Allen v The Queen
[2021] VSCA 249
•9 September 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0064
| DANIEL ALLEN | Appellant |
| v | |
| THE QUEEN | Respondent |
---
| JUDGES: | PRIEST and KENNEDY JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 2 September 2021 |
| DATE OF JUDGMENT: | 9 September 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 249 |
| JUDGMENT APPEALED FROM: | DPP v Allen [2019] VCC 2119 (Judge Riddell) |
---
CRIMINAL LAW – Appeal – Sentence – Rape and associated offences – Supply of drug of dependence to child – Where appellant pleaded guilty to charge of theft – Whether sentencing judge erred in finding no remorse in relation to theft charge – Whether sentencing judge doubly punished appellant in respect of supply of drug charge – Whether certain individual sentences, total effective sentence, and non-parole period manifestly excessive – Appeal allowed – Appellant resentenced to ten years’ imprisonment with non-parole period of seven years.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr T Marsh | SLKQ Lawyers |
| For the Respondent | Mr J C J McWilliams | Ms A Hogan, Solicitor for Public Prosecutions |
PRIEST JA:
I agree with Kennedy JA, whose reasons I have had the advantage of reading in draft.
KENNEDY JA:
On 18 March 2019, the appellant was found guilty by a jury of one charge of assault with intent to commit a sexual offence (trial indictment charge 1), one charge of rape (trial indictment charge 2), one charge of attempted rape (trial indictment charge 3), and one charge of sexual assault (trial indictment charge 4).
The appellant had also pleaded guilty to supplying a drug of dependence to a child (plea indictment charge 1), trafficking in a drug of dependence (plea indictment charge 2), and theft (plea indictment charge 3), as well as the summary charge of driving whilst disqualified (related summary charge 29).
On 12 December 2019, following reasons for sentence,[1] he was sentenced as set out in the table below:
[1][2019] VCC 2119 (‘Sentencing Remarks’).
Charge Offence Maximum Sentence Cumulation Trial Indictment 1 Assault with intent to commit a sexual offence 15 years 3 years 8 months 2 Rape 25 years 7 years Base 3 Attempted rape 20 years 4 years 10 months 4 Sexual assault 10 years 2 years 8 months Total Effective Sentence 9 years and 2 months’ imprisonment Plea Indictment 1 Supplying a drug of dependence to a child 15 years 3 years Base
Charge Offence Maximum Sentence Cumulation 2 Trafficking in a drug of dependence 15 years 2 years 6 months 3 Theft 10 years 2 years 6 months Related summary charge 29 Driving whilst disqualified 4 months (first offence); 2 years (subsequent offence) 3 months - Total Effective Sentence 4 years’ imprisonment
The sentencing judge ordered that two years of the sentence imposed on the plea indictment be served cumulatively on the sentence imposed on the trial indictment, with the following result:
Global Total Effective Sentence 11 years and 2 months’ imprisonment Non-parole period 9 years Pre-sentence detention 584 days Other orders Cancellation of driver’s licence and disqualification for two years; subject to Sex Offenders Registration Act 2004 for at least 15 years; orders for forfeiture of property; orders for destruction of property; section 464ZF orders.
On 20 April 2020, the appellant filed an application for leave to appeal. On 5 May 2021, the appellant was granted leave to appeal on all grounds as follows:[2]
[2]Leave was granted without reasons.
Ground 1: The learned trial judge erred in finding that the [appellant] had not demonstrated any remorse for the theft of the television set and personal cards.
Ground 2:The learned sentencing judge erred in doubly punishing the [appellant] for supplying a drug of dependence to [Bianca Sennit].[3]
[3]A pseudonym was used.
Ground 3: The sentence imposed on the individual charges of:
(a)Sexual assault (Charge 4 on the Trial Indictment)
(b)Supply of drug of dependence to a child (Charge 1 on the Plea Indictment)
(c)Trafficking a drug of dependence (Charge 2 on the Plea Indictment) and
(d)Theft (Charge 3 on the Plea Indictment);
are manifestly excessive.
Ground 4The total effective sentence and non-parole period are manifestly excessive.
For the reasons expressed below, I have determined that ground 3 succeeds (in respect of three of the charges). I would therefore allow the appeal and resentence the appellant in the manner set out below. Given this success, it has been necessary to revisit the question of cumulation and the non-parole period such that it has been unnecessary to separately consider ground 4.[4]
[4]The appellant made complaint in relation to the same four offences in respect of both grounds 3 and 4.
Circumstances of the offending
The sentencing judge described the circumstances of the offending as follows:[5]
[5]The appellant did not challenge the Sentencing Remarks insofar as they provided a summary of the circumstances of the offending.
2In December 2017, Bianca Sennitt, the principal victim, was 17 years old. Indiana Nilsen,[6] her friend, was 18 years old. You were 41 years of age. At the time of the offences, Bianca and Indiana lived together in a residence in Reservoir.
[6]A pseudonym was used.
3 On 28 December 2017, you imposed yourself into their lives, first by knocking on their door late at night and posing as a neighbour. You shared cigarettes with them and invited yourself into their house. You produced and provided to the young women an amount of ice. Ms Sennitt gave evidence that she felt pressured by you to smoke it. Over her protest, you said to her, ‘Fucking have it.’ You all smoked ice together. That is the start of Charge 1 on the plea indictment, supplying a drug of dependence to a child.
4 The next day you said to the victims, ‘I’m staying here now.’ While you stayed at their home, you made sexual overtones towards both of them. You exposed your penis, you touched the girls sexually by rubbing their legs. In particular, you rubbed Bianca on her upper thigh, close to her genital area over her clothing and put your hand up her top to touch her stomach and her breasts under her bra. These acts are not the subject of charges, but form the background narrative to your offending.
5You told Bianca at various times that you wanted to have sex with her. She refused saying, ‘I’m only a kid.’ You said, ‘I don’t care.’ To protect Bianca, Indiana offered to have sex with you instead and did so. Nonetheless, you continued to try and touch Bianca, who continued to refuse. That, at one point, made Indiana angry with you and she told you to stop touching Bianca saying, ‘I fucked you, so don’t touch her.’ You became angry.
6 After that point you still continued to randomly grab Indiana’s breasts, slap Bianca on the bottom and run your hand up and down both girls’ legs near their genitals.
7 On 29 December 2017, you told the girls that you were going to go and get more drugs and they had to go with you. Indiana agreed for you to use her identification to pawn your jewellery for money. You all travelled to pawn the items together. You pointed to Bianca, told her she was to be in the front seat and Indiana had to sit in the back seat. While driving around, you were in touch with and met a number of people for the purpose of trafficking ice to them. That is Charge 2 on the plea indictment, trafficking in a drug of dependence.
8 You drove with the young women to a number of different houses, where you delivered ice to customers. The girls stayed in the car while you did this, except on one occasion when you told them to go inside a house somewhere in Broadmeadows. Inside they sat on a couch and you gave them both a glass pipe with ice in it and they smoked it. Those events are part of Charges 1 and 2 on the plea indictment.
9 You all returned to the girls’ unit that night. You smoked ice in a pipe and again, you gave that to Bianca and Indiana. Again, that is part of Charge 1.
10 You brought your clothes into the unit and you told the victims that they had to do your washing.
11 At one point in the early hours of Saturday 30 December, you told Bianca to come with you for the purpose of buying cigarettes. You told Indiana to stay at the house. You and Bianca drove to a service station near Bell station.
12 Although I could not be satisfied to the requisite standard that it was your intention during that car trip to rape or commit sexual offences against Bianca, your intention to have sexual contact with her was clear. On the way to the service station you told her a number of times how badly you wanted to ‘fuck her’. After the cigarettes were purchased, you began to drive back towards the apartment and repeatedly told her how badly you wanted to ‘fuck her’. She again told you she was only a kid. She was scared. She was by herself with you.
13 On nearing the house, your intention to have sexual contact with her, regardless of her consent, became clear. It is at that point you drove past the home and stopped the car at the end of the street. The end of their street was interrupted by a reserve. It was an isolated area. You locked the doors of the car. Bianca was very scared and wanted to get out.
14 You pushed her seat down so that she was in a horizontal position and you began rubbing your hands up and down her legs. Again she said to you, ‘I’m just a kid, can I please go, I just want to see my friend?’ You yelled at her and spoke to her in an angry voice. You said, ‘Why are you playing so hard to fucking get?’ You tried to get on top of her while she was lying flat. She pushed you off her. She was crying and kicking you and told you to get off. You said again, ‘Why are you playing so hard to fucking get?’ You grabbed her by the hair and kissed her face and her mouth. That is Charge 1 on the trial indictment, the assault with intent to rape.
15 You then put your hand up Bianca’s top and touched her breasts on her skin, before putting your hand down her pants and touching her bottom underneath her clothes. You then pushed your finger inside her vagina and after, tried to put your whole fist in her vagina. That is Charge 2 on the trial indictment, rape.
16 Bianca said, ‘Please, I’m only 17.’ She said in evidence that you then threatened her with what she believed was a silver gun. I could not be satisfied beyond reasonable doubt that you in fact had a silver gun in your possession. However, when you were arrested and your vehicle was searched a number of days later, a silver cigarette lighter with the appearance of a gun was located in the console of your car. Whether it was this item which was produced to her or some other object, your intention at the time was to brandish something and give the impression that you had a weapon. That is an aggravating feature of your offending against her.
17 After threatening her in that way, you pushed her head towards your penis by grabbing the back of her head. Her lips touched your penis, but she refused to take it into her mouth. That is Charge 3 on the trial indictment, attempted rape.
18 Obviously frustrated, you then pushed her out of the car. She walked back to her house, where Indiana let her inside. Indiana observed that Bianca was upset, that her face was red around her mouth and her hair was messed up. She asked Bianca what was wrong and Bianca said, ‘I’ll talk to you later.’ Indiana told her to have a shower, which she did and she changed her clothes.
19 You returned to the unit soon after and lay on the bed in Indiana’s bedroom. You turned on the television. The young women sat on the floor. You told them to sit next to you on the bed and they complied. You gave them both ice in a pipe and you all smoked it. Again, that forms part of Charge 1 on the plea indictment of supplying a drug of dependence to a child, being Bianca.
20 You rubbed Bianca on her legs near her genital area. Both girls told you to stop. You merely laughed. That act forms Charge 4 on the trial indictment of sexual assault. You pulled your penis out of your pants and asked Indiana to suck your penis and she refused. Bianca walked out of the bedroom. Shortly after Indiana left the bedroom.
21 You eventually fell asleep and it is while you were asleep the victims started to make a plan to leave the house. While they were planning, a woman knocked on the door and asked for you. Indiana told her you were not there. Indiana woke you up and told you about the woman. You became angry, yelling at her. You got out of bed. Indiana said it was her house and that you had to go. You said, ‘Shut the fuck up. I’m going to bash you now.’ Again that is an uncharged act.
22 Later that day, 30 December, you told the two young women that you were leaving and that you would be back in 10 minutes. You told them they were not to leave. Once you had gone, the two girls put all of their belongings into the attic and ran to the train station. At some point around this time, Bianca told Indiana about what you had done to her in the car. Bianca later spoke to both of her parents. They thought she sounded terrified and upset.
23 The victims returned to their home late that night and discovered that you had broken in and left your belongings in the unit. At that point and in fear that you would return, they reported your sexual offending to the police. Police later attended the unit, where they found inter alia, the belongings of the victims stashed in the attic.
24 On 1 January 2018, you returned to the victim’s unit and broke in through the front door. You observed that your property was missing. You stole a television belonging to Indiana and personal cards belonging to Bianca. That is Charge 3 on the plea indictment of theft.
25 A week later you were arrested sitting in your vehicle at a service station in Melton. At the time you were disqualified from obtaining a driver’s licence. That is Charge 29, a summary charge, driving whilst disqualified.
26 You were interviewed by police. You admitted meeting the victims, breaking into the house, stealing the television and disposing of it, smoking ice with the two young women, staying at their home for a few days, travelling around in a manner consistent with what they had described as the alleged drug dealings, although you did not admit any drug dealing at that time. You admitted having sex with the older girl, being Indiana, and that you thought Bianca was attractive, however you denied touching Bianca at any time or intimidating the victims.
Reasons for sentence
The sentencing judge observed that the appellant’s conduct made clear his ‘control over the situation’ and found that this was ‘serious offending’, particularly the rape.[7] She determined that ‘general deterrence, denunciation and community protection must be at the forefront of [her] sentencing considerations’.[8]
[7]Sentencing Remarks, [28]–[29].
[8]Ibid [30].
Her Honour noted the seriousness of digital penetration, and found that the rape was ‘at the upper end of the mid-range of seriousness’.[9] Similarly, the attempted rape was ‘at the upper end of the mid-range of seriousness for that offence’.[10]
[9]Ibid [31].
[10]Ibid [33].
Turning to the sexual assault, her Honour stated the following:
35Not to be deterred by her resistance of you in the car, you later the same evening, committed the sexual assault of her on the bed. Even though the nature of that offending is at the lower end, your moral culpability for that offending is high, given it occurred after that earlier episode and it was preceded by you supplying her with ice. Once the girls had managed to get away from the unit and in an act of revenge, you stole their television. Knowing they were young and living on their own, that was a nasty act. It was another attempt by you to exert your control over them.[11]
[11]These remarks are the subject of ground 2.
Her Honour cited the victim impact statement of the primary victim, who said she experienced ‘high levels of fear’ at the time, and ongoing fear and heightened anxiety since, requiring anti-depressant and sleep medication.[12]
[12]Sentencing Remarks [39].
The sentencing judge then turned to the personal circumstances of the appellant which were outlined in reports from Ms Carla Lechner, psychologist, and Mr Martin Jackson, neuropsychologist.[13]
[13]Ibid [40].
The appellant was aged 42 at the time of the sentence. His father was apparently a violent man, both towards the appellant’s mother, and the appellant himself. His father left the family when the appellant was six years old. His mother worked as a house cleaner and an elderly care worker, and the appellant described a ‘positive’ relationship with her.[14]
[14]Ibid [40].
At eight years old, the appellant’s brother sexually assaulted him on a number of occasions, which he was reluctant to talk about and ‘made [him] angry for a long time’.[15] Growing up, the brothers had a fractious relationship. After his brother king hit him on one occasion he was hospitalised at age 18. Mr Jackson opined that the appellant likely sustained an acquired brain injury as a result of that event.[16]
[15]Ibid [41].
[16]Ibid [42].
The appellant’s maternal grandfather took on a father figure role for him and they were ‘close’. He passed away when the appellant was 13, at which time the appellant said that he started ‘getting into trouble’, becoming involved in petty crime.[17] At age 14 he first spent time in juvenile detention for property offences.[18]
[17]Ibid [43].
[18]Ibid [44].
During his teen years, the appellant was placed in a number of boy’s homes, commenced use of drugs, initially cannabis, but by age 15, amphetamines and eventually methamphetamines.[19] Occasionally, while living in the boy’s homes, the appellant’s father would call, drunk, which had a ‘distressing’ effect. Her Honour stated that the appellant ‘harboured significant anger from [his] childhood years as a result of both [his] absent father and because of the sexual abuse and resulting difficult relationship with [his] brother’.[20]
[19]Ibid [44].
[20]Ibid [46].
At school, the appellant had difficulty learning to read and write, but was a good sportsman. He was also bullied. He was suspended due to fighting and absenteeism, and was eventually expelled during Year 8, having no other formal schooling or education.[21] He has experienced an interrupted work history, and has often lost jobs because of drug and alcohol problems or because of his criminal behaviour.[22]
[21]Ibid [47].
[22]Ibid [48].
As to his criminal history, her Honour described it as ‘extensive,’ though it did not include sexual offending. It did include violent offences, dishonesty offences, and past offences against women. More specifically, it included offences relating to various assaults, recklessly causing injury, and a threat to kill, as well as breaches of family violence intervention orders. A number of these offences were committed against the appellant’s former partner, Tara, which relationship lasted on and off from when the appellant was aged 26 to 34.[23]
[23]Ibid [51].
The appellant spent time in prison between 2009 and 2011. Following his release in late 2011, there was a gap in his offending, whereupon he moved to Bendigo and met Zoe Richmond, with whom he had twin sons (who were 6 at the time of the sentence). After three years of this relationship, the appellant relapsed into heavy drug use, and Ms Richmond left with the twins. She was forced to seek an intervention order against the appellant.[24]
[24]Ibid [52]–[53].
The appellant’s offending then resumed, which included threatening serious injury and assault with a weapon (in July 2016), as well as specific offences in relation to Ms Richmond in 2015 and 2016.[25]
[25]Ibid [54]–[55].
The appellant was a heavy user of methamphetamine prior to his arrest for these matters in January 2018.[26] However, his ‘priority’ was now to commence a legal process to obtain some access to his children.[27]
[26]Ibid [56].
[27]Ibid [57].
The sentencing judge recorded the appellant’s significant mental health history, which included suicide attempts, and a diagnosis of general depression and substance use disorder.[28] However, it was not suggested that Verdins[29] principles applied.
[28]Ibid [58]–[60].
[29]R v Verdins (2007) 16 VR 269; [2007] VSCA 102.
Both parties accepted that the principles in Bugmy v The Queen[30] applied, and her Honour found that ‘there was significant disadvantage’ that was to be taken into account when exercising the sentencing discretion.[31] However, she also noted that the appellant’s ongoing drug and alcohol abuse, in circumstances where he knew of his propensity for violence, may mean that his moral culpability remains high in spite of Bugmy principles.[32]
[30](2013) 249 CLR 571; [2013] HCA 37 (‘Bugmy’).
[31]Sentencing Remarks [63].
[32]Ibid [62]–[65].
The acquired brain injury (diagnosed as highly likely by Mr Jackson) did not evidence a disorder of impulse control, and the appellant’s counsel conceded that there was no causal link between the injury and the offending.[33] However, Mr Jackson did opine that the appellant’s mental state as a result of his acquired brain injury would have a significant impact on his ability to function on a day-to-day basis. To that end, the sentencing judge considered that his time in custody is likely to be more difficult.[34]
[33]Ibid [68].
[34]Ibid [68].
Her Honour also took into account that the appellant had been in protection for almost the entirety of his time on remand as a result of the nature of the charges he faced. The appellant has found this particularly ‘difficult’. However, this did not mitigate his punishment in any significant way.[35]
[35]Ibid [70].
Her Honour went on to deal with the fact that the appellant had pleaded guilty to the offences the subject of the plea indictment as follows:
71 You pleaded guilty to a number of offences, as I have outlined, on the plea indictment and you are entitled to a discount in sentence because of your plea of guilty to those matters. I accept it is a reflection of some, though limited, remorse. You are entitled to a utilitarian discount for those pleas of guilty, giving the saving of time and expense, however, this is limited by the reality that the substantial matters did go to trial and the complainants did have to undergo cross-examination about more sensitive topics.
72 You have not demonstrated any remorse for your offences against those young women, i.e., the sexual offending in relation to Ms Sennitt or the theft of items in relation to both of them. You do not receive any benefit of having shown regret, empathy or insight, though, of course, you are not disadvantaged, it is not an aggravating factor that you elected to run a trial, but you do not receive the benefit of any plea or show of remorse.[36]
[36]These remarks are the subject of ground 1.
Her Honour observed that the appellant has serious issues with violence, particularly towards women. Ms Lechner assessed his risk of further sexual offending as moderate/high. Any prospects of rehabilitation were therefore ‘very guarded’, particularly due to his chronic drug use and issues of anger.[37]
[37]Sentencing Remarks [73].
In conclusion, her Honour stated:
75General deterrence is important. That is, I must impose a sentence which is likely to deter others from behaving as you did. Specific deterrence is important. Community protection is important. Denunciation of your conduct on behalf of the community is important.[38]
[38]Ibid [75].
Ground 1 – Finding that appellant had not demonstrated remorse for theft of television[39]
[39]Despite references in this ground to theft of personal cards, as highlighted by the respondent, charge 3 of the plea indictment related only to the theft of the television.
Appellant’s submissions
The appellant submitted that the sentencing judge erred in indicating that the appellant had not demonstrated any remorse for the theft at para 72 of the reasons. This was in error since the appellant had pleaded guilty to the theft charge. It was also inconsistent with para 71 which recognised that the appellant had pleaded guilty to the offences on the plea indictment (which included the theft charge), which was a reflection of ‘some, though limited, remorse.’
Respondent’s submissions
The respondent highlighted that her Honour had correctly identified that the appellant had pleaded guilty to the theft charge in para 71. In oral submission Counsel also submitted that para 71 reflected that there was only limited remorse in respect of some of the offences on the plea indictment (which did not include the theft).
It was otherwise open to find that the appellant had not demonstrated remorse with regard to the charge of theft (at para 72). Thus, the appellant sought to justify the theft by stating that the victims had ‘taken off with [his] stuff’ at interviews he gave with the police and with his psychologist. His ‘admissions’ were therefore in the nature of self-justification and victim blaming. In oral submission the respondent submitted that, given there was no evidence of remorse at all, any contrary finding would in fact be perverse.
Analysis
There was ample evidence from which the sentencing judge could form the view that the appellant did not show remorse or empathy regarding the theft given what the appellant had said at his interviews. There was hence no error in the finding made at para 72.
The sentencing judge’s finding at para 71 that the plea to the offences on the plea indictment reflected ‘some, though limited, remorse’ is otherwise explicable when read as a reference to ‘some’ of the charges the subject of the plea indictment (but not the theft charge). Although this might have been expressed more clearly, the reasons of the sentencing judge should be read ‘as a whole, fairly and not perversely’,[40] focussing on the substance, rather than the form.[41] This Court should also not seek to discern error by engaging in overzealous scrutiny, or minute examination, of sentencing reasons.[42]
[40]Saxon v R [2014] VSCA 296, [47].
[41]R v Hay [2007] VSCA 147, [30].
[42]Saxon v R [2014] VSCA 296, [47]; R v Hay [2007] VSCA 147, [30].
A fair reading of paras 71 and 72 is therefore that there was simply no evidence of actual remorse in respect of the theft charge notwithstanding the plea. There is no error or inconsistency as alleged, and no error is demonstrated.
Ground 2 – Double punishment for supplying drug of dependence to a child
Appellant’s submissions
The appellant cited para 35 of the sentencing judge’s reasons. He submitted that the sentencing judge treated the supply of ice as an aggravating feature of the offending involved in the sexual assault charge, and viewed that as increasing his moral culpability for that charge.
Counsel accepted that the supply of the drug was a relevant aggravating factor. However, it was submitted that care needed to be taken that the sentence to be imposed for the sexual assault offence did not contain any portion that was referable to the offence relating to the supply of drugs to a child. Given the sentence imposed, and the sentencing remarks, the necessary care was absent. Rather, the sentencing judge erred by doubly punishing the appellant.
Respondent’s submissions
The respondent submitted that, where an offender is sentenced for two offences, where the same fact is an element of one, and is also a circumstance of aggravation of the other, a sentencing judge must take into account the sentence imposed on the first offence, and give credit against the second offence, to avoid doubly punishing the offender twice for the same act.
In the present case, the sentencing judge was entitled to take into account the fact that the victim was supplied methylamphetamine prior to the sexual assault, as an aggravating feature. The moral culpability of the appellant was heightened, given that he preyed upon a vulnerable victim compromised by the effect of a drug.
The sentencing judge was silent on the extent to which the sentences were moderated to avoid double punishment, but the sentences imposed, and the order for cumulation, speak for themselves, given the seriousness of the offending and lack of guilty plea on the sexual assault charge.
Analysis
The prohibition against double punishment recognised at common law is also prohibited by s 51 of the Interpretation of Legislation Act1984 which provides:
51 Provisions as to offences under two or more laws
(1) Where an act or omission constitutes an offence under two or more laws, the offender shall, unless the contrary intention expressly appears, be liable to be prosecuted under either or any or all of those laws but shall not be liable to be punished more than once for the same act or omission.
…
In Atkinson v R this Court also said:
Applying the language of s 51, the focus in a case such as the present must be on the act (or omission) said to constitute the offence. If the act (or omission) might constitute an offence under two or more laws then a person may be prosecuted under either or any or all of those laws, so long as he or she is not punished more than once for the same act(or omission).[43]
[43][2021] VSCA 127, [21] (‘emphasis in original’).
Further to this, where the same fact is an element of one offence, and also an element of aggravation of another offence, care should also be taken to avoid double punishment. As this Court said in in Gorman v R:
[Section 51 of the Interpretation of Legislation Act 1984] will not necessarily be infringed because an offender is sentenced on two offences, and the same fact constitutes both an element of one offence and an aggravating circumstance of the other, so long as the sentencing judge avoids punishing the offender twice for the same act.[44]
[44][2019] VSCA 128, [38].
The focus of the inquiry is therefore whether the accused has been punished twice for the same act. In the present case the act referred to was the act of supplying a drug of dependence as part of the offence of supplying a drug of dependence to a child contrary to s 71B(1) of the Drugs Poisons and Controlled Substances Act 1981. There was no overlap between this act and any of the elements of the sexual assault charge under s 40(1) of the Crimes Act1958.
Moreover, the sentencing judge’s reference to the supply of ice to the victim in para 35 did not reflect any punishment for the act of the supply. Rather, it reflected punishment for the act of the sexual assault (constituted by touching the legs) in the aggravated circumstances. By noting that the sexual assault was ‘preceded by’ the supply of ice, the sentencing judge focused on the appellant’s increased moral culpability in engaging in the sexual assault. A natural reading of para 35 is therefore that the aggravating circumstance was the predation on the vulnerability of the victim after, and in the circumstances of, the other offending, rather than the supply of the drug of itself.
No issue of double punishment therefore arises.
Grounds 3 and 4 – Manifest excess
Appellant’s submissions
The appellant accepted that the overall offending was very serious, and did not complain with respect to the charges 1 to 3 on the trial indictment. However, he submitted that four of the charges involved low-level categories of offending.
First, the sexual assault charge (charge 4 on the trial indictment) was in a different category of seriousness. This charge involved a rubbing of the victim’s leg with no genital contact. Although it had been preceded by the other more serious offending, and occurred in the context of the supply of the ice, the appellant needed to be separately punished for this offending.
Secondly, the supply of ice charge involved small quantities. The child involved was also 17 years old, and an experienced ice user. In oral submission counsel also highlighted that, although there was considerable encouragement in respect of the victim’s first use of the drug, thereafter the victim became a willing participant.
Thirdly, the trafficking charge involved trafficking over a single day in an amount that could not be quantified by the prosecution. The appellant also had no prior convictions for trafficking or supply of drugs.
Finally, the theft charge involved a theft of a television set in circumstances where the appellant had formed the view that the victims had stolen his property.
The mitigating factors to be taken into account included the guilty plea, as well as the Bugmy principles (which the sentencing judge accepted applied in this case). There was also a significant totality issue, such that the sentencing judge was required to impose appropriate orders for cumulation.
The appellant should therefore be resentenced in a way that lower individual sentences are imposed on the relevant charges, and reduced orders for cumulation are made that better reflect the totality issue.
Respondent’s submissions
The respondent reiterated the appellant’s concession that the overall offending was ‘very serious’, and submitted that it involved a number of aggravating features and had a devastating impact. The respondent also noted the appellant’s lengthy criminal history involving multiple offences of violence against women.
As to the sexual assault charge, the respondent accepted that the nature of the offence was at the lower end of seriousness. However, that a number of aggravating features rendered the moral culpability of the appellant high in the relevant context. Those factors included first, that the appellant was a stranger; secondly, that the offence occurred in the victim’s home following the violent rape and attempted rape; thirdly, the significant age disparity, and finally that the victim was vulnerable and drug-affected. The appellant also pleaded not guilty to this offence, showing no remorse. A sentence of two years’ imprisonment was therefore within range.
In oral submission counsel accepted that the sentence imposed in respect of the sexual assault charge was perhaps ‘high in range,’ but maintained that it needed to be viewed in context.
As to the supply of drug to a child, this was a serious example of offending of this kind, involving four discrete occasions of supply of a dangerous drug to a child. The first of those occasions occurred in the context of supplying the drug over protest. While the victim had previously used drugs, she was attempting to ‘get clean’, at the time. A sentence of three years’ imprisonment was also within range given the appellant was exercising control and influence over his victim.
As to the theft, the offending occurred in the days following a violent rape and sexual assault, and was an act of revenge for a perceived slight, or as her Honour stated, a ‘nasty act’. The appellant has lengthy prior criminal history for dishonesty offences, including multiple convictions for theft. A sentence of two years’ imprisonment was within range even if it was ‘high in range’.
As to the trafficking, it was accepted that the offending occurred over one day, that the amount of drugs could not be quantified, and that there were no prior convictions for trafficking. However, this was a serious offence, and the offending involved multiple transactions to different people. A sentence of two years’ imprisonment was within range.
The respondent submitted that the sentencing judge carefully considered the mitigating factors, and necessarily weighed them against the sentencing objectives, such as general and specific deterrence, protection of the community and denunciation. Her Honour was ‘very guarded’ as to prospects of rehabilitation, and the clinical psychologist found that the risk of further sexual offending was moderate/high.
Finally, the orders for cumulation were modest – properly reflecting the seriousness of each offence, balanced against the need to moderate the overall length of imprisonment to ensure the sentence is not crushing. The overall sentence was therefore within range.
Analysis
This Court said in Wan v Queen:
In order to establish manifest excess, the applicant must show that something went obviously, plainly or badly wrong in the exercise of the sentencing discretion. The question to be asked is whether the sentence imposed was wholly outside the range of sentencing options available to the judge, not whether some other sentence could have been imposed.[45]
[45][2019] VSCA 81, [36] (citations omitted).
As the sentencing judge correctly observed, this offending occurred in a particular context wherein the appellant was exercising a measure of control, consistent with the age disparity, and having invited himself into the victims’ home. The appellant also had a troubling criminal history of offences against women.
However, it is also important to arrive at an appropriate individual sentence in respect of each offence, having regard to the objective seriousness of that particular offending. As acknowledged by the sentencing judge, the principles in Bugmy were also at play, and reduced the moral culpability of the appellant to some extent. There was also the plea of guilty to be considered in relation to the charges the subject of the plea indictment.
Having regard to these factors, the sentence in respect of the theft was wholly outside the range of available sentences. The offence involved a chattel of very small value, being a television set.[46] Notwithstanding that there was some prior relevant criminal history, a sentence of two years is manifestly excessive.
[46]Although there was no precise value given for the television, the appellant stated in his interview with the police that he had sold it to a friend for ’50 bucks’.
Next, it is true that the sexual assault charge occurred in a particular context. Further, that the appellant was to be sentenced as a serious sexual offender in respect of this charge so that the protection of the community is paramount.[47] Nevertheless, the offence, considered objectively, was constituted solely by the rubbing of the victim’s legs near her genital area. Notwithstanding that the appellant was unable to show a specific error (ie double punishment), the sentence of two years was so excessive as ‘bespeaks error’.[48]
[47]Sentencing Act 1991 s 6D(a).
[48]House v The King (1936) 55 CLR 499, 505; [1936] HCA 40; Lieu v R [2016] VSCA 277, [50].
In respect of the supply of drug to a child charge, the appellant did apply some pressure on the victim in respect of the first instance of supply. The case is also distinguishable from the decision in R v Harkness[49] (cited by the appellant) where the victim had several times asked the accused to supply her with heroin and he had refused. However, after the initial occasion, the victim in this case appears to have been a willing participant over the course of the remaining days. The victim was also experienced with drug use, and was almost of adult age. Having regard to all of these matters, a sentence of two years is also wholly outside the range.
[49][2001] VSCA 87.
Finally, there is the sentence imposed in respect of the trafficking charge. Even though the amount was not quantified, the appellant engaged in multiple transactions with different people. The principles of general deterrence and denunciation are highly relevant and support the sentence imposed in respect of this charge.
By way of conclusion, then, the sentences imposed in respect of the theft charge (charge 3 of the plea indictment), the sexual assault charge (charge 4 of the trial indictment); and the supply of drug of dependence to a child charge (charge 1 of the plea indictment), are manifestly excessive and will be set aside. In all the circumstances sentences of three months (for the theft); nine months (for the sexual assault); and two years (for supplying the drug) will be substituted.
It is necessary in such circumstances to revisit the question of cumulation having regard to the substituted sentences. In the result, I would resentence the appellant in accordance with the following table:
Charge Offence Maximum Sentence Cumulation Trial Indictment 1 Assault with intent to commit a sexual offence 15 years 3 years 8 months 2 Rape 25 years 7 years Base 3 Attempted rape 20 years 4 years 10 months 4 Sexual assault 10 years 9 months 3 months Plea Indictment 1 Supplying a drug of dependence to a child 15 years 2 years 8 months 2 Trafficking in a drug of dependence 15 years 2 years 6 months 3 Theft 10 years 3 months 1 month Related summary charge 29 Driving whilst disqualified 4 months (first offence); 2 years (subsequent offence) 3 months - Total Effective Sentence 10 years’ imprisonment Non-parole period 7 years
Insofar as the plea indictment is concerned, I declare pursuant to s 6AAA of the Sentencing Act 1991 that, but for the appellant’s pleas of guilty, I would have sentenced him to a total effective sentence of ten years and nine months’ imprisonment, with a non-parole period of seven years and six months.
All other orders of the County Court should be confirmed.
3
9
0