R v SYMONDS No. SCCRM-98-254 Judgment No. S217 [1999] SASC 217

Supreme Court of SA|1999-06-01|Before: Doyle CJ, Mullighan JJ, Ms P

On Appeal from DISTRICT COURT (HIS HONOUR JUDGE BRIGHT)

(Court of Criminal Appeal: Doyle CJ, Prior and Mullighan JJ)

DOYLE CJ. The appellant appeals against a sentence imposed by a District Court Judge. The District Court Judge imposed a single sentence for ten offences to which the appellant pleaded guilty. The sentence imposed was imprisonment for 13 years, with a non-parole period of 10 years.

The appellant complains that the head sentence and non-parole period are manifestly excessive.

The appellant was forty years of age when sentenced in October 1998. The offences were committed between July 1995 and April 1997.

The first offence was an offence of housebreaking and larceny committed on 15 July 1995. The appellant broke into a flat occupied by Ms D. He gained entry through a window. He stole a number of compact discs. The second offence was also an offence of housebreaking and larceny. It was committed on about 26 September 1995. The appellant broke into a flat occupied by Ms P. This flat was in the same block of flats as the flat of Ms D. The appellant again stole some compact discs. The third offence is an offence of burglary. On 24 November 1995 the appellant again broke into Ms P's flat. He left without taking anything. It appears that there was no-one in the flat at the time.

That same night, and after leaving Ms P's flat, the appellant broke into Ms D's flat. He pleaded guilty to burglary in relation to that. By his plea he admits that he broke and entered with intent to commit an offence against the person.

Ms D was asleep in bed. She woke up to find a man in her bedroom. His face was concealed by a balaclava. He told her that he wanted sex. He applied adhesive tape to her mouth and he tied her wrists. He then raped Ms D anally and vaginally, and then raped her by forcing her to perform an act of fellatio upon him. He remained in Ms D's flat for some time after doing this. He is not charged with anything else in respect of that further time.

The next offences were not until 12 April 1997. On that day at about 5.30am the appellant broke into a flat occupied by Ms R. He has pleaded guilty to burglary in respect of that, admitting that he did so with intent to commit an offence against the person. At the time Ms R was in the shower in her flat. She got out of the shower and was drying herself. She was then confronted by a man wearing a black stocking over his head. He grabbed her, and when she struggled he struck her in the face several times, causing her lip to bleed. She screamed and resisted. The appellant pushed Ms R into her bedroom and onto her bed. He had a knife in his hand. Ms R was bleeding from her lip, and it appears that when he saw this the appellant desisted from his attack. In relation to this incident the appellant pleaded guilty to assault with intent to rape.

Before he left Ms R's flat, the appellant took a mobile phone and charger. In relation to this he pleaded guilty to armed robbery.

The appellant was ultimately tracked down by the police as a result of him using the mobile phone that he took from Ms R. I am prepared to accept that at a certain point the appellant used the mobile phone in a manner that he knew was likely to lead to his detection, and that he did this because he knew that he needed help.

As I have mentioned, the appellant pleaded guilty to each of these offences. The District Court Judge accepted that the plea should be treated as an early plea of guilty.

The appellant is married with two children. At the time of the offending he was in regular employment and he remained in that employment until he was arrested. He was described by the Judge as a good family man. There was no doubt that he was so regarded by those who knew him, and that he was appropriately so regarded. A substantial bundle of references was tendered in the District Court. These show that the appellant was very well regarded by those with whom he mixed. He had contributed to the community through voluntary work, in particular through active participation in a lifesaving club. His wife has continued to support him.

One can fairly say that these offences are completely out of character for the appellant. For those who know him they are undoubtedly inexplicable. I am prepared to accept, as did the District Court Judge, that apart from these offences the appellant has been an industrious person and of good character.

Such explanation as there is for the offences comes from a detailed and helpful report from Dr Branson, a psychiatrist. It is unnecessary to go into any great detail. The appellant does not suffer from a major mental illness. However, in Dr Branson's opinion he suffers from a "compulsive impulse to steal, with an increasing sense of tension and anxiety until the act is committed, followed by a feeling of relief and reduction in tension." The appellant's condition satisfies the diagnostic criteria for the condition of kleptomania. Dr Branson attributes this condition to the appellant's upbringing, and to a need that he felt as a younger person to impress others and to gain friends by stealing. Stresses in his later life led to a return of the impulse to steal. As to the sexual offences, the psychiatrist says:

"The sexual component of some of his offending is, in my view, explained as being a further expression of an attempt to exert some power and control at a time when he felt totally devalued and psychologically impotent in all other areas of his life."

It is not necessary to go into the circumstances that led to the appellant feeling devalued and impotent. Dr Branson says that the appellant is deeply remorseful about his behaviour. He considers that there is no risk of the appellant re-offending.

The appellant has expressed his regret for his offending. He makes no attempt to minimise its seriousness.

In short, as was submitted by counsel for the appellant, the personal circumstances of the appellant argue powerfully for leniency. His plea of guilty was timely and is genuine. He displays genuine contrition. His prospects of rehabilitation are good.

The District Court Judge accepted all of this. However, he said that the need to punish and to deter far outweighed the factors which, in many cases, might have led to a more lenient sentence. The Judge accepted that the appellant was unlikely to offend again.

The Judge referred to the effect of the offences on the victims, as was appropriate. I pass over the effect of the offences of burglary and of breaking and entering. That is not to ignore the impact of such offences. But in the present case the main issue is the effect of the sexual offences.

Reading the victim impact statements, I am again reminded of the serious and ongoing effects of sexual offences such as those to which Ms D and Ms R were subjected. Each victim has suffered grievously. The feelings of fear and lack of confidence that they now suffer have affected their lives markedly. There is every reason to think that the effects of the crimes on the victims will be long-term. This underscores the seriousness of the violent sexual offences that the appellant has committed.

In relation to the sentence to be imposed, the District Court Judge said:

"The prosecution has urged me to impose notionally separate sentences for each of the ten counts as a starting point. Even the most cursory exercise shows that the total sentence so generated will exceed what, having regard to the principle of totality and the need to avoid an unnecessarily crushing sentence, is appropriate."

The Judge said that but for the pleas of guilty and contrition the head sentence would have been of the order of 16 to 18 years. Allowing for the pleas and the contrition, he fixed a sentence of 13 years. As I said earlier, the non-parole period that he fixed was 10 years.

One of the submissions advanced was that the Judge had failed to follow the approach to the imposition of a single sentence for multiple offences that this Court approved in R v Major [1998] SASC 7089; (1998) 70 SASR 488. In that case I said (at 490):

"I agree with Olsson J that if a single sentence is imposed, using section 18A of the Criminal Law (Sentencing) Act ("the Act"), the Judge must first consider the sentence that would have been imposed had separate sentences been imposed in respect of each offence. As part of that process the Judge must consider whether the sentences imposed would be concurrent or cumulative. I agree that in the present case the starting point is that each sentence would be cumulative.

If the Judge does not do this, there is a real danger that a single sentence imposed under section 18A of the Act, will lack a proper basis, and will not appropriately reflect the overall criminality involved. The process of imposing a single sentence is not a process under which a lesser sentence than would otherwise be appropriate is to be imposed.

In saying this I do not mean that the sentencing judge must determine the sentence that would have been imposed, in respect of each separate offence, with complete precision. But, because the single sentence must represent an adequate punishment for the criminal conduct involved, it is necessary that it be closely related to the separate sentences that would otherwise have been imposed."

In Major the Court was not stating a process that must be followed in the sense that failure to follow it is itself an error of law in the sentencing process. The Court did no more than remind sentencing judges of the need to relate a single sentence imposed under s18A of the Criminal Law (Sentencing) Act 1988 (SA) to the sentence that would have been imposed if the power conferred by s18A were not available. What was said in Major was intended to guide sentencing judges in the exercise of the power conferred by s18A, but not to impose upon them a rigid formula that must be followed.

In some cases the only safe course to follow will be to approach the sentencing process initially as one would do so if the powers conferred by s18A were not available. The power conferred by s18A will then be used to express the sentence as a single sentence, rather than as a number of separate sentences with orders as to concurrence and accumulation as may be appropriate. But there will be other cases when this approach is not necessary, and it is appropriate and convenient to go directly to the single sentence to be imposed. The approach outlined in Major may be unnecessary because the case is so straightforward that the separate consideration of the individual sentences is an unnecessary elaboration. The approach outlined in Major may be unnecessary because the totality principle will so obviously operate to reduce the otherwise appropriate sentence that it becomes pointless to consider and to assemble the individual sentences that would otherwise be imposed. There may be other situations when it will be unnecessary to follow the approach outlined in Major. Subject to that, however, I adhere to what I said in Major and to the desirability, as a general rule, of relating a single sentence to be imposed to the individual sentences that would otherwise be imposed.

In the present case I have considered it desirable to follow the approach outlined in Major. Taking that approach, I arrived at a head sentence of about 18 years, as did the sentencing judge. I arrived at that sentence without reducing the sentence that would otherwise have been imposed by reference to the considerations usually referred to as the totality principle. I do not consider that the sentence I arrived at should be reduced on that account.

For present purposes it suffices to indicate that, in my opinion, the three counts of rape would attract concurrent sentences resulting in an overall sentence of about 8 years' imprisonment. The associated offence of burglary would attract a further sentence of about 1 year's imprisonment, cumulative upon the sentences for rape. The count of assault with intent to rape would attract a sentence of about 5 years' imprisonment, with a further year of imprisonment for the associated count of burglary. Each of these sentences should be cumulative upon the sentences for rape. The remaining counts of housebreaking and larceny and burglary would attract further sentences that could be made concurrent, although cumulative upon the other sentences, amounting to about 3 years' imprisonment.

In that way I arrived at a starting point of about 18 years' imprisonment, and on that basis it cannot be said that the starting point taken by the District Court Judge was excessive.

The District Court Judge reduced the sentence, by reference to the plea of guilty, from a head sentence of between 16 years' and 18 years' imprisonment, to one of 13 years' imprisonment. I must say that I would have made a greater reduction on account of the plea of guilty. I have already referred to the factors relevant to the plea of guilty. I would have fixed a head sentence of 12 years' imprisonment. However, I cannot say that the sentence fixed by the District Court Judge is manifestly excessive. Nor can I say that the discount for the plea of guilty is inadequate.

For those reasons, in my opinion, the appeal against the head sentence must fail.

The fixation of a non-parole period must also take account of factors that influence the head sentence. The non-parole period must also be proportionate to the gravity of the crime. On the other hand, as I have said earlier, the appellant is an excellent candidate for parole. There are powerful mitigating circumstances that can properly be reflected in the fixation of the non-parole period. There is good reason to fix a non-parole period which is a lower proportion of the head sentence than is usual. The appellant's background and personal circumstances provide compelling evidence that he is, as I have already said, an excellent candidate for parole. It was appropriate, that being so, to give a greater emphasis to that in the fixation of the non-parole period than the judge did. To do so does not mean that, if the appellant is released on parole, he no longer suffers punishment. His release upon parole means only that he is at liberty in the community but under strict conditions of parole. I consider that the period that the judge allowed for parole did not adequately reflect these factors. In my opinion a non-parole period of 8 years would be adequate and appropriate in the present case. I consider that the difference between the non-parole period that I would fix and the non-parole period fixed by the District Court Judge is indicative of error, and I would allow the appeal to the extent of reducing the non-parole period from 10 years to 8 years.

I would allow the appeal, but only for the purpose of reducing the non-parole period to one of 8 years' imprisonment. I would not interfere with the head sentence.

Criminal Law (Sentencing) Act 1988(SA)

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