R v Smith No. Sccrm-04-100

R v SMITH
[2004] SASC 141
Application for Leave to Appeal

GRAY J This is an application for leave to appeal.
James McKenzie Smith, the applicant, pleaded guilty to the offences of aggravated serious criminal trespass in a place of residence, two counts of rape and aggravated robbery. These offences were committed on 5 July 2003. The applicant also pleaded guilty to further offences of serious criminal trespass in a place of residence and larceny. That offending occurred in February 2003.
Approach of the Sentencing Judge
The applicant was sentenced on 11 March 2004 in the District Court. The sentencing judge proceeded pursuant to section 18A of the Criminal Law (Sentencing ) Act 1988 (SA). A term of imprisonment of 15 years with a non-parole period of 11 years was imposed. In arriving at the overall sentence the sentencing judge took into account time that the applicant had spent in custody. In fixing the sentence, a reduction of 25 per cent was made on account of his pleas of guilty, his contrition and remorse.
The applicant’s offending was very serious. The victim of the 5 July 2003 offences was a woman aged in her late seventies. She had been widowed for some eight years. She had resided in her family home for more than 40 years. The applicant gained entry to the home, pushed his victim to the floor and then threatened her with a knife. The judge described the offending in the following terms:
It seems clear to me that you consciously and deliberately preyed upon this defenceless lady. You worked out that she was by herself and would not be capable of putting up any resistance. Your intention, at that stage, was to steal using the threat of the knife. You demanded money and threatened to cut her if she did not comply. You did not accept that she had little money and demanded that there should be more. [The victim] was extremely scared and frightened of what you may do to her. You told her you were on drugs and wanted money to buy more. You then raped this lady vaginally and hurt her in so doing. She was telling you to leave, but you maintained your physical and verbal aggression including threatening that you would hurt her with the knife. You did your best to make sure that she did not look at you. You tied her up, face down, on the floor. You ransacked the place looking for money and valuables. You raped her vaginally again. Again, you hurt her in so doing and you ejaculated on this occasion. Later, she realised that she was bleeding from the vagina.
…
[The victim] managed to free herself from the items which you had used to tie her up. She rang her daughter and the police were called. [The victim] sustained a number of marks, carpet burns and abrasions, severe bruises, cracked ribs and a vaginal laceration.
The judge described the impact of the crimes on the victim:
The day of your crimes against [the victim] was the last day she spent in her home. Your crimes robbed her physically, emotionally, and psychologically, as well as in a material sense. She has lost her home, independence, confidence, pride and self-worth. She now lives with her daughter and family. She is withdrawn, now needs medication to sleep and assistance with bathing and meals. She lives in constant fear.
When sentencing, the judge noted the applicant’s appalling criminal antecedents including offences of assault and assault occasioning actual bodily harm. The applicant had previously been sentenced to an immediate custodial term of imprisonment for non-aggravated serious criminal trespass. There was no prior sexual offending.
The judge had regard to the applicant’s personal antecedents, his young age at the time of the offending and his disadvantaged background. A psychological report was tendered to the judge. The author observed:
Without the assistance of a comprehensive, supervised rehabilitation program, Mr Smith’s prognosis to cease offending is poor. He suffers from severe personality psychopathology that is exacerbated by his drug and alcohol abuse problems and he has complex psychosocial problems. His rehabilitation will be lengthy (i.e. two to three years). There is a high probability that he will experience relapses of his drug and alcohol abuse problems that will place him at risk of further offending, including sex offending. My recommendations regarding Mr Smith’s rehabilitation are that he participate in a supervised, structured rehabilitation program:…
The judge discussed the applicant’s personal antecedents:
It is difficult not to feel great sympathy for you, given your background and upbringing. As a child, you were shown no respect by your parents. They did not care for you in any proper manner and they were not proper, responsible role models. You have been left with no numeracy skills and few literary skills. There was no intervention by welfare agencies as to your care. In a sense, our community has failed you but you have also failed yourself. At the same time, you have not grasped the opportunities to reform yourself when they have been given to you by the courts.
The judge had regard to the applicant’s need for rehabilitative treatment and to the difficulties he would face receiving that treatment whilst in prison. He also noted that the applicant would be likely to spend extended periods of time in protective custody whilst in prison.
As earlier observed, the applicant was also sentenced for further offending, which occurred in February 2003. This further offending consisted of serious criminal trespass at a place of residence and larceny including the breaking into a private home at night and the theft of money and computer equipment.
At the time of sentencing the applicant was subject to an order of imprisonment of 14 months imposed on 6 August 2003. A non-parole period of seven months had been fixed. The applicant had been due for release on parole on 5 March 2004, however he remained in custody. In these circumstances the judge directed that the sentence of 15 years and the non-parole period of 11 years commence on 5 March 2004.
Counsel’s Submissions
Counsel for the applicant submitted that a notional starting sentence of 20 years, before a reduction on account of the plea, contrition and remorse, was manifestly excessive and as a result the head sentence of 15 years was too great a term of imprisonment. It was further submitted that a non-parole period of a little less than three quarters of the head sentence in the circumstances of this applicant was manifestly excessive. Counsel submitted that a non-parole period of eight to nine years would have been appropriate.
Counsel for the applicant submitted that the judge had failed to give sufficient weight to the applicant’s disadvantaged background and the fact that he had not received any substantial rehabilitative treatment or supervisory assistance in the past. It was contended that it was in the interests of both the community and the applicant that he be rehabilitated. It was further suggested that a lengthier non-parole period would facilitate his rehabilitation. It was suggested that meaningful rehabilitation would not occur in prison considering the level of resources currently available. It was emphasised that the psychologist’s recommendations called for lengthy “one-on-one” rehabilitative treatment.
Counsel for the applicant did not suggest that any error of sentencing principle had occurred. Nor was it suggested that the judge had considered any irrelevant material or had overlooked any relevant matters.
Counsel for the Crown drew attention to the decision of the Court of Criminal Appeal in R v Coleman.[1]It was submitted that Coleman involved comparable offending, without the aggravating circumstance of the victim being an elderly widow. The decision in Coleman supports the conclusion that this application for leave does not have any prospect of success.
[1] (2001) 122 A Crim R 230
Conclusion
The applicant’s offending was very grave. His conduct was brutal, callous and cowardly. The term of imprisonment imposed by the sentencing judge was well within his sentencing discretion. This application for leave does not raise any arguable ground of appeal and should be dismissed. The sentence was not manifestly excessive. The fixing of a non-parole period of 11 years was well within the discretion of the sentencing judge. The applicant’s background and personal circumstances suggest that the need for personal deterrence was a material consideration.
This application for leave is dismissed.
JUDGMENT CITATIONS LISTED IN ORDER OF APPEARANCE IN JUDGMENT
1 (2001) 122 A Crim R 230

[2004] SASC 141

28 May 2004