Basile v The King
[2023] VSCA 308
•8 December 2023
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2023 0105 |
| LAWRENCE BASILE | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGES: | TAYLOR JA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | Determined on the papers |
| DATE OF JUDGMENT: | 8 December 2023 |
| MEDIUM NEUTRAL CITATION: | [2023] VSCA 308 |
| JUDGMENT APPEALED FROM: | DPP v Basile [2023] VCC 822 (Judge Mullaly) |
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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009
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CRIMINAL LAW – Leave to appeal – Sentence – Rape – Applicant a massage therapist – Digital rape of client during therapeutic session – Penetration endured for 30 minutes – Sentenced to 7 years’ imprisonment with non-parole period of 4 years and 6 months – Whether objective gravity of offending ‘serious’ – Whether sentence manifestly excessive – Whether judge engaged in two-stage sentencing in assessing objective gravity in relation to hypothesised middle range of seriousness of offence of rape – Leave to appeal refused.
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| Counsel for written submissions | |||
| Applicant: | Mr C Pearson | ||
| Respondent: | Mr J Dickie | ||
Solicitors | |||
| Applicant: | Adrian Paull Criminal Lawyers | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
TAYLOR JA:
On 17 April 2023 the applicant pleaded guilty to a single charge of rape. A plea hearing on that date and on 8 May 2023 followed.
On 22 May 2023 he was sentenced to 7 years’ imprisonment with a non‑parole period of 4 years and 6 months.
The applicant seeks leave to appeal against sentence on the following grounds:
1. The sentence imposed is manifestly excessive.
Particulars:
1.1Sentences imposed for the offence of Rape have increased since the introduction of the standard sentencing regime.
1.2A sentence of 7 years imprisonment on a single charge of Rape lies wholly outside the range of sentences available for this offence.
1.3The sentence imposed is manifestly excessive having regard to:
1.3.1The guilty plea that had been entered by the Applicant.
1.3.2The fact that the Applicant had a minor and dated prior criminal record.
1.3.3The age and relative ill health of the Applicant.
1.3.4The objective gravity of the offending.
2.The Learned Sentencing Judge erred in the way in which he applied the sentencing principle applicable by virtue of to (sic) the standard sentencing regime.
Particulars
2.1The Learned Sentencing Judge impermissibly engaged in a two stage reasoning process in making findings as to where the objective gravity of this offending stood in relation to an hypothesised middle range of seriousness (sic) offence of Rape.
2.2Even if the Learned Sentencing Judge was correct in the reasoning process that was adopted in relation to the standard sentencing regime, the finding here made as to the objective gravity of the offending was a finding that was not available on the facts.
For the reasons that follow, leave to appeal should be refused.
Summary of offending
On 8 February 2021 the applicant digitally penetrated the vagina of a 36 year old woman in the course of what was expected to be a therapeutic massage in her home. He had previously performed massages on the victim and her husband at their home on six occasions in January and February 2021. On the day of the offence, the applicant touched the victim’s vagina shortly after the massage commenced when she was lying face down. He then penetrated her vagina with his finger and then fingers. The victim was shocked and initially froze. She then turned over. The penetration continued when she was on her back. No words were spoken. After about 30 minutes the applicant ceased touching and digitally penetrating the victim’s vagina but then touched her breasts, including her nipples, for about five minutes.
The victim told her husband of the offending the following day. With his encouragement she contacted the police. In a recorded pretext call the victim confronted the applicant with the allegation that he had penetrated her vagina without her consent. He apologised and did not dispute doing so.
On 23 February 2023 the applicant was arrested and interviewed. He initially denied penetrating the victim’s vagina. After the police played to him the recording of the pretext call, the applicant claimed he had simply said what he had said to end the call.
Sentencing Reasons
The judge commenced his sentencing reasons0F[1] by summarising the offending1F[2] and noting that the applicant’s denials in the record of interview were ‘outright lies’ which impacted the credibility of his later instructions to his lawyer explaining his offending.2F[3] Next, the judge recorded the statutory and other indicia of the seriousness of the crime of rape3F[4] before noting the importance of considering the specific features of the offending.4F[5] Three matters were considered to be the most serious aspects of the offending: the applicant’s ‘comprehensive and brazen breach of trust’ of his position as a massage therapist; that he violated the victim in her own home; and the duration of the penetration being a protracted 30 minutes and not some ‘fleeting touch’.5F[6] While the judge accepted that the offending was spontaneous and not premeditated, he rejected the applicant’s submission that it was a ‘low level example of serious criminal offending’. Instead, the judge concluded that the offending was ‘a particularly serious example of the crime of rape.’6F[7] It followed that the judge found denunciation, punishment and general deterrence to be significant sentencing considerations.7F[8]
[1]DPP v Basile [2023] VCC 822 (‘Reasons’).
[2]Reasons, [1]–[8].
[3]Reasons, [9].
[4]Reasons, [11]–[13].
[5]Reasons, [14]–[15].
[6]Reasons, [16]–[19].
[7]Reasons, [20]–[22].
[8]Reasons, [24], [52].
The judge rejected the applicant’s submission that his moral culpability was low because of his genuine but unreasonable belief that the victim was consenting, instead finding, beyond reasonable doubt, that he did not hold any such belief.8F[9] Reference was made to the unregulated nature of the massage industry and the absence of a registration requirement to practise but the judge accepted that the applicant was qualified and had, between 2015 and 2018, been registered with the Association of Massage Therapists. The judge accepted that the offending conduct was a one-off ‘serious falling short’ of what was expected of a massage therapist.9F[10] Slight weight was accorded by the judge to a 1993 finding of guilt for committing an indecent act with a child under 16.10F[11]
[9]Reasons, [25]–[34].
[10]Reasons, [35]–[36].
[11]Reasons, [37]–[38], [41]. The applicant received a fine without conviction in the Magistrates’ Court.
The victim requested that her victim impact statement play no role in the sentencing process. The judge did not have regard to it, but found nonetheless that there was an obvious inference to be made, from the pretext call and her statement, of the harm caused to her.11F[12]
[12]Reasons, [39].
Next the judge summarised the applicant’s personal circumstances. He was in his late 60s and, the 1993 finding aside, had led a law-abiding and hard-working life.12F[13] The applicant was close with his siblings and two adult children. He had three significant intimate relationships, the last of which continued as a friendship.13F[14] The applicant completed schooling to year 10 before becoming a cabinet maker and later operating his own retail business. He retired in 2009 following a diagnosis of prostate cancer, now in remission. Later he undertook training as a massage therapist. The applicant had no substance-use issues and stable mental health. His physical health concerns included diabetes, high blood pressure, high cholesterol and sleep apnoea treated by a machine.14F[15]
[13]Reasons, [40]–[42].
[14]Reasons, [43]–[44].
[15]Reasons, [45]–[46].
The judge accepted that at the applicant’s age imprisonment would pose difficulties and take some of the years that remained to him but noted the absence of a submission that he was so elderly as to be unlikely to live beyond sentence.15F[16] Based on the psychological assessment of Warren Simmons, the judge accepted that the applicant’s risk of sexual re‑offending would be low if he did not resume work as a massage therapist.16F[17] The applicant’s overall prospects of rehabilitation were good.17F[18]
[16]Reasons, [47].
[17]Reasons, [48].
[18]Reasons, [49].
The judge acknowledged the applicant’s plea of guilty as important, its utilitarian value augmented by being made when the courts were suffering consequences of the COVID‑19 pandemic and it also being a genuine expression of remorse.18F[19]
[19]Reasons, [50]–[51].
The judge stated that both the standard sentence and maximum penalty for rape were legislative guideposts and that the standard sentencing regime did not displace ‘the well understood sentencing methodology of an instinctive synthesis of all matters relevant to the offending and the offender’19F[20]. Having undertaken that instinctive synthesis, the judge concluded that the sentence imposed must be lower than the standard sentence. Whilst the applicant committed a serious crime with ‘a dreadful breach of trust and with high moral culpability’, that crime involved no additional violence.20F[21] The judge found that the interests of justice did not require the imposition of a non-parole period less than 60% of the head sentence.21F[22] Noting that the offence of rape can be committed in a wide variety of circumstances the judge had regard to other standard sentence cases but found that individualised justice was ‘very much to the fore’.22F[23]
[20]Reasons, [53].
[21]Reasons, [54].
[22]Reasons, [56].
[23]Reasons, [56].
Ground 1 — manifest excess
Contentions of the parties
The applicant contended that the sentencing judge was ‘fixated’ by the characterisation of the objective gravity of the offending and his moral culpability. It was not, as the judge found, a ‘particularly serious’ example of rape. Rather, despite the breach of trust involved, it was no more than a ‘low to middle level’ example of the offence of rape.
The applicant emphasised the significant matters in mitigation of penalty, namely the fact and timing of his plea of guilty, his minor and dated prior criminal record, his good work history as well as his age and health. He also referred to the lack of evidence of any ongoing impact upon the victim.
With reference to Flynn v The Queen23F[24] the applicant submitted that the sentence imposed was wholly outside the range of sentences open.
[24][2020] VSCA 173 (‘Flynn’). The applicant relied on paragraphs 108 and 109.
On the other hand, with reference to Babar v The Queen24F[25] the respondent submitted that the sentence imposed on the applicant was within the range of sentencing options available to the judge.
[25][2022] VSCA 122 (‘Babar’).
The respondent argued that the judge’s reference to the offending being a ‘particularly serious’ example of the crime must be considered in context of the sentencing remarks as a whole and the sentence actually imposed, being three years less than the standard sentence and 28 percent of the maximum penalty. It was correct to term the offending serious and the applicant’s moral culpability high given the breach of trust, the vulnerability of the victim, that the offending took place in her home, the protracted period over which the offending occurred and the applicant’s awareness from the outset that she was not consenting.
The judge had proper regard to the matters pleaded in mitigation, the objective seriousness of the offending and the applicant’s moral culpability as well as the maximum penalty, prescribed standard sentence and the need for denunciation, just punishment and general deterrence.
Analysis
A ground of manifest excess will succeed only if an applicant can demonstrate that something must have gone obviously, plainly or badly wrong in the exercise of the sentencing discretion.25F[26] The question is not whether the judge imposed the correct sentence, there being no single correct sentence. Nor is the issue whether this Court would have imposed the same sentence as the judge. The question is whether the sentence imposed was wholly outside the range of sentencing options available to the judge.26F[27]
[26]Ayol v The Queen [2014] VSCA 151, [30] (Maxwell P), citing Clarkson v The Queen (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA).
[27]R v Abbott (2007) 170 A Crim R 306, 309–10 [13]–[15] (Maxwell P, Eames JA agreeing at 312 [22], Habersberger AJA agreeing at 312 [23]); [2007] VSCA 32.
The crime of rape encompasses a spectrum of different acts which can occur in varying circumstances. It follows that the particular circumstances of any individual example of the crime must be understood so as to arrive at an assessment of its objective gravity. In this case, the applicant entered the victim’s home in a professional capacity and took advantage of the trust involved. The victim was in a state of undress and the rape endured for a considerable period. The judge was correct to describe the offending conduct as serious.
In any event, the judge’s use of descriptors as to the gravity of the offending must be understood in light of the submissions made by the applicant on his plea. In particular, it was argued that the applicant believed that the victim was consenting but that belief was not reasonable. This, together with the fact that the digital penetration meant that the victim was not exposed to the risk of pregnancy or sexually transmitted disease, the spontaneous nature of the offending, the absence of threats, violence and weapons and that the offending was in a single transaction was argued to render the offending ‘at the lowest possible end of the spectrum’ or ‘a low level example of serious offending’.
As the judge correctly noted, the absence of certain aggravating features does not impact the import of the aggravating features actually present. And, as is clear from the reasons, in arriving at the sentence imposed the judge balanced the objective features of the offending with the applicant’s guilty plea, his limited and dated criminal history and his age and associated health issues. As was proper, the judge also considered the applicant’s moral culpability, the maximum penalty, the prescribed standard sentence, the need for denunciation and punishment and the importance of general deterrence. Further, the judge did have regard to current sentencing practices. And, as argued by the respondent, the sentence actually imposed was three years less than the standard sentence.
To the extent that the applicant relies upon Flynn, the Court in that case held that sentences of imprisonment of 6 years on each of two charges of rape were within range. The cumulation of a full two years of the sentence on one charge upon the sentence of the other was found to be ‘out of kilter with the way in which principles of cumulation ought ordinarily apply’27F[28] in cases where the offending was a single transaction in which the two acts of rape took place within moments — a matter of seconds — of each other. Those were acts of digital-vaginal penetration and digital-anal penetration of limited duration. The circumstances of the instant offending are obviously materially different.
[28]Flynn [2020] VSCA 173, [110] (Niall, T Forrest and Weinberg JJA).
It follows that ground 1 is not made out. The sentence imposed by the judge was within the range of available sentencing options.
Ground 2 — standard sentencing regime
Contentions of the parties
The applicant submitted that despite understanding the correct methodology with respect to the standard sentencing regime, the Reasons demonstrate that the judge engaged in a two-stage reasoning process by classifying the offending on a scale of seriousness referable to the hypothetical mid-range offence and then fixing upon a sentence by reference to the 10-year standard sentence.
Alternatively the applicant submitted that if the judge’s reasoning process was sound, the finding made as to the objective gravity was not available.
The respondent submitted that the judge well understood the need to avoid embarking on a two-stage sentencing process and expressly stated that he did not do so. There was no error in the judge’s finding that a just and appropriate sentence was one lower than the standard sentence. The legislative provisions do not affect a sentencing judge’s obligation to assess the seriousness of the offending.
Analysis
It is convenient to set out the judge’s reasoning with respect to the standard sentence regime in full.
As I have mentioned rape is a standard sentence offence with a standard sentence fixed of 10 years imprisonment. This operates as a legislative guidepost, as does the maximum term of 25 years imprisonment. The legislation states that the standard sentence is for the middle range of seriousness taking into account only the objective factors affecting the relative gravity of the offending. The well understood sentencing methodology of an instinctive synthesis of all matters relevant to the offending and the offender is not displaced by the standard sentencing regime. It is one factor and I have had regard to the fact this is a standard sentence offence. I have assessed carefully the seriousness of the offence according to the proscriptions of the Act and also considered the other factors as referred to in my reasons, such as the added weight to be given to your plea and all your personal circumstances.
Having undertaken the task required by the statue, including the task of instinctive synthesis of all matters, I have come to the conclusion that the sentence I will shortly announce must be lower than the standard sentence. It remains, as I have said, a serious crime with a dreadful breach of trust and with high moral culpability, however there was no additional violence to forcing your will over the victim. In my view the just and appropriate sentence is one lower than the standard sentence.28F[29]
[29]Reasons, [53]–[54].
These remarks demonstrate no error. The judge correctly identified that the standard sentence was a ‘legislative guidepost’. There is nothing to indicate that the judge engaged in two-stage reasoning to assess the objective gravity of the offending regarding a hypothetical mid-range of seriousness of the offence of rape taking into account only the objective circumstances. There was no error in finding that a just and appropriate sentence was one lower than the standard sentence after intuitively synthesising all relevant matters.
Further, as detailed in consideration with respect to ground 1, the judge’s characterisation of the objective gravity of the offending as serious was plainly correct.
It follows that ground 2 is not made out.
Conclusion
Leave to appeal must be refused.
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