to be long-term and significant. The only explanation for his conduct that he could offer was that at the time he was under the influence of alcohol and drugs.
The facts and circumstances of Coleman’s case have many significant similarities to the circumstances of this case. Counsel for the appellant sought to distinguish Coleman on the ground that, in that case the Court concluded that there had been an attempt to rehabilitate him for approximately a decade, without success. Counsel submitted that his prospects of rehabilitation were less than the appellant’s, because the appellant had not had the opportunities afforded to Mr Coleman. We do not agree. In Coleman¸ Gray J, with whom Olsson and Perry JJ agreed, said:
For approximately a decade, the courts have attempted to rehabilitate the appellant using almost every sentencing option available. Bonds, fines and suspended sentences have been imposed. However nothing has deterred him from continuing to offend. Since the appellant became an adult his offences have become more violent.[9]
[9] Ibid at 233 [12]
The comments of Gray J are apposite. The appellant has, over many years, been afforded many sentencing options, including bonds, fines and suspended sentences. He has received supervision and he has been released on parole, which includes supervision. Nothing seems to have worked. He has continued to re-offend, and the offending on this occasion is more serious than his past offending.
Comparative sentences
Counsel for the appellant produced a schedule of sentences in other cases of rape and sexual assault. She submitted that the sentence in this case was at the top end of the range of sentences for offences of this nature. Whilst comparative sentences may assist a court in the sentencing process, they can only be of assistance if the circumstances of the cases are relevantly similar to those under consideration. In this case, the schedule is of limited assistance as the circumstances of the offending and the offenders appear to vary significantly. It is difficult to discern any real pattern of sentences from the cases referred to in the schedule, save that in cases of violent rapes upon strangers, the sentences imposed are lengthy.
Head sentence and non-parole period
The judge had regard to the appellant’s antecedents. He considered the report of the psychologist, Mr Balfour. He correctly had reservations about the appellant’s prospects of rehabilitation. He was correct in his conclusion that the appellant had had opportunities to reform himself in the past and had not been able to avail himself of them. He had regard to all relevant factors in determining the sentence. No error has been demonstrated. The sentence of fifteen years is not manifestly excessive.
Counsel submitted that the non-parole period of eleven years is too great a proportion of the head sentence. She submitted that the non-parole period was crushing, and is manifestly excessive.
In determining a non-parole period, the judge is to have regard to the same factors to which he has had regard in imposing the head sentence. The setting of the non-parole period is within the discretion of the judge. In imposing a non-parole period of eleven years, the judge had regard to all relevant factors.
No error of approach by the judge has been demonstrated. It cannot be said that the sentence is unreasonably or plainly unjust. It cannot be inferred that the judge has failed to properly exercise his discretion, which would justify a review on the ground that a substantial error has occurred.[10]
[10] See Dinsdale v The Queen (2000) 202 CLR 321 at 324 and 329
In Brock v Attorney-General[11], King CJ discussed the policy of the legislature in providing for the setting of non-parole periods. He said:
Whilst this Court has frequently said that sentencing judges should have regard to the policy of the legislature in instituting and maintaining a system of parole and should, therefore, in framing sentences allow proper scope for the operation of parole, nevertheless the question arises in every case as to whether the particular person who is sentenced is a proper candidate for parole, and if so, the extent to which parole can play a useful part in the sentence which is being posed. Everything depends upon the circumstances of the case and on the circumstances of the particular offender.
This Court has said on more than one occasion that there may well be cases in which the circumstances indicate that parole has no part to play in the sentence which is being framed, or that if it has a part to play it should be a relatively minor part.
The sentencing Judge has to ask himself, first, what is the minimum period of imprisonment which the purposes of punishment require that the offender serve in custody, and then what are the prospects of the particular offender responding to parole.[12]
[11] (1984) 36 SASR 161
[12] Ibid at 162
The appellant comes from a dysfunctional family background characterised by violence, alcoholism, neglect and sexual abuse from early childhood. He has suffered all forms of social and educational deprivation and is a serious drug user. His own personal violent life is in turn being inflicted by him on others.
The appellant has a lengthy criminal record. He has received bonds and a suspended sentence in the past. He has breached bonds and breached parole.
The judge and Mr Balfour both had concerns about the appellant’s long-term prospects of rehabilitation. The psychologist regarded the probability of his re-offending to be high, unless there is a structured rehabilitation program, importantly including a sex offenders’ program, put into place. Notwithstanding the appellant’s grim background which has regrettably spawned his own violent behaviour, the protection of the community is of paramount importance in the case of repeat offenders. The attack on a defenceless woman aged seventy seven years in her home, living alone, was a most serious act of violence. The conduct was premeditated and manipulative. The appellant attended at the victim’s home under a pretext of selling magazines. He ascertained that the occupant was an older female, he returned some short time later, he forced his way inside her home and threatened, robbed and raped his defenceless victim. The sentence and non-parole period must reflect the seriousness of the offending. There is little that can be said to mitigate the appellant’s conduct, and little that can be positively put about his future prospects.
By reason of the above matters, parole in this case has less of a part to play than in many other cases. However, in considering parole, an additional factor to bear in mind is the effect on the appellant of a long custodial sentence. This factor was considered by the psychologist, who assessed the appellant to have displayed evidence of institutionalisation and that any mental health problems arising from his being in custody, could be adequately managed by the Prison Medical Services with the assistance of James Nash House.
The judge was well aware of the appellant’s sad and deprived background. The judge had regard to all relevant factors. Although the non-parole period is a relatively high proportion of the head sentence, it has not in all of the circumstances been demonstrated to be manifestly excessive.
The appeal is dismissed.
WHITE J: In my opinion, this appeal should be dismissed. I agree generally with the reasons of Sulan and Layton JJ.
Although both the head sentence and the non-parole period imposed by the sentencing Judge are severe, the circumstances of the appellant’s offending, and its effect on his victim, mean that they should not be regarded as unduly severe. Ms O’Connor, who appeared for the appellant, accepted that his offending, in particular the rapes, could properly be regarded as being in the category of the worst types of those offences.
I add one further comment. Both counsel seem to accept that some appropriate rehabilitation programmes, including appropriate sexual offender treatment programmes, are unlikely to be available to the appellant whilst in custody. The appellant, in particular, submitted that he may not be able to access appropriate programmes until his release on parole. If that be the case, it is a matter for regret but it does not, in my opinion, support a conclusion that the sentence imposed is manifestly excessive.