Andrews v The King
[2025] VSCA 26
•6 March 2025
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2023 0167 |
| DAVID CHARLES ANDREWS | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGES: | KAYE and T FORREST JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 13 February 2025 |
| DATE OF JUDGMENT: | 6 March 2025 |
| MEDIUM NEUTRAL CITATION: | [2025] VSCA 26 |
| JUDGMENT APPEALED FROM: | [2023] VCC 1558 (Judge Tinney) |
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CRIMINAL LAW – Appeal – Sentence – Several offences including sexual offence, sexual assault and threats to inflict serious injury and rape – Total effective sentence of 7 years’ imprisonment – Non-parole period of 5 years – Whether judge failed to avoid double punishment – Whether judge failed to apply principle of totality – Applicant was punished for distinctive, non-common acts – Sentence and orders for cumulation indicate judge sought to avoid double punishment – No failure to apply principle of totality in judge’s reasons, sentence or orders for cumulation – Leave to appeal refused.
CRIMINAL LAW – Appeal – Sentence – Whether sentence was manifestly excessive – Dreadful offending requiring condign punishment – Protection of community – Limited mitigating factors – No underlying error in sentences and orders for cumulation – Leave to appeal refused.
Interpretation of Legislation Act 1984, s 51(1); Sentencing Act 1991, s 5(2)(b).
DPP v Dalgliesh (Pseudonym) (2017) 262 CLR 428; R v Kilick (2016) 259 CLR 256, considered; Pearce v The Queen (1998) 194 CLR 610, referred to.
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| Counsel | |||
| Applicant | Ms G Connelly SC with Ms J Xie | ||
| Respondent: | Mr R L Gibson KC | ||
Solicitors | |||
| Applicant: | Richard Davis & Associates | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
KAYE JA
T FORREST JA:
On 22 August 2023, the applicant pleaded guilty in the County Court to several serious offences and a related summary offence. On 30 August 2023 he was sentenced as follows:
Charge on indictment
Offence
Maximum Penalty
Sentence
Cumulation
1 Assault with intent to commit a sexual offence[1] 15 years’ imprisonment 5 years and 8 months’ imprisonment Base 2 Threat to inflict serious injury[2] 5 years’ imprisonment 1 year and 9 months’ imprisonment 5 months 3 Sexual assault[3] 10 years’ imprisonment 2 years and 3 months’ imprisonment 8 months 4 Threat to commit a sexual offence[4] 5 years’ imprisonment 1 year and 4 months’ imprisonment 3 months Summary Charge 9 Commit indictable offence on bail[5] 3 months’ imprisonment or 30 penalty units 14 days’ imprisonment N/A Total Effective Sentence: 7 years’ imprisonment Non-Parole Period: 5 years’ imprisonment Pre-sentence Detention Declared: 255 days Section 6AAA Statement: 8½ years’ imprisonment, non-parole 6½ years. Other relevant orders Serious sex offender on charge 4. [1]Contrary to s 42(1) of the Crimes Act 1958.
[2]Contrary to s 21 of the Crimes Act 1958.
[3]Contrary to s 40(1) of the Crimes Act 1958 as amended by the Crimes Amendment (Sexual Offences) Act 2016.
[4]Contrary to s 43 of the Crimes Act 1958 as amended by the Crimes Amendment (Sexual Offences) Act 2016.
[5]Contrary to s 30B of the Bail Act 1977.
The applicant seeks leave to appeal against this sentence on the following proposed grounds:
Ground 1: The Judge erred in his approach to sentencing for multiple offences.
Particulars:
(a)The Judge failed to avoid double punishment for single acts.
(b)The Judge failed properly to apply the principle of totality.
Ground 2: The individual sentences, orders for cumulation, total effective sentence and non-parole period are manifestly excessive in all the circumstances.
We have concluded that the application for leave to appeal should be refused. What follows are our reasons for this.
Summary of offending
An Amended Summary of Prosecution Opening (‘ASPO’) was tendered on the plea as an agreed statement of facts. We shall reproduce portions that are relevant to this application.
(1)The offender, David Charles Andrews, was 42 years old at the time of the offending.
(2)On 6 December 2022 Mr Andrews entered two Undertakings of Bail to return to the Latrobe Valley Magistrates Court on 15 February 2023. He was on bail at the time of this offending. (Summary charge 9 — Commit an Indictable Offence Whilst on Bail)
(3)At about 3.15am on 17 December 2022, Mr Andrews was at the bus stop near Frawley Road and Olive Road intersection in Eumemmerring.
(4)[Ms Mai Thi Tran][6] arrived by bus at this location, with the intention of picking up a nearby vehicle belonging to her friend, [Tina],[7] before attending work in Dandenong. At 3.20am, [Ms Thi Tran] ‘tapped off’ her Myki card and noticed Mr Andrews walking in the middle of Frawley Road. She alighted from the bus alone. When the bus drove off, Mr Andrews approached her and stated, ‘Hey, hey, what are you doing? Oh, I thought you were Jane’. [Ms Thi Tran] responded, ‘Oh okay’ and attempted to avoid eye-contact. Mr Andrews apologised and she walked off.
(5)[Ms Thi Tran] described Mr Andrews as being Caucasian, in his 40s, 170cm tall, with a medium build and wearing a red hooded jumper and dark coloured tracksuit pants.
(6)[Ms Thi Tran] walked a short distance east from the bus stop then south along a walking path. At 3.21am, while walking, she started speaking to her friend [Tina], on her mobile telephone.
(7)Mr Andrews followed [Ms Thi Tran] after she left the bus. Approximately half-way down the 250-metre-long walking track, and while still on the phone, she heard running footsteps behind her. As she began to turn, she was tackled to the ground by Mr Andrews. He leapt on t [sic] other [sic] back and put one hand on her mouth to cover it. She saw her [sic] was wearing a red hoodie and she thought it was the same man who approached her near the bus stop. (Charge 1 — Assault with Intent to Commit a Sexual Offence).
(8)Mr Andrews used his body weight to hold [Ms Thi Tran] face down on the grass. [Ms Thi Tran] moved her head to breathe and yell out in pain. She said, ‘Get off me’ and Mr Andrews responded, ‘If you yell and scream one more time, I’m going to stab and slit your throat.’ He further stated, ‘I’m going to fuck you, you’re going to take my cock, or I’ll rape you’. He repeatedly said these phrases ‘over and over’. (Charges 2 and 4 — Threat to Inflict Serious Injury and Threat to Commit a Sexual Offence).
(9)[Ms Thi Tran] did not observe a weapon but stopped yelling and resisting out of fear Mr Andrews would carry out his threat to stab her. [Ms Thi Tran] froze and when she stopped resisting, Mr Andrews stated, ‘Good girl’ and kissed her on the hood of her jumper that was covering her head. He stated, ‘good girl’ and kissed her head multiple times. [Ms Thi Tran] was in a foetal position at this point, with her left hand stuck under her body, and her right hand pinned down by Mr Andrews’s [sic] hand. Mr Andrews repeatedly thrust his genital area against her buttocks ‘the whole time’. While this was occurring, she felt pain to her right leg where she had recently suffered a dog bite. [Ms Thi Tran] does not believe Mr Andrews removed his clothing or attempted to remove hers. (Charge 3 — Sexual Assault)
(10)[Tina] heard through the phone [Ms Thi Tran] scream out something like, ‘What the fuck are you doing?’ ‘Stop it.’ She then heard a male voice appear to whisper near to the phone receiver, ‘You suck my cock now, you bitch. You do it now’. [Tina] heard [Ms Thi Tran] say, ‘No, no, get off me!’ and ‘Stop it, stop it!’ Around this time, she heard what sounded like a physical struggle. The male was heard to repeat the demands to ‘suck his cock’. [Tina] heard the male state about three times words to the effect of, ‘You shut up and be quiet or else I’ll slit your throat’, after which point [Ms Thi Tran] was not heard to scream or struggle.
(11)[Tina] feared the male would carry out his threats. She called ‘000’ from Sydney while [Ms Thi Tran] was still being offended against but was unable to convey where police were needed.
(12)Around this time, [Ms Thi Tran’s] phone screen lit-up. [Ms Thi Tran] believed Mr Andrews was startled by either her phone or by a person she observed walking a distance away. Mr Andrews suddenly got off her and ran north along the walking path and turned east on Frawley Road in the direction from where he had come.
(13)At 3.25am, [Ms Thi Tran] received a phone call from [Tina] in which she indicated she was running away. The timing of the two phone calls from [Tina] indicates the offending on the walking path lasted less than four minutes. At 3.28am, [Ms Thi Tran] called ‘000’ in distress and reported the incident.[8]
[6]A pseudonym.
[7]A pseudonym.
[8]Amended Summary of Prosecution Opening, [1]–[13].
A police interview was commenced but suspended as the applicant was assessed by a Forensic Medical Officer as being not fit for an interview.
The plea hearing
The prosecution submitted on the plea that:
(a)this is a serious example of the offence of assault with intent to commit a sexual offence;
(b)the victim was vulnerable, walking alone in the early hours of the morning with few people in the vicinity;
(c)the applicant physically assaulted her, threatened her with serious injury by stating that he would slit her throat. He only desisted from offending when he saw the victim’s phone light up;
(d)the applicant was on bail and an adjourned undertaking at the relevant time;
(e)the impact on the victim would have been terrifying;
(f)the matter resolved to a plea at an early stage of proceedings;
(g)the applicant has limited insight into his offending as illustrated by his accounts of the offending to Dr Cunningham, his psychologist;
(h)general deterrence, denunciation, just punishment, specific deterrence and protection of the community must be primary sentencing considerations;
(i)the applicant’s prospects for rehabilitation are guarded;
(j)the principles of totality have application given the four charges arise out of the same incident; and
(k)charges 1, 3 and 4 are ‘sexual offences’ as defined in schedule 1 part 1 of the Sentencing Act 1991.[9] If the applicant received a term of imprisonment on charges 1 and 3, he fell to be sentenced as a serious sex offender on charge 4.
[9]Sentencing Act 1991, sch 1 pt 1.
The defence submitted on the plea that:
(a)the applicant indicated an intention to plead guilty at the earliest opportunity;
(b)his plea evidences remorse;
(c)he is entitled to a ‘Worboyes’ sentencing benefit;[10]
(d)he had spent 248 days (as at 22 August 2023) on remand on these matters;
(e)his prior criminal history did not include any sexual offences;
(f)drug use had been a feature of his prior criminal offending;
(g)a clinical psychologist, Dr Cunningham, is of the view that the applicant presents with a ‘substance induced psychotic disorder’.[11] In Victoria it is accepted that drug induced psychosis cannot lead to any serious reduction in moral culpability;
(h)there is no evidence that the applicant has a predilection to sexual assault except when in a psychotic state;
(i)a term of imprisonment with a non-parole period is the only realistic sentencing disposition;
(j)some relevant examples of sentences for assault with intent to commit a sexual office were cited;[12] and
(k)the principle of totality has relevance. Given that ‘[t]he offences all occurred during one brief incident’ the sentences should be largely concurrent.
[10]Worboyes v The Queen (2021) 96 MVR 344 (‘Worboyes’).
[11]Psychological report of Dr Aaron Cunningham dated 16 August 2023, 2 (‘Dr Cunningham’s Report’).
[12]Director of Public Prosecutions vMitchell (a pseudonym) [2018] VCC 912; Director of Public Prosecutions v Mitchell Douglass (a pseudonym) [2018] VCC 242; Duale v The Queen [2022] VSCA 80; Wills [2021] VCC 2051; Director of Public Prosecutions vHurren [2021] VCC 1183; Director of Public Prosecutions vJelonek [2021] VCC 324.
Dr Cunningham’s report outlined the applicant’s substance induced psychotic disorder and that he had both auditory hallucinations and paranoid disillusions. If he continued abusing drugs, he had a ‘high risk of offending’.[13] The report stated that:
[the applicant] lacked insight into the cause of his offences and continued to refuse to believe he had acted with intent to harm. In my opinion, Mr Andrews’ mental state at the time of the offence was significantly impaired by his drug use and associated psychosis. He did not appear to be capable of excercising [sic] appropriate judgement with regard to his offence behaviour and their consequences.[14]
[13]Dr Cunningham’s Report, 2.
[14]Ibid.
On the plea hearing, defence counsel cautioned about the laying of discrete charges that occurred during the one continuous transaction:
HIS HONOUR: Having been thrown down to the ground by him, having been silenced by him, having had threats issued to slit her throat, threats issued to sexually penetrate her, and that's the setting of him – her arm pinned down and one arm held by him, that’s the setting of the sexual assault.
[DEFENCE COUNSEL]: It is, and if I could say, Your Honour, it’s really the basis of the fundamental complaint I make about this and that is the four-minute incident has been charged with a number of discrete offences and it results in there being overlap even though there are discrete offences. In my submission there’s a degree of artificiality involved in the sentencing in this case that really arises from the way in which the charges are laid.
HIS HONOUR: Right.
[DEFENCE COUNSEL]: And Your Honour’s just identified part of it and that is the sexual assault has to be seen in the context of the other offences, and Your Honour just outlined the circumstances of the other offences as part of the context of the sexual assault, and I accept that that’s right and it is the context for the sexual assault but he’s to be sentenced separately for all of those other actions. It’s for those reasons that I submit there has to be a significant degree of concurrency in respect of the sentences.
HIS HONOUR: Yes, all right.
Reasons for sentence
We shall summarise his Honour’s comprehensive reasons for sentence.
Gravity of the offending
The judge summarised the applicant’s offending. He opined that ‘this was serious offending indeed’ and noted that it occurred while the applicant was on bail at the time of these events.[15] It was noted that the applicant, who was arrested 37 hours after the offending, was ‘ultimately judged [by police] to be unfit for interview’.[16]
Moral culpability
[15]DPP v Andrews [2023] VCC 1558, [9], [35] (‘Reasons’).
[16]Reasons, [22].
His Honour considered that the applicant’s account to Dr Cunningham was ‘replete with minimisation and plainly [was] factually incorrect’.[17] The judge inferred, in the absence of a victim impact statement, that this must have been ‘a terrifying incident’ for the victim which she will never forget.[18]
[17]Reasons, [23].
[18]Reasons, [27].
The judge reviewed the defence submissions on the plea which we have summarised earlier in these reasons.[19] The judge noted that defence counsel urged upon him that there ought to be some diminution in moral culpability owing to the existence of a drug induced psychosis at the time of offending. The judge referred to the prosecution’s written submissions on sentence which ‘were in no way controversial’[20] and which have been summarised earlier in these reasons.[21]
Personal circumstances
[19]See paragraph [7] of these reasons.
[20]Reasons, [36].
[21]See paragraph [6] of these reasons.
His Honour briefly summarised the applicant’s background.[22] The applicant was 43 years of age at the time of the plea. He was adopted as a baby and had a supportive relationship with his parents. His father survives and is as supportive as he can be, complicated as it is by the applicant’s drug use. The applicant went to local primary and secondary schools and was diagnosed with ADHD in year 7. He left school age 14 years and 9 months.
[22]Reasons, [36]–[48].
Generally, the applicant has remained in some form of employment during his adult life. He has had problems from an early age with drugs including cannabis, amphetamine, GHB and ice he became homeless as an adult and has a sizeable criminal history stretching back to 1999. The judge noted that there are no sex related matters in the applicant’s history and only a couple of violence-related matters in 2017. There have been threats to kill and a range of dishonesty offences, driving offences, Bail Act1977 offences, family violence offences, and conduct endangering both life and serious injury. The judge remarked that the prior offending was a ‘mixed bag but with nothing near as serious as the conduct that I am dealing with’.[23] We agree with that observation. The judge also noted that over time, the applicant had breached many court orders, some of which had drug assessment and treatment conditions.
[23]Reasons, [43].
His Honour also reviewed several relatively short gaol sentences — the most significant being a 12 month sentence (with a 6-month non parole period) concluding in March 2022. The applicant was required to serve the full term of the sentence, notwithstanding the non-parole period.[24]
[24]Reasons, [36]–[48].
The judge observed that upon leaving prison in March 2022, the applicant returned to live with his father, however relapsed again into drugs and was asked to leave by his father. He became homeless. The judge accepted that the applicant had been drug free during his 8 months in custody, and that he had been compliant with his medication regime. The judge correctly noted the relevance of the applicant’s prior criminal history to a judgment about rehabilitation, the need for specific deterrence and the need for community protection. He noted that community protection ‘looms large’ and that he will ‘try again to deter [the applicant]’.[25]
Early guilty plea and remorse
[25]Ibid.
The judge accepted that the applicant’s guilty plea was made at the earliest stage and that the community was spared the cost and effort of conducting a trial.[26] The victim was also spared the ordeal of giving evidence.[27] By facilitating the course of justice in this way, the applicant ‘must be rewarded’ by way of sentencing benefit.[28] An enhanced utilitarian benefit[29] was allowed under the ‘Worboyes’[30] principles.
[26]Reasons, [49].
[27]Reasons, [50].
[28]Reasons, [51].
[29]Our words.
[30]Worboyes (2021) 96 MVR 344; Reasons, [52].
The judge rejected the applicant’s submission that the applicant’s remorse could be inferred from his early plea.[31] The judge noted that the case against the applicant was overwhelming and that the applicant had made expressions of innocence to Dr Cunningham — to the effect that he ran into someone and knocked them over by accident and did not attempt a sexual assault.[32] As we have indicated, we consider this finding was open to the judge. The judge was troubled that during the plea the accused appeared to be disputing the summary of agreed facts.[33] Thus the judge was not satisfied on balance that there was any genuine remorse in this case.
Prospects of rehabilitation
[31]Reasons, [51].
[32]Reasons, [52]. See also paragraph [12] of these reasons.
[33]Reasons, [54]–[57].
The judge considered the applicant’s prospects for rehabilitation as ‘quite guarded’.[34] The judge again noted that the applicant had been drug free while in gaol which was ‘at least a start’, and that this was really serious offending.[35]
[34]Reasons, [42].
[35]Reasons, [59], [86].
Specifically, the judge rejected Dr Cunningham’s opinion based on the applicant’s account to him, that the applicant was suffering from a drug induced psychosis at the time of offending.[36] The applicant gave a detailed account to Dr Cunningham of past delusional thoughts, but although the applicant said he was ‘not perceiving reality’ at the time of the offending, he did not give any account of similar delusional thoughts at the time of offending.[37] The judge observed that on the offending occasion the applicant appeared to be conducting himself ‘quite rationally’.[38] The applicant approached the young woman on a pretext, he followed her until she was halfway down a walking path, crashed her to the ground from behind, swiftly covered her mouth, threatened to slit her throat to secure her silence and compliance, said ‘good girl’ when she complied, and ran off when startled either by the phone lighting up, or by the presence of a person walking in the distance.[39] We agree with the judge that this was ‘purposive, deliberate behaviour’, inconsistent with any drug induced psychosis.[40]
[36]Reasons, [54]–[56].
[37]Reasons, [61].
[38]Ibid.
[39]Ibid.
[40]Reasons, [62].
His Honour observed that the applicant’s moral culpability was not dependent on whether he was psychotic from drug use that night or simply disinhibited from that drug use. Notwithstanding this, the judge considered it more likely that the applicant was disinhibited by drugs.[41] Neither scenario would entitle the applicant to any reduction of his moral culpability given the applicant’s longstanding drug use and his awareness, as described to Dr Cunningham of the dangers of lapsing into psychotic state.[42]
[41]Ibid.
[42]Ibid.
The judge considered that the applicant ‘had minimal insight and precious little remorse’.[43] No COVID-19 related custodial burden was urged upon the judge and it was considered not to be a matter of any weight at all.[44]
[43]Reasons, [63].
[44]Reasons, [64].
The judge then returned to the offending conduct. The judge referred to the defence submission that the applicant’s real intention could not be inferred from his words to the victim, ‘I am going to fuck you, you’re going to take my cock or I’ll rape you’.[45] The judge rejected this submission and was satisfied to the criminal standard that the applicant had ‘penetrative acts in mind’.[46] The judge concluded, ‘I am satisfied beyond reasonable doubt that you assaulted her intending to rape her’.[47] We agree with this conclusion.
[45]Reasons, [67].
[46]Ibid.
[47]Ibid.
The judge repeated that this was ‘a serious example of the crime of assault with an intent’, as were the threat charges when considered in context.[48] The judge said:
Running from behind and taking her to the ground in that part of the pathway. Your intent was very clear. You professed it. This was terrifying behaviour. The submission made by your counsel that the assault with intent to commit a sexual offence fell at a low level was simply untenable. I reject it. This was not a low-level offence by any stretch of the imagination. There is the setting. The time. The place. A completely random attack in the early hours in a public place upon a vulnerable person, one who was a complete stranger to you just going about her business. There was the selection of the location. There was the level of force employed to take her to ground from behind. Whatever you might say to Dr Cunningham, you intended to assault this woman and you did so intending to take part in a non-consensual sexual act. So much can be gleaned from your guilty plea. What act did you intend? Your counsel made a submission that the court could not determine what act you intended. That he had no instructions on that score. Well you were spelling out the acts that you intended within seconds. They were penetrative acts that you had in mind. I am satisfied of that beyond reasonable doubt. Your counsel was suggesting that I could not have regard to what you said to the victim as to your intention. That what you said could not be relied upon in any way in inferring intent in relation to Charge 1. I reject that submission completely. Plainly the acts that you intended were penetrative. I am satisfied beyond reasonable doubt that you assaulted her intending to rape her. I judge this to be a serious example of the crime of assault with intent. Likewise, the threats were serious examples. The context is critical. The threat to cause serious injury was not just a throwaway line or words uttered with some distant and remote application. You were not making a threat as to what you would do to another person if you came across them. Or a threat to one person as to what you would do to another. You were not making a threat over the phone or in a letter. You were threatening the person you had just brought to ground in this terrifying attack. It was a chilling threat intimating that you possessed a weapon and that you would use it to stab her and slit her throat, if she would not shut up. You wanted her to respond to it. You wanted her to believe your words; that you meant what you said. It was designed to alter her conduct and to have her comply. The threat to inflict serious injury was a serious one indeed in my judgment. So too the threat to rape her.
As to the sexual assault itself, well again there was the context that I have described. It is an offence committed upon this vulnerable woman that you had attacked and threatened. She had been brought to ground in this isolated location. She was lying in the foetal position terrified, silent owing to your threat. She lay in that position with one arm under her and you pinned the other and you were grinding up against her bottom with your genital region.[49]
[48]Ibid.
[49]Reasons, [67]–[68].
The judge referred to counsel’s submission concerning the short duration of the offending:
Those sorts of submissions are often enough made for an event taking seconds. We are dealing with a number of minutes and it would seem like an eternity. If it had been a longer period, no doubt that would be a feature of aggravation. Your counsel spoke of the absence of a weapon. Had one been present and observed by her well that too no doubt would be a feature of aggravation.[50]
[50]Reasons, [69].
The judge then observed that whilst he must pay regard to the applicant’s guarded prospects for rehabilitation, ‘they must surrender sizable ground to other purposes including community protection’.[51] Those purposes were denunciation, community protection, specific deterrence and general deterrence, while bearing steadily in mind that the punishment must be just and proportionate.[52]
[51]Reasons, [72].
[52]Reasons, [72]–[73].
His Honour recited that he had regard to the maximum penalties, current sentencing practices and the impact of the offending.[53] He observed the statistics held by the Sentencing Advisory Council were extremely limited as was the assistance provided by the supposed ‘comparable cases’ referred to by defence counsel.[54]
Totality
[53]Reasons, [78]–[82].
[54]Reasons, [83]–[85].
Paragraphs [86] to [89] of the judge’s sentence are relevant to the appeal grounds and we reproduce them in full:
[86] I have taken a last look at the orders that I intend to make and I have done that to guard against a crushing outcome and to ensure that the total effect of my sentences is commensurate with your overall criminality here. I have a tight set of offences. There are 4 separate offences all occurring whilst on bail. Each have separate elements. Each no doubt would have some role to play in the overall impact or ordeal. There is of course no warrant for total concurrency and nor was your counsel suggesting there was. However there must be a decent level of concurrency in my view given the tight episodic nature of the event. I suppose on one view it might have been possible to have some of the charged conduct proceed as to essential context alone, without charges being laid. The trouble is when that is done people raise the ramifications of the case of Newman & Turnbull[55] and the inability to give any weight to the uncharged conduct. Instead, here I have 4 charges with all of the conduct occurring within minutes and with an obvious overlap which each party recognised in their submissions made to me. There is really a bit of an artificiality moving through this conduct as though there were many separate phases. There really were not. You intended to sexually assault the victim and everything you did was designed to bring that about. Rendering her silent by threats and mentioning what you intended. There is an obvious overlap between the conduct the subject of Charge 4 and Charge 1 which was not as confined as your counsel suggested. That conduct if uncharged would have informed Charge 1. There is an obvious overlap. However overall, whether broken down into separate offences or otherwise, this was really serious offending. Your overall criminality was very high whether broken down into its constituent parts or looked at globally. Given the manner in which you have been charged, the tight episodic nature of the offending and the extent of the overlap does require a decent degree of concurrency and it does demand that I ‘otherwise order’ in relation to the matter for which I am sentencing you as a Serious Sexual Offender.
[87] As I say, those provisions which apply only to Charge 4 remove the presumption of concurrency. They modify the principle of totality but totality of sentence is still an important consideration here. As tempting as it is to proceed by way of an aggregate sentence in this case, that course is not open to me given the existence of ‘relevant offences’ and the serious offender regime being enlivened, as it is in this case.
[88] Prison is a disposition of last resort. [Defence counsel] concedes that no other option arises here given the seriousness of the offending.
[89] I have to pass appropriate sentences. I must then order an appropriate level of cumulation. This will all lead to a sentence of imprisonment of a dimension where I am required by law to fix a non-parole period. Again, [Defence counsel] concedes that is the true position here. Whether you are paroled or not is not any concern of mine. Indeed I must not even consider that issue. That will be for the Adult Parole Board to determine.[56]
[55]R v Newman & Turnbull [1997] 1 VR 146.
[56]Reasons, [86]–[89].
This appeal — applicant’s submission on ground 1
The substance of ground 1(a) is that the judge doubly punished the applicant for single acts. The applicant contended that the duration of the offending and the charging of different acts within the continuous sexual assault is artificial. The acts were not separate and distinct but part of the one transaction. Thus, so the argument goes, sentencing in this case was very difficult. The judge did not address the need to avoid double punishment for single acts, nor, it follows, did his Honour address the need to avoid double punishment in imposing a sentence on the individual charges.
In the oral hearing of this application, senior counsel for the applicant referred to and relied upon an exchange between the prosector and the judge as to the ambit of charge 1. This exchange was the product of a submission by defence counsel that the scope of charge 1 concluded when the victim was knocked to the ground. It was contended that the court could not look at subsequent events, which were the subject of discrete charges, to draw any inference about the type of sexual assault intended by the applicant despite the fact that the substance of charge 4 involves a threat by the applicant to rape the victim.
Against that background, the following exchange occurred at the plea hearing:
[PROSECUTOR]: Well in terms of the Crown being able to prove that there was an intent to commit a sexual offence, without those threats it would be difficult to prove that, so the prosecution relies upon those threats ---
HIS HONOUR: I see.
[PROSECUTOR]: --- to prove Charge 1.
HIS HONOUR: Yes, I see. Yes.
[PROSECUTOR]: So they are part of Charge 1.
HIS HONOUR: Right.
[PROSECUTOR]: So the prosecution doesn’t say that Charge 1 ends before those threats are uttered, it’s a continuation.
HIS HONOUR: Well on one hand I mean the submission made by [Defence counsel] is right, there is an artificiality in some respects, I mean breaking it down into one offence or divided up or have one or break it up into two or three or four, the conduct is the conduct.
[PROSECUTOR]: I accept that.
HIS HONOUR: But the Crown is saying well it doesn’t end at going to ground, it’s — the conduct continues and we’ve severed out particular charges but one informs the other. In terms of his intent, he is spelling out his intent.
Senior counsel for the applicant on this application relied on this passage in argument and contended that, given the way the case was put on this extended factual basis, it was a very short step to conclude that the applicant was being punished twice for singular acts. Assuming the assault in the intent the subject of charge 1 continued until the end of this 4-minute episode, the applicant contended that therefore unless the judge was astute to avoid double punishment, there would be a high likelihood that the applicant was punished twice for the ‘thrusting’ sexual assault (charge 2), the threat to kill (charge 3) and the threat to rape (charge 4).
Senior counsel then referred to parts of his Honour’s sentencing remarks in particular to paragraphs [86] to [87] which we have reproduced earlier in these reasons.[57] It was submitted that had the judge been alert to the danger of double punishment he would have spelt out that danger in his sentencing reasons and declared an intention to avoid it, but he did not once use the phrase in his comprehensive reasons, nor did he use other words that conveyed an intention to avoid that consequence. Senior counsel further contended that in the structure of the sentence itself, considerable cumulation of sentences occurred, particularly charge 3 (thrusting sexual assault) on the base charge 1 (continuing assault with intent to rape). The threats were treated as ‘part and parcel’ of charge 1 and were treated as discrete charges involving substantial head sentences and orders for cumulation totalling 8 months.
[57]See paragraph [29].
Ground 1(b) was argued as an extension of ground 1(a). The applicant submitted that under the rubric of totality, the judge said he would allow for the ‘tight episodic’ nature the incident and the ‘obvious overlap’ of the incidents, however the asserted solution to these considerations was to moderate the total effective sentence through the orders for cumulation and concurrency. It was submitted that that approach did not address the separate and distinct problem of avoiding double punishment for single acts.[58]
[58]We refer to this in paragraphs [45]–[49] of these reasons.
Consideration — ground 1
Double punishment
The substance of ground 1(a) is that the judge failed to avoid doubly punishing the applicant for his criminal conduct over the 4-minute period of offending.
Section 51 of the Interpretation ofLegislation Act 1984 provides that:
Where an act or omission constitutes an offence under two or more laws, the offender shall, unless the contrary expression expressly appears, be liable to prosecuted under either, any or all of these laws, but shall not be liable to be punished more than once for the same act or omission.[59]
[59]Interpretation ofLegislation Act 1984, s 51(1).
In Pearce v The Queen, the common law position was expressed in similar terms.[60] McHugh, Hayne and Callinan JJ observed:
To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts.[61]
[60]Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 (‘Pearce’).
[61]Pearce (1998) 194 CLR 610, 623 [40]; [1998] HCA 57 (McHugh, Hayne and Callinan JJ).
In this application, the judge correctly considered that the offending was a ‘tight episodic nature’ and that there was a ‘bit of an artificiality’ in segmenting this 4-minute incident into four discrete criminal charges.[62] The judge clearly recognised the potential for ‘overlap’ between the charges on several occasions.
[62]Reasons, [86].
The applicant’s principal complaint at the oral hearing of this application was that a mischaracterisation of how the prosecution was putting its case led the judge into error. At face value, it seems that during discussion with his Honour at trial, the prosecutor contended that charge 1 was ongoing throughout the incident which involved the commission of charges 2, 3 and 4 during the same tight episode.
The prosecution case on charge 1 was clearly set out in the ASPO at paragraphs [7], [8] and [9].[63] Nowhere in the ASPO or in the prosecutor’s oral opening was there any suggestion of this extended factual basis for charge 1. The ASPO was tendered as an exhibit on the plea, and it was accepted by the defence to be an agreed statement of facts.
[63]See paragraph [4] of these reasons.
The issue became confused when, on the plea, defence counsel contended that the judge could not conclude beyond reasonable doubt what particular sexual offence the applicant intended when he assaulted the victim as alleged in charge 1. This submission was predicated on the erroneous premise that the judge was confined to considering only the conduct immediately surrounding that charge, and could not consider the applicant’s subsequent statement, ‘I’m going to fuck you, you’re going to take my cock, or I’ll rape you’, as this would lead inexorably to ‘double punishment’ as the threat was the subject of charge 4.
This submission was patently incorrect. It was open to the judge to consider the threat as evidence bearing on the applicant’s specific intention to rape in charge 1, and punish him for the act of making that threat when considering charge 4. The elements of charge 4 are neither identical or wholly subsumed within the elements of charge 1, or vice versa. The offences committed comprised separate elements and involved distinct but related criminality.
In dealing with charge 1 on the issue of the precise sexual act intended, the judge informed his conclusion by considering all of the applicant’s subsequent actions during the 4-minute episode, as he was entitled to do. Having done so, it was incumbent upon his Honour to be astute to avoid punishing the applicant twice for the same act.
The applicant contends that the judge’s reasons for sentence demonstrate double punishment; the respondent contends the opposite — the language of the reasons demonstrates that the judge was conscious to avoid that consequence.
We agree with the respondent on this issue. The applicant was punished for charges that all had separate elements, which, while at times factually overlapping, were made up by different acts.
Charge 1 concerned the intentional non-consensual application of force by the applicant to the victim accompanied by an intention that the applicant take part in the sexual act.
Charges 2 and 4 involved threats and did not involve the application of physical force. As we have observed (in relation to charge 4), the act to be punished was the making of the threat. That it also informed the intention aspect of charge 1 is not to the point.
Charge 3 involved a separate sexual assault, discrete in substance and time from charge 1. The thrusting motion that characterised charge 3 was not part of charge 1 which had concluded by that stage.[64]
[64]See paragraph [9] of the Amended Summary of Prosecution Opening which were agreed facts and are reproduced in paragraph [4] of these reasons.
It follows that whilst the offending was close in time and location, it still involved distinctive acts that called for a measure of cumulation of sentence, so as to reflect the gravity of what was — in our view — grave criminal offending.
Further we consider that although the judge did not advert to the phrase ‘double punishment’ in his reasons for sentence, it is apparent from both from the language he employed within those reasons, and the sentences and orders for cumulation imposed, that this very experienced criminal law judge bore the need to avoid double punishment steadily in mind. While his Honour remarked that there was a ‘bit of an artificiality’ in the indictment charging separate offences and there was some overlap between offences, the fact that his Honour did not impose total concurrency but allowed for some modest cumulation indicates that his Honour was concerned to avoid double punishment whilst imposing punishment for non-common elements — that is for separate, distinct criminality.
The applicant has failed to establish that the judge failed to avoid double punishment for single acts.
Totality principle
The totality principle is the subject of a separate sub ground of ground 1. In his written case, the applicant contended that the judge failed to apply properly the principle of totality. This submission was not advanced (beyond the related rule against double punishment) at the oral hearing. It is sufficient to state that we are unable to discern, either from the judge’s reasons, or the sentences and orders for cumulation that there has been any failure to apply properly the principle of totality. At paragraph [86] of the sentencing reasons, the judge said that he had taken a ‘last look at the orders … to guard against a crushing outcome and to ensure that the total effect of [the] sentences is commensurate with [the] overall criminality’.[65]
[65]Reasons, [86].
It will be recalled that later in paragraph [87] of the sentencing reasons, the judge referred to the serious sexual offender legislation[66] (relevant to charge 4) and observed that whilst those provisions remove the presumption of concurrency and modify the principle of totality, totality of sentence is still an important consideration here.[67] The judge was alive to the issue of totality in view of the ‘tight episodic nature of the offending and the extent of overlap’.[68] He accordingly made carefully considered orders for concurrency.
[66]Serious Offenders Act 2018.
[67]Reasons, [87].
[68]Reasons, [86].
The applicant has not established any error concerning the judge’s treatment of totality. We shall not grant leave to appeal under ground 1.
Applicant’s submission on ground 2
Ground 2 contends that every aspect of the sentences was manifestly excessive; the individual sentences, orders for cumulation and non-parole period are all said to suffer from this vice.
Whilst the applicant accepts it is a ‘serious thing’ to attack a lone female stranger for sexual purposes in the early hours of the morning and in an isolated place, there were matters that ‘weighed in favour of the applicant’. These were:
(a)the offending involved ‘no great planning’ and it was opportunistic;[69]
(b)there was a plea of guilty at the earliest stage, enhanced by its pandemic-related timing;[70]
(c)the sentence on charge 1 is an outlier when compared to other sentences imposed for the same crime;
(d)no component of the sentence on charge 1 could ‘consistently with the prohibition on double punishment’ be aggravated by separately charged threats or subsequent sexual assault;[71]
(e)the sentence on charge 3 may not be manifestly excessive, but when combined with separate sentences for other offences, it becomes so;
(f)the sentences for the threats are manifestly excessive; and
(g)the orders for cumulation are manifestly excessive considering the offending occurred as a single incident of brief duration against a single victim and the need to avoid double punishment. They produce a total effective sentence and non-parole period that is manifestly excessive.
[69]Reasons, [67].
[70]See Worboyes (2021) 96 MVR 344.
[71]Applicant’s written submissions, [25].
Consideration — ground 2
It is unnecessary to rehearse again the factual basis for each charge. This was dreadful offending that demanded condign punishment. There was a level of premeditation by the applicant; his offending was not spontaneous. It involved an outrageous and vicious attack upon a vulnerable, isolated young woman. True it is that there were some mitigating factors, all ably recognised by counsel and all considered by the sentencing judge. That said, the applicant had no remorse, nor any relevant psychiatric or psychological impairment that might mitigate his subjective culpability for the offending.
The applicant directed the judge, and this court, to various sentencing cases (including a pointed summary of each) involving sentences imposed for the principal offence of assault with intent to commit a sexual offence. We agree with the sentencing judge that there was limited utility in an examination of the purportedly comparable cases. None were ‘on all fours’ with the facts of this case (as conceded by defence on the plea).[72] Further cases were provided to this court in an endeavour to show that the 5 year and 8 months’ sentence imposed on charge 1 was an outlier and therefore beyond range.
[72]Reasons, [30].
We do not propose to review these cases. We agree with the respondent that they fall into three categories:[73]
(a)in some cases which attracted lower penalties, the assault with intent charge was confined to discrete aspects of otherwise more serious conduct;[74]
(b)the assaults were fleeting;[75] or
(c)substantial penalties were imposed for assault with intent, but there were considerable factors in mitigation beyond those available to the sentencing judge in this case.[76]
[73]We have reproduced footnotes [74]–[Error! Bookmark not defined.] from the respondent’s written submissions, after checking them for accuracy.
[74]Allen v The Queen [2021] VSCA 249 (rubbing victim’s leg near genital area) (‘Allen’); DPP v Douglass(a pseudonym) [2018] VCC 242 (opening pants zipper while touching victim’s head); DPP v Drake [2019] VSCA 293 (attempted penetration by pushing victim’s legs apart and turning victim over) (‘Drake’); Patil (a pseudonym) v The Queen [2020] VSCA 337 (pushing victim onto bed and removing leggings).
[75]See Murphy v The Queen [2019] VSCA 189; DPP v Duale [2021] VCC 1746 (‘Duale’).
[76]Allen [2021] VSCA 249 (mental health problems, childhood disadvantage, difficulties in custody); Duale [2021] VCC 1746 (fair rehabilitative prospects, incorrect maximum penalty applied); DPP v Hurren [2021] VCC 1183 (youth, Verdins limb 3, 4 and 5, cognitive difficulties, disadvantaged childhood); DPP v Jelonek [2021] VCC 324 (mitigating effects of intoxication, remorse, delay); DPP v Mitchell (a pseudonym) [2018] VCC 912 (youth, mental health problems, Verdins limbs 5 and 6, childhood disadvantage, difficulties in custody due to gender dysphoria); DPP v Nelluri [2017] VCC 1087 (no priors, delay, deportation, difficulties in custody, fair rehabilitative prospects); DPP v Richmond (a pseudonym) [2017] VCC 57 (remorse, mental health problems, difficult childhood as state ward); DPP v Wai [2019] VCC 513 (mental health problems, Verdins limbs 5 and 6, childhood disadvantage, deportation, difficulties in custody); DPP v Willis (a pseudonym) [2021] VCC 2051 (Verdins limbs 2, 3, 5 and 6, difficulties in custody as transgender person); Murphy v The Queen [2019] VSCA 189 (mental health was causally linked to offending).
Judges are statutorily required to consider current sentencing practices,[77] along with many other factors including the nature and gravity of the offence, the offender’s culpability and degree of responsibility for the offence. Courts should exercise caution when considering case comparisons. Rarely, if ever, are cases ‘on all fours’ with each other, and the exposed range of cases presented before a court does not set outer limits for exercising the sentencing discretion.[78] Case comparisons are of particularly limited utility when the offence under consideration spans a very wide range of criminal misconduct, for example cases of manslaughter[79] and intentionally causing serious injury.[80] Assault with intent to commit a sexual offence is another example. The circumstances of both the assault and the accompanying intention can vary so widely as to render many comparisons meaningless. As we have said, we agree with the judge that there was limited utility in an examination of purportedly comparable cases and they are certainly not a single controlling factor.
[77]Sentencing Act 1991, s 5(2)(b).
[78]R v Kilick (2016) 259 CLR 256, 269 [26]–[31]; [2016] HCA 48 (‘Kilick’); DPP v Dalgliesh (Pseudonym) (2017) 262 CLR 428, 454 [83]; [2017] HCA 41.
[79]DPP v Arney [2007] VSCA 126, [14] (Vincent, Nettle and Neave JJA).
[80]Kilick (2016) 259 CLR 256; [2016] HCA 48.
The judge was required to punish the applicant justly and proportionally. This, in our view was achieved by weighing carefully the competing sentencing considerations which included denunciation, specific deterrence, general deterrence, protection of the community and the maximum penalty on the one hand, and the applicant’s relatively limited mitigating factors[81] on the other.
[81]Set out in paragraph [6] of these reasons.
In this case, the sentence on charge 1 was 37.7% of the maximum penalty, on charge 2, 35%, on charge 3, 22.5% and on charge 4, 26.7%. None of these sentences bespeak underlying error when considered alone, and the orders for cumulation are, in our view, modest and in no way indicate some underlying error.
Every member of our community has an unconditional right to free and safe passage in public spaces. They are entitled to travel confidently and fearlessly in any circumstance at any time. It is a matter of singular regret that this right has become no more than an aspiration. It is the court’s duty to punish severely those who encroach upon that unconditional right. We have a duty to protect insofar as we can, the members of our community (principally female) from predatory sexual attacks of the kind that was perpetrated in this case.
Conclusion
The application for leave to appeal against sentence is refused.
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