Richard Albert Heuston v R No. SCCRM 93/111 Judgment No. 4125 Number of Pages 3 Criminal Law and Procedure

[1993] SASC 4125

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA KING CJ(1), MOHR(2) AND BOLLEN(3) JJ

CWDS
Criminal law and procedure - Sentence - rape - five offences committed on one occasion - sentence 11 years with non-parole period of 7 years - 26 year old man raping 50 year old woman after forcing his way into her home - substantial prior record - not excessive - appeal dismissed.

HRNG ADELAIDE, 16 August 1993 #DATE 16:8:1993
Counsel for appellant:     Ms P Trezise
Solicitors for appellant:    Aboriginal Legal Rights Movement
Counsel for respondent:     Ms P Kelly
Solicitors for respondent: Director of Public
   Prosecutions (SA)

ORDER
Appeal dismissed.

JUDGE1 KING CJ This is an appeal against sentences imposed upon the appellant for five crimes of rape. The sentencing judge exercised his power to fix a single sentence for the total offending and he imposed a sentence of imprisonment of 11 years with a non-parole period of seven years, both the sentence and the non-parole period to commence from 18 December 1992 when the appellant was taken into custody. The crimes were committed on 11 February 1992. 2. The appellant pleaded not guilty to the charges but was found guilty by verdict of the jury. 3. The victim of the crimes was a 50 year old married woman who resided with her husband and one of her three adult children. On the evening of the offences she was alone in the house. Her husband and daughter had left home at about 8 p.m. and she expected her husband back at about 8.45 p.m. 4. At about 8.30 p.m. the appellant came to the door of the house and when the victim went to the door he stepped in. He held his hand over her nose and mouth and forced her to the floor. 5. At that time and subsequently in the bedroom he performed sexual acts upon her. They consisted of three acts of cunnilingus and two acts of penile penetration of the victim's vagina. She was terrified and believed that she might be killed. She was also fearful of the effect upon her husband, who had a bad heart, when he returned to discover what had occurred. 6. Ms Trezise, who has made earnest submissions on behalf of the appellant, has submitted that this sentence was manifestly excessive, particularly having regard to the fact that some circumstances of aggravation which are present in other cases are not present in this case, and she made particular reference to the absence of any use of a weapon to terrify the victim into submitting to the appellant's will. 7. Nevertheless, there are in this case serious aggravating features. There is the feature that the attack occurred in the victim's own home. The security and safety of her home were violated by this attack. I think it is difficult to exaggerate the importance of this factor. 8. A woman attacked in her own home must be left with an enduring sense of insecurity which can never leave her, even when at home. This is illustrated in the present case by the fact that this attack has left effects of a psychological nature upon the victim. Moreover, her husband has been afflicted with such a fear for her security that it has been found necessary to leave their home and to find another home in another locality. 9. One consequence of this attack therefore has been that the victim has had to leave the home which she valued and to which she was attached. 10. There is also the factor that this conduct for which the appellant was sentenced involved five separate acts. True it is that they all occurred within a short space of time but, nevertheless, there were repeated acts of sexual abuse on this unfortunate lady. Moreover, those incidents were of a humiliating and distressing kind. The effects on the victim have been by no means insignificant and I have referred to one of the principal effects, namely, the necessity of leaving her valued home. 11. The appellant did not come before the sentencing judge as a person of previous good conduct who could claim some leniency from the court in that respect. 12. He was at the time of the commission of the offence 26 years of age. He has a substantial record of offending. None of it involves sexual offending and none involves violence to women. 13. Nevertheless, there are convictions for assaults and assault occasioning actual bodily harm and malicious injury. 14. The last offending occurred in 1988 and the appellant was sentenced in March 1988 to sentences of imprisonment for 18 months with a non-parole period of nine months for assault occasioning actual bodily harm, malicious injury and assaulting a police officer. 15. Since that time he has made a real effort to rehabilitate himself and overcome the disadvantages under which he has suffered as a result of his disadvantaged start in life. He is entitled to credit for the effort which he made. It is tragic that those efforts have been negated by conduct of the gravity of these crimes. 16. This court does not sentence the appellant afresh. It is concerned only to review the sentence imposed upon him by the sentencing judge in order to consider whether there has been any error or whether the sentence is manifestly excessive. No error of fact or law has been demonstrated or, indeed, suggested. 17. The sentence was undoubtedly severe, but the facts of the case merited a severe sentence. It was a violent sexual attack upon a woman in her own home, and persisted in despite her pleas to be spared. The appellant is not able to claim the benefit of a plea of guilty. 18. In all the circumstances I consider that although the sentence is a severe sentence, it is well within the scope of the sentencing judge's discretion. 19. It is to be remembered that if the appellant earns the maximum good conduct remissions, he will be released on parole in four years and nine months. That is, of course, by no means an insignificant period to have to spend in prison, but it is a moderate period having regard to the gravity of the crime which he committed against this unfortunate woman. 20. In my opinion, it has not been demonstrated that the sentence is excessive and I would dismiss the appeal.

JUDGE2 MOHR J I agree.

JUDGE3 BOLLEN J I agree.