White (a pseudonym) v The Queen

Case [2022] SASCA 78

Supreme Court of South Australia

(Court of Appeal: Criminal)

WHITE (A PSEUDONYM) v THE QUEEN

[2022] SASCA 78

Judgment of the Court of Appeal  

(The Honourable Justice Lovell, the Honourable Justice Bleby and the Honourable Justice David)

11 August 2022

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

CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES - CONCURRENT SENTENCES

CRIMINAL LAW - SENTENCE - PURPOSE OF SENTENCE - DETERRENCE

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

CRIMINAL LAW - SENTENCE - INTERPRETATION OF SENTENCING PROVISIONS

The applicant pleaded guilty to four counts of Rape and one count of Spiking of Food or Beverages. The victim of his offending was his former wife. The offending, which occurred over a period of approximately 15 months, involved the applicant drugging the complainant's night-time beverages before engaging in non-consensual sexual acts with her while she slept.

The applicant was sentenced to 14 years and three months' imprisonment. As a serious repeat offender, he was liable to receive a non-parole period four-fifths of the head sentence imposed.

The applicant seeks permission to appeal against sentence on four grounds; namely, that the sentencing Judge erred in his consideration of personal and general deterrence; that the sentencing Judge failed to consider and apply totality; that the sentence imposed was manifestly excessive; and that the sentencing Judge erred when exercising his discretion pursuant to s 54(1) of the Sentencing Act 2017.

Held, per the Court, granting permission to appeal on all grounds but dismissing the appeal:

1.   The sentencing Judge's use of the word "acknowledge" rather than "accept" in considering submissions as to personal deterrence and community protection does not establish a process error. In context, it is clear his Honour accepted the relevant submission.

2.   The failure to mention the principle of totality does not in itself indicate that the sentencing Judge failed to consider the topic, nor does it establish a process error.

3.   The applicant's offending cannot be described as a single course of conduct. The degree of concurrency applied by the sentencing Judge was appropriate.

4.   The sentence imposed by the sentencing Judge was not manifestly excessive.

5. The three purposes expressed in s 54(2)(a) of the Sentencing Act 2017 are not mutually exclusive; the weight to be given to any particular factor or purpose depends on the circumstances before the court.

6. The personal circumstances of the applicant are not so exceptional as to outweigh the paramount consideration of protecting the safety of the community and personal and general deterrence for the purposes of s 54(2)(a) of the Sentencing Act 2017.

Sentencing Act 2017 (SA) s 54(2)(a), s 54(2)(b), s 44, s 26, s 12; Criminal Law (Sentencing) Act 1988 (SA) s 18A; Criminal Law Consolidation Act 1935 (SA) s 310; Prisons Act 1936 (SA) s 24(1); Prisons Act 1869 (SA) s 32; Correctional Services Act 1982 (SA)…

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White (a pseudonym) v The Queen [2022] SASCA 78
Case
[2022] SASCA 78
Decision Date

CaseChat Overview and Summary

The applicant, White, appealed against a sentence imposed by a sentencing judge in South Australia. The dispute concerned the sentencing judge's refusal to declare that the applicant should not be sentenced as a serious repeat offender, which had the consequence of mandating a minimum non-parole period of four-fifths of the head sentence.

The central legal issue before the appellate court was whether the sentencing judge erred in exercising their discretion by refusing to make the declaration under section 54 of the Sentencing Act 2017 (SA). This declaration would have exempted the applicant from the mandatory minimum non-parole period applicable to serious repeat offenders.

The court reasoned that the sentencing judge was required to consider the applicant's request for a declaration under s 54 of the Act. The judge's refusal to make the declaration was based on the applicant's status as a serious repeat offender and the nature of the offending, which involved drugging his wife and engaging in sexual acts without her consent. The court affirmed that the sentencing judge had properly applied the relevant provisions of the Sentencing Act and had not erred in their exercise of discretion.

Consequently, the appellate court dismissed the applicant's appeal. The sentence imposed, including the non-parole period calculated as four-fifths of the head sentence, was upheld.

Orders

Orders of the court

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Background

Background to the litigation

The applicant fell to be sentenced as a serious repeat offender. As a serious repeat offender, the sentencing Judge was required by the Sentencing Act 2017 (SA) (“the Act”) to impose a non-parole period of no less than four-fifths of the head sentence unless the applicant could persuade the sentencing Judge to declare, pursuant to s 54 of the Act, that he not sentence the applicant as a serious repeat offender. The applicant requested that the sentencing Judge exercise his discretion and make such a declaration. The sentencing Judge refused to make that declaration. He therefore imposed a non-parole period equal to four-fifths of the head sentence; namely, 11 years and five months. The applicant complains that the sentencing Judge erred in not making the declaration.Background The complainant and the applicant lived together as husband and wife […]. Prior to the offending they had been married for 27 years. In about 2015, the complainant decided she no longer wished to have sexual intercourse with the applicant. The complainant discussed that directly with the applicant. They agreed that sexual contact between them was limited to masturbation of the applicant’s penis by the complainant. Despite that agreement, the applicant drugged the complainant by placing a substance, likely Stilnox, into the complainant’s night-time drink. Then, while she was asleep, he would engage in sexual acts with the complainant without her knowledge or consent. On occasions, the applicant filmed the sexual acts. On some occasions after the offending, the complainant became aware that there were gaps in her memory from the night before. Sometimes she would feel hung over in the mornings and would be unsteady on her feet. Thinking that this may be related to her intake of alcohol prior to going to bed, the complainant reduced her drinking. The applicant began to make her, as a substitute, a hot chocolate before bedtime. Occasionally during the sexual acts, the complainant would wake but be unable to stay awake. In early April 2018, the complainant looked in the applicant’s toiletry bag and found a pack of Stilnox tablets. On 3 April 2018, the complainant visited her general practitioner where she raised her concerns about the applicant’s conduct and on 4 April 2018 she moved out of the matrimonial home. The complainant reported the matter to police on 9 April 2018. A sample of the complainant’s hair was taken on 8 May 2018 and analysis revealed that the active ingredient of Stilnox was present in all segments of her hair. The test indicated consumption of Stilnox in the nine to 12 months prior to the taking of the hair sample. On 11 April 2018, the applicant left a written apology in the complainant’s car while she was parked at a doctor’s surgery. Later that day he flagged down a police car. The applicant was emotional and made admissions to “effectively raping” his wife by “making love with her when she’s asleep or when we were drunk”. On 23 April 2018, the applicant attended counselling in relation to the marriage breakdown. The applicant made admissions to the conduct during this attendance.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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