R v WALLACE

[2010] SASC 30

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v WALLACE

[2010] SASC 30

Judgment of The Court of Criminal Appeal

(The Honourable Justice Gray, The Honourable Justice Vanstone and The Honourable Justice Kourakis)

17 February 2010

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - GENERALLY

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

Application for permission to appeal against sentence - applicant was found guilty by jury verdict of two counts of false imprisonment and five counts of rape - applicant sentenced to total of 14 years and 10 months imprisonment - non parole period of 11 years and 10 months fixed - sentencing Judge brought into account a period of 14 months spent in custody - effective head sentence of 16 years - whether manifestly excessive.

Held: application for permission to appeal against sentence refused - sentence imposed within discretion of sentencing Judge - sentence proportionate to gravity of offending.

Criminal Law (Sentencing) Act 1988 (SA) s 23, referred to.
R v Garrett [1996] SASC 5652, considered.

R v WALLACE
[2010] SASC 30

Court of Criminal Appeal:       Gray, Vanstone and Kourakis JJ

THE COURT:

1. This is an application for permission to appeal against sentence.[1]

   [1]    On 6 July 2009, a Judge of this Court refused the application for permission.  The applicant has exercised his right to bring a further application before this Court.

2. On 26 July 2007, the applicant was found guilty by jury verdict of two counts of false imprisonment and five counts of rape.  The applicant was sentenced by the trial Judge on 14 November 2008 to a single head sentence with respect to all offending, of 14 years and 10 months imprisonment.  A non-parole period of 11 years and 10 months was fixed.  The sentence commenced on 14 November 2008.  In fixing the sentence, the Judge brought to account a period of 14 months that the applicant had spent in custody.  As a consequence, the effective head sentence was a term of imprisonment of 16 years. 

3. The applicant appeared in person before this Court.  He presented short oral submissions, contending that in the circumstances, the sentence imposed was manifestly excessive.  He suggested that too much weight had been given to his criminal antecedents.  He also suggested that too such emphasis had been placed on a perceived lack of contrition and remorse.  He also said that some submissions made to the Judge about the applicant’s criminal antecedents were erroneous.

4. The circumstances of the applicant’s crimes were undoubtedly very grave.  The offending involved prolonged and multiple offending against two victims.  His conduct involved falsely imprisoning his victims and subjecting them to violent, repeated and humiliating rape.

5. The applicant has an extensive criminal record extending over a period of more than 40 years involving many offences of dishonesty and violence.  In particular, the applicant had been convicted of rape and indecent assault in 1981 and of sodomy in 1983.  In 1992, he was convicted of the offence of robbery with violence and imprisoned for seven years.  In 2001, he was sentenced with respect to multiple offending, including aggravated serious criminal trespass and amphetamine offending, leading to imprisonment for a period of five years and eight months.  The criminal antecedents of the applicant preclude leniency being extended to the applicant in regard to the present offending.  The Judge referred in his remarks on sentence to some of these prior convictions and to the penalties imposed.  But he did not go to the details of the prior offending.

6. Extensive psychiatric evidence was placed before the sentencing Judge. That evidence had been prepared to enable the Court to consider an application pursuant to section 23 of the Criminal Law (Sentencing) Act 1988 (SA), with a view to seeking an order of indefinite imprisonment by reason of the applicant being unable or unwilling to control his sexual instincts. Ultimately, that application was not pursued. However, the psychiatric evidence before the Court shows that the applicant has a severe personality disorder with very poor prospects for rehabilitation. One of the reporting psychiatrists was prompted to classify the applicant in accordance with the older psychiatric literature, as a psychopath.

7. This Court has reviewed the material placed before the sentencing Judge and has given close consideration to his sentencing remarks.  The Judge referred to the lack of contrition as a factor relevant to prospects of rehabilitation.  There can be no suggestion that he impermissibly inflated the sentence on account of the applicant’s exercise of his right to be tried on the charges.  This Court is of the view that the sentence imposed was well within the discretion of the sentencing Judge.[2]  In our view, the sentence was proportionate to the gravity of the offending.  The sentence imposed properly reflected the need for both personal and general deterrence.  We consider there is no substance to the application. 

   [2]    cf. R v Garrett [1996] SASC 5652.

8. The application for permission is refused.