Arnold (a pseudonym) v The Queen

[2013] VSCA 298

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0139

MARTIN ARNOLD (A PSEUDONYM)

Applicant

v

THE QUEEN

Respondent

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JUDGES	WARREN CJ, PRIEST and COGHLAN JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	10 October 2013
DATE OF JUDGMENT	10 October 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 298
JUDGMENT APPEALED FROM	DPP v [Arnold] (Unreported, County Court of Victoria, Judge Pullen, 1 May 2012)

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CRIMINAL LAW – Leave to appeal against sentence – Indecent act with a child under 16 and sexual penetration of a child under 16 – Total effective sentence of 7 years imprisonment – 5 years non-parole period fixed – Fresh evidence – Diagnosed with life-threatening condition after sentence – R v Nguyen [2006] VSCA 184 applied – Leave to appeal granted – Appeal allowed – Re-sentenced to 5 years 6 months imprisonment with a non-parole period of 3 years 6 months.

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APPEARANCES:	Counsel	Solicitors
For the Applicant:	Mr D Dann	Ann Valos Criminal Law
For the Crown:	Mr T Gyorffy SC	Mr C Hyland, Solicitor for Public Prosecutions

WARREN CJ: 

1. I agree with the reasons articulated by Coghlan JA and the disposition he proposes. 

PRIEST JA: 

1. I also agree. 

COGHLAN JA:

1. The applicant pleaded guilty to the charges set out below and was sentenced accordingly on 1 June 2012.

Charge on Indictment	Offence	Maximum	Sentence	Cumulation
1	Indecent act with a child under 16 [Crimes Act 1958 (Vic) s 47(1)]	10 years [Crimes Act 1958 (Vic) s 47(1)]	18 months	6 months
2	Sexual penetration of a child under 16 under care, supervision or authority [Crimes Act 1958 (Vic) s 45(1)]	15 years [Crimes Act 1958 (Vic) s 45(2)(b)]	4 years	12 months
3	Sexual penetration of a child under 16 [Crimes Act 1958 (Vic) s 45(1)]	10 years [Crimes Act 1958 (Vic) s 45(2)(c)]	5 years 6 months	Base
Total Effective Sentence:		7 years’ imprisonment
Non-Parole Period:		5 years
Pre-sentence Detention Declared:		282 days
6AAA Statement:		10 years imprisonment with a non-parole period of 7 years
Other orders: Forensic sample order.

1. The applicant seeks leave to appeal against those sentences, having been granted leave by the Registrar to bring the application out of time on the following grounds:

Ground 1 - There has been a substantial miscarriage of justice (such that a different and lesser sentence should now be imposed upon the applicant) by reason of fresh evidence demonstrating that:

(a) The applicant now suffers a serious illness, rendering incarceration more onerous; and

(b) The applicant now faces a significant probability of death in custody under the current sentence.

Ground 2 – The sentence was manifestly excessive, given the unusual mitigating features:

(a) in totality; and

(b) as to Count 3.

1. The applicant’s offending related to a long term sexual relationship which he had conducted with the victim KM (born 12 July 1979) whom he subsequently married.  The illicit relationship took place between December 1992 and July 1995 when the complainant was between 13 and 15 years old.  The applicant was aged between 34 and 36 at the time of the offending and was 53 at the time of sentence.

1. The circumstances of the offending has been set out in the Registrars Neutral Summary which I adopt.

In 1992, the complainant started Secondary School. The applicant was the complainant’s English teacher.  He became aware of the complainant’s problems at home and the complainant would often stay after school and talk to the applicant.  The year level co-ordinator noticed this behaviour and spoke to both the applicant and the complainant, saying the behaviour was inappropriate.  The complainant was removed from the applicant’s class.  The applicant and the complainant continued to communicate by letters.  At the end of the year, the applicant gave the complainant a bottle of perfume and told her it was an “I love you” gift.

On a school day in December 1992, when the complainant was 13 years old, the applicant picked the complainant up from her house.  They went for a bush walk in Studley Park.  The applicant kissed the complainant and told her he loved her.  The applicant then took the complainant to Monash University where they went into an empty room in the campus dormitory building.  The applicant kissed the complainant and touched her breasts.  The applicant told the complainant they needed to celebrate their coming together.  They went to a field and kissed again (Charge 1 – Indecent act with child under 16 – Representative charge).  The applicant told the complainant that if she told anyone she would end up in a boarding house and he would go to gaol.  He dropped the complainant near her home.

The complainant’s step-father and the school principal became aware the applicant and complainant had spent the day together.  The applicant’s step-father contacted the police.  The complainant spoke to police but did not make a statement.  The complainant’s step-father also called the applicant and told him not to have any contact with the complainant.  The complainant’s mother also spoke to the applicant, who told her he was just spending time with the complainant to get to know her.

The complainant’s step-father and mother separated around the end of 1992 and the applicant commenced a relationship with the complainant’s mother. During this time he would regularly visit the complainant’s house and seek the complainant out for secret kisses and hugs.

One night in January 1993, the applicant woke the complainant and told her that he wanted to spend some time with her.  He took her to an upstairs bedroom and lay her on the bed.  They kissed.  The applicant then removed their clothes, put a condom on his penis and they had penile vaginal intercourse.  The complainant was a virgin until this incident.  The applicant asked her if she was bleeding as he believed virgins should bleed during their first sexual encounter and he was disappointed that she did not (Charge 2 – Sexual penetration of a child under 16 under care, supervision and authority).

Just prior to the start of the 1993 school year, the applicant ceased his relationship with the complainant’s mother.  In March 1993 he was transferred to another school.  The applicant re-commenced his relationship with the complainant’s mother, telling the complainant it was the only way he could get to spend time with her.  During this time, the complainant and the applicant would have sexual intercourse[1] when they were alone in the house.  They also had sex in the car and in the Monash University dormitory rooms.  The applicant moved to a share house in Chadstone around Easter 1993 and the complainant would visit him there and they would have sexual intercourse.  On one occasion the applicant told her that speed (amphetamine) would give her a nice buzz and it would be great to have sex whilst high on the drug.[2] They then had sexual intercourse.

The complainant’s mother suffered a mental breakdown in April 1993.  The complainant and some of her siblings were placed in foster care for about six weeks.  During this time the applicant would see the complainant every other day.  He would pick her up from school or her foster home and take her back to his house where they would have sexual intercourse.

When the complainant returned to live with her mother, she became the primary carer for her siblings.  The applicant encouraged her to move out of home and told her it was unfair she had to look after her siblings and that he would take care of her.  The complainant moved out of home and lived in various share accommodation.  The sexual relationship between the applicant and the complainant continued.  He initially encouraged her to take the contraceptive pill however he was concerned their relationship would be revealed by her having to obtain a continuing prescription.  The complainant became pregnant to the applicant when she was aged 14 and 15, in early 1994 and January 1995.  The applicant arranged for the complainant to have terminations of those pregnancies (Charge 3 – Sexual penetration of child under 16 – Representative charge).

The applicant and the complainant moved to Western Australia after the complainant turned 16.  The applicant told the complainant they could legally live together in Western Australia.

The applicant and complainant lived in a number of places in Victoria and interstate.  They married in 1998 and had two children. They separated in 2008.

[1]References to sexual intercourse throughout Charge 3 are references to penile-vaginal sexual penetration.

[2]The Crown relied upon this as a particularisation of the offending, not for any circumstance of aggravation.

1. This is another case in a series of cases where prisoners have been diagnosed with life-threatening conditions after sentence.  It is accepted that events which occur after sentence will only constitute fresh evidence if they throw light on matters which existed at the time of sentence.[3]

   [3]R v Nguyen [2006] VSCA 184; Eliasen v R (1991) 53 A Crim R 391.

1. The medical evidence provided in this case reveals that prior to sentence, the applicant was found to have chronically swollen lymph nodes (lymphadenopathy) in 2011.  It was not, however, until February 2013 that he was diagnosed as suffering from non-Hodgkin lymphoma.

1. On the application a letter from Dr Chan Cheah, Haematology Fellow at the Peter MacCallum Cancer Centre, was exhibited to the affidavit sworn by the applicant’s solicitor, Linh Cao.

1. In his letter, Dr Cheah said,

[Martin Arnold] has been a patient at Peter MacCallum Cancer Centre since 20 June 2013.  His diagnosis is follicular non-Hodgkin lymphoma.  His symptoms at presentation were of slowly progressive lymphaedenopathy first noticed in 2011.  He did not have left inguinal node excisional biopsy after progressive lymph node enlargement.  He had bone marrow involvement indicating stage IV disease at diagnosis, with a prognostic score (FLIPI score) of 2 indicating intermediate risk.

He received treatment with R-CHOP chemotherapy commencing 26 February 2013, and has now completed all 6 cycles intended.  He tolerated chemoimmunotherapy well.  He has no residual lymphoma on his most recent PET-CT scan performed on 7 August 2013.  Bone marrow biopsy confirms complete remission and he is about to commence 2 years of maintenance therapy with the monoclonal antibody rituximab (to be administered once every 3 months).

1. Later in his letter he said,

For patients such as [Martin], with a FLIPI score of 2 he would be expected to have a median overall survival of approximately 10 years.  A recognised risk of histologic transformation to high grade lymphoma, with an actuarial risk approximating 25% over 10 years.

1. The principles governing fresh evidence on sentence appeals were usefully summarised by Redlich JA (with whom Maxwell P and Neave JA agreed) in R v Nguyen.  His Honour said,

It is common ground that this Court may, in limited circumstances - sometimes described as “rare and exceptional” - permit evidence to be led of matters or events that have occurred since the sentence was imposed to enable this Court to reconsider the sentence in the light of that additional evidence.  The following principles apply to the admission of such evidence:

(i) the new evidence must relate to events which have occurred since the sentence was imposed; 

(ii) the evidence must demonstrate the true significance of facts in existence at the time of the sentence; 

(iii)the evidence will not be admitted if it relates only to events which have occurred after sentence and which show that the sentence has turned out to be excessive; 

(iv)the new evidence may be admissible even though the applicant did not refer to the pre-existing state of affairs in the course of the plea;

(v)upon the admission of the new evidence, it is unnecessary to determine whether the original sentence was vitiated by error, or whether it was manifestly excessive;  and 

(vi)the question is whether, on all of the material now before the Court, any different sentence should be substituted to avoid a miscarriage of justice. [4]

[4]Supra [36] (citations omitted).

1. It is conceded by the respondent that the matters set out in sub-paragraphs (i) to (v) have been made out, that is the material is fresh evidence.  It is contended on behalf of the respondent that no different sentence should be imposed.

1. It is submitted on behalf of the applicant that the new circumstances are sufficient to warrant the reopening of the sentencing discretion and if the sentence was not reduced it might be regarded as ‘crushing’.[5]

   [5]R v Babic [1998] 2 VR 79.

1. I am satisfied that it is reasonable to assume that following the diagnosis, prison is more onerous for the applicant than it might otherwise have been and must be coupled with his reduced life expectancy.

1. Although it is not the test which is determinative of the matter I do not doubt that had these matters been before the learned sentencing judge then a lower sentence would have been imposed.

1. It is submitted by the respondent that in cases such as Ridge v The Queen[6] and Do v The Queen[7] the reduction in life expectancy was much greater than the present case.  It follows, or so the argument goes, that the sentence was not such that there was a “destruction of any reasonable expectation of useful life after release.”[8]  That consideration taken together with the seriousness of the offending meant that there has been no miscarriage.

   [6][2013] VSCA 203.

   [7][2013] VSCA 189.

   [8]R v Yates [1985] VR 41, 48.

1. I am not satisfied the meaning of the test posited in R v Nguyen that on all the material a different sentence should be imposed to avoid a miscarriage of justice should be interpreted as meaning that a new sentence should only be imposed if it can be shown that the present sentence would be ‘crushing’.  There are many cases where the Court of Appeal has resentenced on the basis of fresh evidence based on material about ill heath without going so far as that.[9]

   [9]See R v Pilarinos [2001] VSCA 9 and the cases referred to therein.

1. In resentencing the applicant it was submitted on behalf of the applicant that the following matters were significant:

·The matters in mitigation advanced at the plea;

·The time the Applicant has served in custody to date;

·The Applicant’s current diagnosis, deterioration in health and the available facilities in custody to aid his condition/s rendering incarceration more onerous;

·The probability that the Applicant faces death in custody under the current sentence and the onerous effect that the potential of an early death must have upon the time he must spend in custody; and

·The impact of his condition on the application of sentencing principles including general and specific deterrence, community protection, rehabilitation and (more diffusely) mercy.

1. All those matters appear to be relevant but I would not go so far as to say there is a probability of the applicant facing death in custody under the current sentence.  The possibility of that occurring is nonetheless relevant.

1. No separate argument was advanced in support of proposed ground 2 but in view of the attitude I have taken as to proposed ground 1, it is unnecessary to consider that ground as has been pointed out in the decided cases.[10]

   [10]See Eliasen and Nguyen supra.

1. On the other hand this offending was serious particularly having regard to the fact of the pupil/teacher relationship and the difference in age between the applicant and the complainant.

1. Had it not been for the fresh evidence I would have regarded the present sentences as being within the available range.  It should be noted that her Honour had sentenced the applicant to a total effective sentence below the range submitted on behalf of the respondent.

1. I would grant leave to appeal out of time and allow the appeal and resentence the applicant as follows.

Charge on Indictment	Offence	Maximum	Sentence	Cumulation
1	Indecent act with a child under 16 [Crimes Act 1958 (Vic) s 47(1)]	10 years [Crimes Act 1958 (Vic) s 47(1)]	15 months	6 months
2	Sexual penetration of a child under 16 under care, supervision or authority  [Crimes Act 1958 (Vic) s 45(1)]	15 years [Crimes Act 1958 (Vic) s 45(2)(b)]	3 years	12 months
3	Sexual penetration of a child under 16 [Crimes Act 1958 (Vic) s 45(1)]	10 years [Crimes Act 1958 (Vic) s 45(2)(c)]	4 years	Base
Total Effective Sentence:		5 years 6 months’ imprisonment
Non-Parole Period:		3 years 6 months

1. I would declare that you have already served 778 days of imprisonment pursuant to this sentence.

1. Although it is rather artificial to do so, I state pursuant to s 6AAA of the Sentencing Act 1991 that had it not been for your pleas of guilty I would have sentenced you to 7 years 6 months imprisonment with a non-parole period of 5 years.

1. I would direct that the declaration as to presentence detention and the statement pursuant to s 6AAA be entered in the records of the court.

1. I would otherwise confirm the orders made in the court below.

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