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7
Court of Criminal Appeal 21 November 2012

Silas Gordon Haines v R

[2012] NSWCCA 238

Sexual offencesAssault & violenceTheft & property
CRIMINAL LAW APPEAL AGAINST SENTENCE ONE EPISODE OF OFFENDING NEED FOR PROTECTION OF THE COMMUNITY

Citation: Silas Gordon Haines v R [2012] NSWCCA 238
Court: NSW Court of Criminal Appeal
Date: 21 November 2012
Judges: McClellan CJ at CL, Bellew J, Barr AJ

Background

The applicant pleaded guilty in the District Court on 31 March 2010 to 16 offences arising from a single episode of offending in the early hours of 2 November 2008. The offences stemmed from a forced entry into a Coffs Harbour townhouse occupied by five overseas university students. The applicant and two co-offenders entered the premises by pushing through a partially opened rear sliding door.

Once inside, the applicant and his co-offenders robbed multiple occupants at knifepoint and with a beer bottle, committing serious violence against several victims. The applicant then entered the bedroom of a 21-year-old female student who had barricaded herself inside, where he robbed her and then subjected her to a prolonged and brutal sexual assault involving oral, vaginal, and anal rape.

The District Court imposed an aggregate sentence of 25 years' imprisonment commencing 3 January 2009, with an effective non-parole period of 18 years expiring 2 January 2027 and an additional term of 7 years. The applicant sought leave to appeal on the ground that the overall sentence was unreasonable or plainly unjust.

  • Whether the total sentence of 25 years with an 18-year non-parole period was unreasonable or plainly unjust in all the circumstances
  • Whether the degree of accumulation of individual sentences was excessive
  • Whether the resulting period of imprisonment amounted to a "crushing" sentence
  • What weight should properly be given to the need for protection of the community in the sentencing exercise

Decision

The Court of Criminal Appeal, in reasons delivered by Bellew J (with McClellan CJ at CL and Barr AJ agreeing), refused to disturb the sentence. Bellew J found that the sentencing judge had correctly assessed the gravity of the overall criminality and was entitled to accumulate sentences to the degree that he did, given the distinct nature and number of the offences committed and the multiple victims involved.

The Court considered whether the total sentence could be characterised as crushing, noting the legal principle that a sentence may be disproportionately excessive even where individual components appear within range. However, having regard to the totality of the offending, including its premeditated character, the vulnerability of the victims, the violence and degradation involved, and particularly the fact that the applicant committed these offences while on parole for a prior sexual assault, the Court found no basis for that characterisation.

The Court also emphasised the weight properly given to the protection of the community in sentencing. It drew on the principle, affirmed in older but still applicable authority, that forcible home invasions represent a serious social evil and that courts have a duty to impose stern sentences in response to repeated and defiant criminal conduct. The sentencing judge had correctly identified that community members are entitled to expect safety in their own homes, and those who violently undermine that expectation must face condign punishment.

The Court concluded that the sentence, while severe, was neither unreasonable nor plainly unjust in the context of what Bellew J described as conduct of "the most depraved, immoral and degrading nature imaginable." The appeal was accordingly dismissed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a substantial degree of sentence accumulation is permissible where an offender commits numerous discrete offences against multiple victims in a single episode.
  • A sentence will not be characterised as "crushing" simply because it is lengthy; the totality principle requires the court to consider whether the overall term is disproportionate to the true criminality, having regard to all relevant factors.
  • The fact that an offender was on parole at the time of offending, particularly for a prior offence of the same character, is a significant aggravating circumstance that properly bears on both the head sentence and the non-parole period.
  • Forcible home invasion followed by serious offending against multiple occupants attracts substantial sentences, reflecting the community's entitlement to protection and safety within their own homes.
  • No error was established in the sentencing judge's fact-finding or approach to accumulation, and the Court declined to intervene where the overall sentence fell within the range available for the nature and extent of the criminality involved.

Legislation and Cases Referenced

Cases:
- R v Gorman [2002] NSWCCA 516; (2002) 137 A Crim R 326
- R v Haines [2004] NSWCCA 294
- R v Hayes [1984] 1 NSWLR 740
- R v MAK [2006] NSWCCA 381; (2006) 167 A Crim R 159
- R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159

Legislation: No specific legislation was cited in the materials provided.