THE KING v TYSON HARRIS [2024] SASCA 48

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HER HONOUR JUDGE SCHAMMER) DCCRM-23-015400 Appellant: THE KING Counsel: MR D PETRACCARO SC WITH MS L BROWN - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Respondent: TYSON HARRIS Counsel: MR A RICE - Solicitor: TIM DIBDEN BARRISTER & SOLICITOR Hearing Date/s: 15/03/2024 File No/s: SCCRM-23-031909 A SUPREME COURT OF SOUTH AUSTRALIA (Court of Appeal: Criminal) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. R v HARRIS [2024] SASCA 48 Judgment of the Court of Appeal (The Honourable Chief Justice Kourakis, the Honourable Justice Doyle and the Honourable Justice David) 12 April 2024 CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - ATTEMPT AND ASSAULT WITH INTENT CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE CRIMINAL LAW - SENTENCE - RELEVANT FACTORS CRIMINAL LAW - SENTENCE - PURPOSE OF SENTENCE This is an application by the Director of Public Prosecutions (SA) (‘the Director’) for permission to appeal against sentence. The sole ground of appeal is that the sentence imposed was manifestly inadequate. The respondent concedes that the Director should be granted permission to appeal, the appeal be allowed and that he be resentenced accordingly. The respondent pleaded guilty to one count of assault with intent to rape, contrary to s 270B(1) of the Criminal Law Consolidation Act 1935 (SA) ('the CLCA'), the maximum penalty for which is 12 years’ imprisonment. The offence occurred inside the victim's home on 6 February 2022 at approximately 9:30am. The victim observed the respondent on the footpath near her home. Concerned for his welfare she allowed him into her house to provide him with a drink. Once inside the victim's home, the respondent grabbed her arms and pulled her onto the floor. He proceeded to pull her shorts and underwear down to her ankles and began to unbutton his own pants. At one stage, he was either partially or entirely straddling her and holding her arms down. The victim’s screams caused him to flee the house. The -- 1 of 10 -- respondent was ultimately implicated in the offending by DNA evidence which linked him to the crime scene, including DNA found on the complainant’s clothing and a water bottle left at the scene. The sentencing Judge commenced with a notional starting point of imprisonment for three years and three months, reduced by 10 per cent on account of the respondent’s guilt plea to two years, 11 months and four days. The respondent was identified as a serious repeat offender, resulting in a non-parole period being fixed at two years, four months and four days, that being four-fifths of the head sentence. Given this is a ‘serious sexual offence’ for the purposes of ss 96(3)(ba) and 71(2)(b)(ii) of the Sentencing Act 2017 (SA) (‘the Sentencing Act’), the term of imprisonment could not be suspended or served under home detention. Additionally, the sentencing Judge determined it was appropriate to impose an intervention order pursuant to s 28(5) of the Sentencing Act for the safety and protection of the victim. Held, per the Court, granting permission to appeal and allowing the appeal: 1. In the circumstances of this case, the sentence imposed by the sentencing Judge was manifestly inadequate. It did not properly meet the demands of general deterrence, nor did it reflect the paramountcy to be afforded to the protection of the safety of the community. 2. The sentence imposed is so disproportionate to the offending and the offender, and so far below the permissible sentencing range that to allow it to stand would undermine public confidence in the administration of justice. It is necessary to grant permission to appeal to maintain sentencing standards for offences of assault with intent to rape so as to deter like-minded offenders from committing similar offending. 3. The sentence imposed in the District Court is quashed and the respondent is resentenced to a head sentence of imprisonment for six years, three months and 19 days with a non-parole period of five years and 16 days. The sentence is backdated to commence on 23 February 2023. An intervention order is imposed in the same terms as imposed in the District Court. Criminal Law Consolidation Act 1935 (SA) ss 270B(1); Sentencing Act 2017 (SA) ss 28(5), 71(2)(ii), 96(3)(ba), referred to. Hili v The Queen (2010) 242 CLR 510; R v Nemer (2003) 87 SASR 168, discussed. Benfell v The King [2024] SASCA 16; Bugmy v The Queen (2013) 249 CLR 571; Bui v Director of Public Prosecutions (Cth) (2012) 244 CLR 638; Cumberland v R (2020) 94 ALJR 656; Everett v The Queen (1994) 181 CLR 295; Green v R; Quinn v R (2011) 244 CLR 462; Lacey v Attorney-General (Qld) (2011) 242 CLR 573; R v Gajic (Supreme Court of South Australia Court of Appeal, Cox, Lander and Bleby JJ, 3 October 1997, unreported) ; R v Harris [2023] SASCA 129 ; R v Henderson (2023) 104 MVR 68; R v Morse (1979) 23 SASR 98; R v Yaroslavceff [2022] SASCA 123, considered. -- 2 of 10 -- R v HARRIS [2024] SASCA 48 Court of Appeal – Criminal: Kourakis CJ, Doyle and David JJA 1 THE COURT: This is an appeal by the Director of Public Prosecutions (SA) (‘the Director’) against sentence. The respondent pleaded guilty to one count of assault with intent to rape, contrary to s 270B(1) of the Criminal Law Consolidation Act 1935 (SA) (‘the CLCA’), for which the maximum penalty is 12 years’ imprisonment. 2 The offence occurred at the victim’s home on 6 February 2022 at approximately 9:30am. 3 The sentencing Judge commenced with a notional starting point of imprisonment for three years and three months, reduced by 10 per cent on account of the respondent’s guilty plea to two years, 11 months and four days. 4 The respondent fell to be sentenced as a serious repeat offender. Accordingly, a non-parole period of two years, four months and four days was imposed, that being four-fifths of the head sentence. 5 Both the head sentence and non-parole period were backdated to commence on 23 February 2023, the date the respondent was taken into custody. 6 By reason of the offence being a ‘serious sexual offence’ for the purposes of ss 96(3)(ba) and 71(2)(b)(ii) of the Sentencing Act 2017 (SA) (‘the Sentencing Act’), the sentencing Judge was precluded from suspending the sentence of imprisonment or ordering that it be served on home detention. 7 The sentencing Judge also imposed an intervention order pursuant to s 28(5) of the Sentencing Act, for the protection of the victim. 8 The Director now seeks permission to appeal against sentence on the ground of manifest inadequacy. At the appeal hearing, the respondent conceded that the Director should be granted permission to appeal, the appeal allowed, and the respondent resentenced. 9 For the reasons which follow, we would grant permission to appeal and allow the appeal. Factual circumstances of the offending 10 At around 9:00am on 6 February 2022, the victim was in her front yard when she observed the respondent sitting on the footpath near her home. The victim enquired about the respondent’s wellbeing. He responded by saying that he was lost and asking if she lived alone. The victim said that she did. Subsequently, the respondent entered the victim’s front yard and requested her to open the front door, which she did. Upon entering her home, he began to walk through it, causing her -- 3 of 10 -- [2024] SASCA 48 The Court 2 concern. The victim took a water bottle from her refrigerator to give to the respondent, who was in her spare room. As she approached him, he grabbed her arms and pulled her onto the floor. She screamed and struggled against the respondent, who then pushed her onto her back, such that her legs were bent in front of her face. He proceeded to pull her shorts and underwear down to her ankles and began to unbutton his own pants. At one stage, he was either partially or entirely straddling her and holding her arms down. The victim continued to scream loudly, which prompted the respondent to flee from the house. 11 A neighbour heard the victim’s screams and found her standing at his front door. She informed him of the incident, and he called the police. 12 The respondent’s involvement in the offence was not identified until he was arrested for unrelated offences and remanded in custody. The respondent was ultimately implicated in the offending by DNA evidence which linked him to the crime scene, including DNA found on the victim’s clothing and a water bottle left at the scene. 13 When questioned by police on 3 April 2022, the respondent denied the offending. He was subsequently arrested for this offence on 17 May 2022. 14 In a victim impact statement, the victim described the devastating effects of the offending on every aspect of her life. She said that she was now frightened in her own home, and her mental health, work and relationships continued to be adversely affected by the offending. Personal circumstances of the respondent 15 At the time of sentencing, the respondent was 28 years old. He was born in Alice Springs and raised as one of six siblings in a nearby Aboriginal community. His upbringing was unstable due to his parents’ alcoholism and frequent absence, leaving him primarily in the care of his extended family. 16 The respondent left school at the end of year seven, when he was aged 12. He has never been employed and was receiving unemployment benefits at the time of the offence. 17 The respondent has a history of substance abuse which commenced when he was aged 17. At that time, he started using cannabis and eventually progressed to smoking cannabis every day. At the age of 18, the respondent began abusing alcohol, leading to frequent blackouts and instances of violence towards others while he was intoxicated. In 2020, he started using methamphetamine either intravenously or by smoking, on a weekly basis. 18 The respondent was intoxicated at the time of the offending having consumed alcohol and cannabis. -- 4 of 10 -- [2024] SASCA 48 The Court 3 19 The respondent has had one significant relationship, which ended after approximately five years. He shares two children with his former partner. A third child of the relationship tragically died shortly after birth. He has not had contact with his two children since being remanded in custody for this offence. 20 The respondent has an extensive criminal history, including multiple convictions for offences of violence. Notably, in 2015, he was convicted in Alice Springs Local Court for a violent assault on his former domestic partner and two police officers and sentenced to 10 months’ imprisonment. Upon his release in 2019, he moved to Adelaide. In March 2020, he was sentenced to three years’ imprisonment with a non-parole period of 18 months for the offence of unlawfully causing harm. That offence involved the respondent punching his cousin and kicking him twice in the face whilst he was on the ground, resulting in a fractured jaw. 21 On 21 December 2021, the respondent was convicted of multiple offences, including assaulting and hindering police, and sentenced to imprisonment for four months and 17 days’ imprisonment. He was released from custody just one week prior to the current offence. After having committed this offence, on 6 June 2022, the respondent was convicted in the Adelaide Magistrate’s Court of three counts of aggravated assault causing harm (committed in April 2022), for which he received a sentence of 10 months’ imprisonment. 22 Dr Raeside, in a report tendered to the sentencing Judge, opined that the respondent had a Substance Use Disorder but considered that the respondent did not require any specific psychiatric treatment. Dr Raeside noted that it was of concern that the respondent resumed using alcohol and cannabis so shortly after his release from custody and considered that he would benefit from participation in appropriate programs to address his substance abuse, as well as a prison-based sexual behaviour clinic. Sentencing remarks 23 After outlining the factual circumstances of the offending and the respondent’s personal circumstances, the sentencing Judge noted that the offence occurred within a week of the respondent’s release from custody, and that the genesis of the offending was ‘extreme intoxication’. 24 The sentencing Judge referred to the victim impact statement and the detrimental effect the offending has had on the victim, the respondent’s criminal antecedents including his numerous prior convictions for various assaults, and the report of Dr Raeside including his opinion that there was no evidence the respondent suffered from any previous or current psychiatric illness. 25 The sentencing Judge then imposed the penalty outlined earlier. Due to the offence being a ‘serious sexual offence’, her Honour correctly acknowledged that any term of imprisonment imposed could not be suspended or served on home detention. -- 5 of 10 -- [2024] SASCA 48 The Court 4 26 The sentencing Judge also imposed an intervention order for the protection of the victim. Manifest inadequacy 27 The Director challenged the sentence solely on the basis that it was manifestly inadequate; that is, unreasonable or plainly unjust. As indicated earlier, the respondent conceded that the sentence was manifestly inadequate and that the Director should be granted permission to appeal, and the appeal allowed. 28 There is no sentencing standard for the offence of assault with intent to rape. That is because the circumstances in which this offence is committed, and the personal circumstances of offenders, are so varied that it is not possible nor appropriate to indicate any range of sentence. The Director referred the Court to R v Gajic1 (Gajic) in support of the contention that the sentence imposed was manifestly inadequate, and ‘offences of assault with intent to rape are a matter of high public concern’ such that permission should be granted to maintain adequate standards of sentencing for this type of offence. 29 In Gajic, the appellant was sentenced for the offence of assault with intent to rape to five years’ imprisonment with a non-parole period of two years. The judge declined to suspend the sentence. The circumstances of the offending involved the appellant following a young woman at night, on a public road, and tackling her to the ground. There, he pulled up her skirt and rubbed her vaginal area. He unbuckled his belt and undid the zip of his trousers, at which point he was interrupted by passers-by who had heard the victim screaming. The appellant was 20 years old and intoxicated at the time. He had no criminal history and had full time employment. In dismissing the appeal, Cox J (with whom Lander and Bleby JJ agreed) said: ‘However, the courts are bound to do everything they can to protect women from this sort of attack. General deterrence was therefore an important consideration. It was a very serious assault, with a degree of pre-mediation, and it was carried out with violence and persistence. While the head sentence in all the circumstances was at the top of the scale, I do not think it was outside the range of the learned sentencing Judge’s discretion.’2 30 At the appeal hearing, the question arose whether it was appropriate to have regard to the range of sentences imposed in cases of rape and attempted rape when considering the question of manifest inadequacy. 31 The offence of assault with intent to rape involves a contravention of s 270B of the CLCA which creates an offence of assaulting a person with an intent to commit an offence to which the section applies. Section 270B applies to an offence against the person; theft or an offence of which theft is an element; and an offence 1 SACCA, Unreported judgment No S6381 delivered 3 October 1997. See also: The Queen v Swann (1985) 123 LSJS 432; R v Sultan (2001) SASC 300; The Queen v Mislov (1983) 112 LSJS 427. 2 R v Gajic (Supreme Court of South Australia Court of Appeal, Cox, Lander and Bleby JJ, 3 October 1997, unreported) at 4 per Cox J. -- 6 of 10 -- [2024] SASCA 48 The Court 5 involving interference with, damage to, or destruction of property punishable by three years or more. Pursuant to s 270B, the penalty for an offence under this section is imprisonment for a term not exceeding seven years, or imprisonment for a term not exceeding the maximum term that may be imposed for an attempt to commit the principal offence, whichever is the greater maximum penalty. 32 Under s 270A of the CLCA, the maximum penalty for the offence of attempted rape is 12 years’ imprisonment, and accordingly the maximum penalty for the offence of assault with intent to rape is 12 years. 33 Generally speaking, we consider it is appropriate to have regard to the sentences imposed for offences of rape and attempted rape when considering the appropriate sentence for an offence of assault with intent to rape (noting that there is also no sentencing standard for the offence of rape). That is because many of the same considerations arise when assessing the objective seriousness of all three offences. Indeed, there may be little to distinguish the objective circumstances of an offence of assault with intent to rape from an attempted rape, and in some circumstances, the conduct which constitutes the former will also amount to the latter. 34 It must, of course, be borne in mind that the maximum penalty for rape is life imprisonment, and that higher penalty reflects the serious nature of the infliction of a completed act of non-consensual sexual intercourse on another person. Notwithstanding that consideration, it is not difficult to conceive of cases where the physical assault is so serious, and the intent to commit rape so overt and sustained, that the conduct will constitute a more objectively serious offence than an attempted rape or a completed offence of rape committed in other less serious circumstances. 35 Ultimately, individualised justice requires that a court’s sentencing discretion remains broad given the wide variety of circumstances in which the offence of assault with intent to rape can be committed and the wide range of the personal circumstances of offenders. Each sentence must, of course, be considered by reference to the facts of the particular case, and the personal circumstances of the offender. 36 In the present case, after having regard to the maximum penalty for the offence, the objective seriousness of the offending, and the personal circumstances of the respondent, we are satisfied that the sentence was manifestly inadequate. There were several particularly serious features to the offending. First, the offence occurred in circumstances where the victim was attempting to assist the respondent out of concern for his welfare. It was the victim who initially approached him out of concern for his well-being, and who subsequently allowed him into her home to provide him with water. Second, the offence occurred inside the victim’s home, violating her sense of safety and security. Third, the respondent’s offending involved a sustained and violent attack on the victim; it was only due to her own fortitude and efforts in repelling the respondent that the attack came to an end -- 7 of 10 -- [2024] SASCA 48 The Court 6 without further sexual violence being inflicted upon her. Fourth, the offending has had an adverse impact on the victim, which is ongoing. She no longer feels safe in her own home, and it has affected all aspects of her life. Those matters combined render this an objectively serious example of the offence of assault with intent to rape. 37 As to the respondent’s personal circumstances, the respondent is an Aboriginal man who had a disadvantaged childhood. He was raised in a household where alcohol abuse was commonplace. During his teenage years, he acquired a significant Substance Use Disorder which has contributed to his inability to obtain employment. The respondent’s prior offending was committed in the context of his illicit drug use and abuse of alcohol, as was this offending. 38 While it is to be accepted that the respondent suffered from a deprived upbringing indicative of the systemic social disadvantage faced by many Aboriginal members of the community3, and this was a relevant factor to take into account, there was little else to be said in mitigation of his offending. The respondent was not entitled to any mitigation by reason of previous good character. He has an extensive criminal history with many prior convictions for assaults involving violence on his family members and police. The respondent’s prospects of rehabilitation were poor. At the time of the offending, he had only recently completed a custodial sentence for offences of assault, and within a week of his release, he consumed illicit drugs and excessive alcohol and committed this offence. 39 While it was to the respondent’s credit that he had belatedly pleaded guilty to the offence sparing the victim from giving evidence, and through his counsel expressed his remorse for the offending, it was a strong prosecution case and the respondent’s DNA linked him to the crime scene. 40 Given the objective seriousness of the offence (for the reasons outlined earlier), and the respondent’s poor prospects of rehabilitation, we are satisfied the sentence did not adequately meet the demands of general and personal deterrence, nor give proper effect to the paramountcy to be afforded the protection of the safety of the community. For those reasons, we are satisfied the sentence was manifestly inadequate. Permission to appeal 41 Notwithstanding our conclusion that the sentence is manifestly inadequate, it does not necessarily follow that the Director should be granted permission to appeal. The circumstances in which permission to appeal will be granted are confined to ‘rare and exceptional cases.’4 In this matter, unusually, the respondent 3 Bugmy v The Queen (2013) 249 CLR 571 at [37]-[41] per French, Hayne, Crennan, Kiefel, Bell and Keane JJ. 4 Everett v The Queen (1994) 181 CLR 295 at 299-300 per Brennan, Deane, Dawson and Gaudron JJ; Lacey v Attorney-General (Qld) (2011) 242 CLR 573 at [8]-[21] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ; Green v R; Quinn v R (2011) 244 CLR 462 at [1] –[2] per French CJ, -- 8 of 10 -- [2024] SASCA 48 The Court 7 conceded that the Director should be granted permission to appeal despite the fact that he will be twice vexed. 42 Having considered the matters set out above, we are satisfied that this concession was properly made. In particular, we are satisfied that the sentence imposed in this case fell well below the permissible sentencing range, and to allow it to stand would undermine public confidence in the administration of justice. Moreover, notwithstanding that the respondent will be twice vexed, we consider it is necessary to grant permission to maintain sentencing standards for offences of assault with intent to rape, so as to deter other like-minded offenders from committing similar crimes. Resentencing 43 While the respondent conceded that the sentence was manifestly inadequate, and the appeal should be allowed, it was submitted that there was still a basis to exercise some leniency. The respondent emphasised that the offence was spontaneous, and the objective seriousness of the offence was reduced by the absence of premeditation.5 He also emphasised his deprived upbringing, which had contributed to his history of unemployment and Substance Use Disorder. 44 As to the respondent’s contrition, it was submitted that the decision to concede the appeal, demonstrated his remorse and insight into his offending. The respondent also relied on his guilty plea and apology provided through his counsel. 45 After having regard to the above submissions, as well as the circumstances of the offending and the respondent’s personal circumstances outlined earlier, we commence with a notional head sentence of imprisonment for seven years. We allow a reduction of 10 per cent on account of the respondent’s guilty plea, resulting in a head sentence of six years, three months and 19 days. 46 The respondent fell to be sentenced as a serious repeat offender. There was no suggestion that he should receive a disproportionate sentence. A non-parole period of five years and 16 days is fixed, that being four-fifths of the head sentence. 47 We backdate the sentence of six years, three months and 19 days and non-parole period of five years and 16 days to commence on 23 February 2023. 48 Pursuant to s 28(5) of the Sentencing Act, we impose an intervention order in the same terms as that imposed by the sentencing Judge in the District Court. Orders 1. Permission to appeal against sentence is granted. Crennan and Kiefel JJ; Cumberland v R (2020) 94 ALJR 656 at [4] –[6] , [33] per Bell, Gageler and Nettle JJ. 5 R v Gajic (Supreme Court of South Australia Court of Appeal, Cox, Lander and Bleby JJ, 3 October 1997, unreported) at 3 per Cox J. -- 9 of 10 -- [2024] SASCA 48 The Court 8 2. The appeal is allowed. 3. The sentence of the District Court is set aside. A sentence of six years, three months and 19 days and non-parole period of five years and 16 days is imposed. 4. The sentence is to commence on 23 February 2023. 5. An intervention order is imposed in the same terms as that imposed by the sentencing Judge in the District Court. -- 10 of 10 --