T (SCCRM 93/123 and SCCRM 93/116) v R B v R W v R (No. 2) Nos. SCCRM 93/123, SCCRM 93/116, SCCRM 93/115, SCCRM 93/148 Judgment No. 4141 Number of Pages 4 Criminal Law and Procedure

[1993] SASC 4141

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 - homosexual rape - 18 year old victim - three rapists - abduction, repeated fellatio and penile penetration of anus, lacerations with knife to anus and face - robbery of victim in company, four rapes and one attempted rape - sentences: First Offender: 15 years' imprisonment with 13 years non-parole period, after taking 16 months in custody without benefit of remissions into account; Second Offender: 12 years 6 months' imprisonment with non-parole period 9 years commencing on date taken into custody; Third Offender: 12 years' imprisonment with non-parole period 8 1/2 years commencing on date taken into custody - appeals dismissed.

HRNG ADELAIDE, 19 August 1993 #DATE 19:8:1993
Counsel for appellant T:     Mr P A Cuthbertson
Solicitors for appellant T:    Elston and Gilchrist
Counsel for appellant B:     Ms P Trezise
Solicitors for appellant B:    Aboriginal Legal
   Rights Movement Inc
Counsel for appellant W:     Mr D F Stokes
Solicitors for appellant W:    David Stokes and
   Associates
Counsel for respondent:        Mr B J Jennings QC
Solicitors for respondent:     Director Of Public
   Prosecutions (SA)

ORDER
Appeals dismissed.

JUDGE1 KING CJ These are appeals against sentences imposed upon the appellants for a crime of robbery in company, four crimes of rape and one of attempted rape. 2. In the course of the reasons for judgment in dismissing an appeal by the appellant T against his convictions, I outlined the facts relating to the crimes for which the appellants were sentenced. 3. The appellant T was sentenced to imprisonment for 15 years, to commence at the expiration of the unexpired portion of a previous sentence which he was now required to serve by reason of the breach of the parole involved in the present crimes. That unexpired portion was 3 years, 3 months and 12 days. The total term of imprisonment therefore in consequence of the current sentence was 18 years, 3 months and 12 days. The sentencing judge fixed a non-parole period of 13 years. 4. In fixing that sentence, the learned judge took into account that the appellant T had been in custody for a period of about 16 months awaiting trial. On the basis that he was unable to earn good conduct remissions for which he would otherwise have been eligible during that period, that can be regarded as an equivalent of 2 years. One should therefore, I think, approach the sentence imposed upon T upon the basis that he was sentenced to the equivalent of 17 years' imprisonment making a total term of imprisonment of 20 years, 3 months and 12 days and that the non-parole period fixed was the equivalent of 15 years. 5. The appellant W was sentenced to imprisonment for 12 years with a non-parole period of 8 years and 6 months, both to commence on the date upon which he went into custody, namely 30 November 1991. 6. The appellant B was sentenced to imprisonment for 12 years and 6 months with a non-parole period of 9 years both to commence on that same date, 30 November 1991. 7. The learned sentencing judge made it clear that were it not for the pleas of guilty, the appellant B would have been sentence to 15 years' imprisonment and W presumably to the same period, or perhaps 6 months less. 8. The recital of the facts which were given in relation to T's appeal against conviction make it clear that this is one of the worst imaginable types of rape offences. It is compounded, moreover, by the fact that in the course of the incident a robbery was also committed. This was, of course, a rape attended and consequent upon an abduction. The total offending consisted of a series of sexual assaults upon the victim of the worst possible kind. He was treated with great violence, utter brutality and contempt. 9. A most serious aspect of the case was the use of the knife. This was not a mere use of the knife to threaten and intimidate the victim, bad as that would have been, but the knife was actually used. It was used to cut his face in order to make him open his mouth to permit fellatio, but perhaps most horrifically of all, he was told that the knife would be used to increase the size of the anus to enable penile penetration to take place. Not only was he told that, but the knife was actually used in that way and a cut was made with the knife in the region of the anus which left a 3 inch scar. 10. It was obviously a fearful experience for the 18 year old victim. What must have gone through his mind when he was told that his anus would be interfered with in that way and when he felt what was happening in that region, can scarcely be imagined. It is hardly surprising that the victim impact statement shows that he has suffered and is suffering significant psychological consequences of his terrible experience. 11. He has been left with scars both on the face and in the anal region, although the evidence does not disclose the extent, if any, of permanent scarring. 12. The maximum sentence for the crime of rape is imprisonment for life. That sentence of course must be reserved for the most serious cases. It is difficult to conceive of a case of the rape of an adult person which is more serious than the present case. No doubt there will be such cases, but the present case is reaching the limit of the seriousness which one can conceive for a single episode involving rape. There was the abduction. There were the repeated acts of sexual assault. There was the violence associated with it. There were the cuts to the face. There was the fearful act of the cutting of the anus, and there was the utter callousness and contempt shown at the end of the episode, when the already badly injured victim was further assaulted, urinated upon and left at the side of the road. 13. There is no doubt that the sentence upon T, which was the equivalent of 17 years' imprisonment for these crimes is a very severe sentence. But the nature and seriousness of the crimes, in my opinion, fully justifies the sentence which has been imposed. 14. Mr Cuthbertson has said everything that can be said on behalf of his client but, in the end, I am left in no doubt that the learned judge acted well within the scope of his sentencing discretion in imposing the severe sentence which he in fact imposed. I consider that a non-parole period of approximately three guarters of the total term of imprisonment was quite moderate, having regard to the nature of these crimes and T's record of offending. He has a very bad record. It includes a considerable amount of violence and instances of robbery with violence. In my opinion therefore, T's appeal against sentence should be dismissed. 15. In dismissing that appeal, I would add that although effectively T has been awarded two years more than the term which would have been imposed upon B if he had not pleaded guilty, I consider that that was amply justified by the difference in the seriousness of their respective records. 16. T's record, as I have already said, was very serious. This meant that he could expect no leniency on the ground of anything in the nature of previous good conduct, but more than that, it meant that the aspect of personal deterrence had to be taken into account by the judge to a greater extent. 17. I think that that consideration itself is a sufficient warrant for the difference of two years between what would have been imposed upon B if he had not pleaded guilty and the sentence which was, in fact, imposed upon T who, of course, did not have the benefit of a plea of guilty. 18. W, in my opinion, was in every way as culpable as T. It is true that he did not actually wield the knife, but he was a party to the knife being used. He did not wield the knife as T did but, on the other hand, he was the perpetrator of some of the sexual acts committed upon the victim, as T was not. 19. The justification for his receiving 12 years' imprisonment as against T's greater sentence is, first, that he has the benefit of a plea of guilty and, second, that his record of previous offending, although by no means creditable to him, is far less serious than that of T. 20. What I have said about W can be said also about B. His Honour distinguished B and T only to the extent of six months' imprisonment and that was based upon the fact that W had pleaded guilty at a very early stage and was entitled to full credit for the plea of guilty. B pleaded guilty in the end, but his plea of guilty was delayed and in the case of one count was delayed until the trial actually commenced. He was, therefore, not entitled to the same degree of leniency by reason of the plea of guilty as W was. 21. In my opinion, for the reasons which have been substantially given in the case of T, I consider that the sentences imposed upon W and B were well within the judge's sentencing discretion and I would dismiss their appeals against sentence also.

JUDGE2 MOHR J I agree.

JUDGE3 BOLLEN J I agree.