R v Walkuski

Case [2010] SASC 146

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v WALKUSKI

[2010] SASC 146

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Doyle, The Honourable Justice Sulan and The Honourable Justice Layton)

25 May 2010

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - TOTALITY - GENERAL PRINCIPLES

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - NATURE AND CIRCUMSTANCES OF OFFENDER - ILLNESS OR PHYSICAL DISABILITY

CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - SINGLE SENTENCE FOR MULTIPLE OFFENCES

Appellant pleaded guilty to six counts of rape with respect to one complainant and one count of aggravated serious criminal trespass and two counts of false imprisonment committed against a second complainant - sentences to be served cumulatively - appellant sentenced to 17 years' imprisonment with a non-parole period of 13 years - whether sentence imposed manifestly excessive - whether Judge erred in failing to give adequate weight to the appellant's ill-health - whether Judge erred in declining to reduce the sentence on the basis of totality - whether Judge erred in failing to exercise his discretion to impose one sentence in relation to the offences - appeal dismissed.

Criminal Law Consolidation Act 1935 (SA) s 48, s 170(1); Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
R v Nixon (1993) 66 A Crim R 83; Markarian v The Queen (2005) 228 CLR 357; R v E, AD (2005) 93 SASR 20; R v Rossi (1988) 142 LSJS 451, applied.
R v Randall-Smith and Davi (2008) 100 SASR 326; Postiglione v The Queen (1997) 189 CLR 295, discussed.
R v Skrjanc (1994) 71 A Crim R 347; R v Major (1998) 70 SASR 488; R v Symonds [1999] SASC 217; R v Caplikas (2002) 134 A Crim R 544; R v Nylander (2003) 228 LSJS 24; R v Stanbrook (1993) 65 A Crim R 107; R v Bruce and Hollick [1998] SASC 6831; Sutherland v The Queen (1994) 76 A Crim R 447; R v Smith (1987) 44 SASR 587; R v Hunter (1984) 36 SASR 101; R v Place (2002) 81 SASR 395, considered.

R v WALKUSKI
[2010] SASC 146

Court of Criminal Appeal:  Doyle CJ, Sulan and Layton JJ

  1. DOYLE CJ:          I have had the advantage of considering the reasons of Sulan J.  He has summarised the circumstances of the offences, the matters relevant to penalty, and the submissions on appeal.  I adopt his reasons in that respect.

  2. I agree with Sulan J, and for the reasons that he gives, that when the three separate sentences are considered individually, the sentences imposed are within an appropriate range for offending of the kind in question.  I need say no more about that.

  3. I turn to the question of whether the principle of totality as it is called requires a reduction in the sentences.

  4. When…

Continue reading R v Walkuski

Sign in free to access the full text

Details
AGLC
R v Walkuski [2010] SASC 146
Case
[2010] SASC 146
Decision Date

CaseChat Overview and Summary

In the case of R v Walkuski, the appellant was convicted of six counts of rape, one count of aggravated serious criminal trespass, and two counts of false imprisonment. The sentences imposed were to be served cumulatively, resulting in a total of 17 years' imprisonment with a non-parole period of 13 years. The primary issues before the court were whether the sentence was manifestly excessive, whether the judge adequately considered the appellant's ill health, whether the judge erred in not reducing the sentence based on the principle of totality, and whether the judge should have imposed a single sentence for all offences.

The court found that while the individual sentences for the crimes were within the appropriate range, the cumulative effect of sentencing for multiple offences warranted reconsideration. The court emphasized the importance of the principle of totality, which dictates that the aggregate penalty should not exceed what would be appropriate for the most serious offence. The judge's failure to reduce the overall sentence to account for the principle of totality was deemed a significant error. Additionally, the court held that the judge should have given more weight to the appellant's ill health, which could have warranted a reduction in the sentence. The court also noted that imposing separate sentences for the offences without considering the principle of totality was an error in sentencing procedure.

Ultimately, the appeal was allowed in part. The sentences for the six counts of rape, the aggravated serious criminal trespass, and the false imprisonment were set aside. The court imposed a new sentence of 13 years' imprisonment for all offences, with a non-parole period of nine years. This decision reflects a proper application of the principle of totality and consideration of the appellant's health, while maintaining a sentence that is commensurate with the gravity of the offences committed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

I grant permission to appeal on ground 3, and I would allow the appeal on that ground. I would dismiss the appeal on grounds 1 and 2.Conclusion and orders I would set aside the sentences of six years’ imprisonment for six counts of rape committed in 2001, four years’ imprisonment for the offences of serious criminal trespass and false imprisonment committed between 26 December 2007 and 29 December 2007, and seven years’ imprisonment for the further offence of false imprisonment committed between 17 and 20 February 2008. In resentencing the appellant, pursuant to s 18A of the CLSA, I would impose one sentence for all the offences of 13 years’ imprisonment, and I would impose a non-parole period of nine years’ imprisonment. LAYTON J: I have had the opportunity of reading the reasons of decision of Sulan J who described the circumstances of the offences. In short the appellant was sentenced for nine offences in respect of three types of offending: Six counts of rape committed on one occasion in the period between 1 July 2001 and 1 December 2001; Aggravated Serious Criminal Trespass in a Place of Residence committed on 27 December 2007 and also False Imprisonment committed between 26 December 2007 and 29 December 2007; and False imprisonment committed between 17 February 2008 and 20 February 2008. The maximum penalty for rape is imprisonment for life; for Aggravated Serious Criminal Trespass in a Place of Residence – imprisonment for life; and for False Imprisonment pursuant to common law there is no prescribed maximum penalty. The learned sentencing Judge imposed a sentence of six years imprisonment in respect of the six counts of rape on the one occasion. A sentence of six years imprisonment, reduced to four years, was imposed in relation to the Aggravated Serious Criminal Trespass in a Place of Residence committed in December 2007. A sentence of nine years reduced to seven years was imposed in relation to the second False Imprisonment count committed in February 2008. The Court directed the three sentences to be cumulative and the total head sentence became 17 years imprisonment and a non-parole period of 13 years was fixed. I respectfully agree with Doyle CJ and Sulan J, that when these separate sentences are considered on an individual basis, they are within the appropriate range for that offending for the reasons given by Sulan J. In so concluding, I highlight the following. With regard to the six counts of rape, the serious features were that the appellant sexually abused the complainant when she was in a sleeping or unconscious state. He not only raped her using a finger or objects, but he also recorded this on a video and made a copy of that video. These videos were not found until some time after the event when the appellant’s place of residence was searched by reason of other circumstances. The first knowledge that the victim had of the rapes was when she was told about the existence of a video and was then required to view the video for the purposes of the prosecution of the appellant.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.