Bergman (a pseudonym) v The Queen
[2021] VSCA 148
•3 June 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0203
| NOAH BERGMAN (a pseudonym)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]To ensure that there is no possibility of identification of the complainant, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.
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| JUDGES: | MAXWELL P, KAYE and McLEISH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 3 May 2021 |
| DATE OF JUDGMENT: | 3 June 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 148 |
| JUDGMENT APPEALED FROM: | [2019] VCC 268 (Judge Carmody) |
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CRIMINAL LAW – Appeal – Conviction – Rape – Reasonable belief in consent – Direction to consider ‘what the community would reasonably expect’ – Whether risk of diverting jury from deciding question – Jurors as members of community – No risk of being diverted – Directions complied with statutory requirements - Leave to appeal refused – Crimes Act 1958 ss 36A, 38, Jury Directions Act 2015 ss 12, 14, 47(3).
CRIMINAL LAW – Appeal – Sentence – Rape, threat to kill, using carriage service to menace or harass – Applicant sentenced to 6 years’ imprisonment with 4 years non-parole – Applicant 18 years old at time of offending – Aboriginal heritage – Disadvantaged background – Mild intellectual disability - Whether judge failed to apply principle of totality – Whether judge failed to take into account applicant’s Aboriginality and disadvantaged background – Whether sentence manifestly excessive – Appeal allowed – Resentenced to 4 years and 4 months’ imprisonment with non-parole period of 2 years and 4 months – R v Bugmy (2013) 249 CLR 571, R v Mills [1998] 4 VR 235, Azzopardi v The Queen (2011) 35 VR 43 considered.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr S Gillespie-Jones | Ferraro Pruscino & Co |
| For the Respondent | Mr J C J McWilliams | Ms A Hogan, Solicitor for Public Prosecutions |
MAXWELL P
KAYE JA:
On 6 December 2018, the applicant was convicted, by the jury empanelled on his trial, of one charge of rape. Before the commencement of the trial, the applicant had pleaded guilty to two other charges, contained in a separate indictment, of making a threat to kill (contrary to s 20 of the Crimes Act 1958) and of using a carriage service to menace, harass or cause offence (contrary to s 474.17(1) of the Criminal Code Act 1995 (Cth)). After a plea on his behalf, the applicant was sentenced, on 7 March 2019, to a total effective sentence of 6 years’ imprisonment with a non-parole period of 4 years.
The applicant seeks leave to appeal against his conviction and sentence. Those applications were not filed until 24 September 2020, a significant period of time after the period fixed by s 279 of the Criminal Procedure Act 2009. Accordingly, the applicant has also made an application for an extension of time under s 315 of the Criminal Procedure Act. It is convenient to deal with that application first.
Application for an extension of time
The application for an extension of time is supported by a brief affidavit deposed by the applicant’s present solicitor.
The applicant has had at least four different legal representatives to review the prospects of an appeal by him against conviction and sentence. The first firm of solicitors acted for the applicant in the trial. The member of that firm who acted on behalf of the applicant left Victoria at some time and moved interstate. It would appear that no-one else in the firm had a detailed knowledge of the case. That firm ceased to act for the applicant a few months after the period for appeal had expired. During that time, the applicant delayed in signing an authority for new solicitors to act for him, because he did not trust the prison staff and lawyers who were offering to assist him with the document. We interpolate that the applicant has a mild intellectual disability, has a history of substance abuse, and apparently also suffers from attention-deficit hyperactivity disorder (ADHD).
At some point, a second firm was consulted. After that firm subsequently ceased to act for the applicant, it evidently delayed in forwarding any documents to the third firm. The solicitor in that firm who had the carriage of the matter left its employment, and the principal of the firm had significant health issues. In the meantime, counsel was approached by the family of the applicant to assist, but she was engaged in other matters, and had medical issues requiring specialist treatment. The family of the applicant had also advised one of the sets of lawyers that there were potential witnesses who, conceivably, could provide fresh evidence relating to the credit of the complainant. Ultimately, those witnesses failed to cooperate.
In addition to those matters, as a consequence of the restrictions imposed in response to the COVID-19 pandemic, the applicant’s current legal practitioners have had difficulty obtaining sufficient information to prepare the applications.
The principles that apply to an application for an extension of time have been discussed in a number of authorities of this Court. For present purposes, they were conveniently summarised in Barber v The Queen[2] in the following terms:
The principles, that apply to an application for an extension of time, have been stated in a number of decisions of this Court. The applicant bears the burden of persuading the Court that an extension of time should be granted in his or her favour. The Court has a wide discretion in determining whether to grant an extension of time. However, the central consideration is whether it is in the interests of justice that the application for leave to appeal be heard, notwithstanding that it has been brought outside the prescribed time. In determining that question, a number of factors are ordinarily taken into account, including the length of the delay and the reasons for it. In addition, the prospects of success of the proposed application for leave to appeal against sentence, should the extension be granted, are material. Each of those factors, and any other relevant circumstances, are taken into account in a balanced exercise of the discretion. Ordinarily, where the delay is considerable, the Court will not grant the extension, unless it is satisfied the proposed grounds are sufficiently meritorious to justify the grant of the extension notwithstanding such delay.[3]
[2][2018] VSCA 232.
[3]Ibid [3] (Kyrou and Kaye JJA) (citations omitted). See also Jopar v The Queen (2013) 44 VR 695, 707 [59]; [2013] VSCA 83 (Priest JA); Madafferi v The Queen [2017] VSCA 302, [11] (Priest, Hansen and Coghlan JJA).
In the present case, the period of delay is most substantial. While the matters contained in the affidavit provide an explanation for some parts of that period, it does not sufficiently explain the very significant period of delay of some 17 months. As we will discuss, we do not consider that the two grounds proposed in the application for leave to appeal against conviction are reasonably arguable. In those circumstances, ordinarily, we would not grant an extension of time in respect of that application.
There was, however, one consideration which we consider justifies the grant of such an extension. The evidence in the trial was quite confined. The principal witness was the complainant. Her evidence-in-chief consisted of a VARE statement taken from her, and before the commencement of the trial she was cross-examined in a special hearing. After the empanelment of the jury, the presentation of the evidence, the final addresses of counsel and the judge’s charge were completed within four days.
The principal issue in the trial was whether the prosecution had proven, beyond reasonable doubt, that the complainant did not consent to the alleged act of sexual penetration. Having retired to consider its verdict, the jury then deliberated for a period in excess of two and a half days. During that time, the jury sought a redirection on the questions of consent and unreasonable belief of consent. After that further direction, the jury subsequently notified the judge that they were unable to reach a verdict. The judge then directed the jury that he would take a majority verdict, and in doing so, his Honour gave a perseverance direction to the jury. Some four hours later, the jury returned an unanimous verdict that the applicant was guilty of the offence charged.
The two proposed grounds of the application for leave to appeal against conviction are concerned with the direction, and redirection, given by the judge to the jury concerning the requirement that the prosecution prove that the applicant did not reasonably believe that the complainant consented to the penetration. Given the jury’s lengthy deliberation, and the request for a redirection concerning the question of consent, and reasonable belief of consent, we are persuaded that there should be an extension of time notwithstanding the very lengthy period of delay, and the insufficient reason proffered for that delay.
As we will discuss, the matters raised in the application for leave to appeal against sentence justify a grant of leave to appeal. In the circumstances, it is appropriate that we also extend time for that application.
APPLICATION FOR LEAVE TO APPEAL AGAINST CONVICTION
Proposed grounds of appeal
The application for leave to appeal against conviction is based on two grounds, namely:
1.The learned trial judge erred in failing to direct the jury with sufficient clarity that it was the reasonableness of the applicant’s personal belief that was a method of proving the mental element of the charge of rape, not the reasonable expectation of the community or the jury.
2.The learned trial judge erred in equating the reasonable expectation of the community with the reasonable expectation of the jury and the reasonable expectation of the accused.
Circumstances of offending
At the time of the offence, the applicant was aged 18 and the complainant was 17. They had been friends for approximately five years. In her VARE statement, the complainant stated that she had dated the applicant when she was in Year 7. On one occasion, on 20 January 2017, they had had consensual sexual intercourse. The complainant later regretted that occasion and she made clear to the applicant that she did not wish to do so again.
On 13 May 2017, the complainant attended a party at which she consumed some alcohol. At 1:19 am on 14 May 2017, she contacted the applicant via Facebook and asked him what he was up to. She said that she had been drinking alcohol and was feeling ‘emotional’. In response, the applicant suggested that the complainant should come to his mother’s house. The complainant agreed, and messaged the applicant stating, ‘I’m so sad, no sex or anything, I’m sad’.
The complainant then arranged for a friend to drive her to the applicant’s mother’s address. She was met there by the applicant. After they entered the house, they went to the applicant’s bedroom at the rear of the house, which had one single bed in it. They both got into the bed fully clothed. The applicant then commenced to get ‘touchy’ with her and he started to kiss her. The complainant told him not to do so, saying that she was not in the mood. Nevertheless, the applicant continued to try to kiss the complainant, who resisted by keeping her mouth closed.
At one point, the applicant was on top of the complainant, and she managed to push him off her. She then turned on her side to face the wall. The applicant continued to try to rub up against her and she said ‘No’. The applicant then pulled the complainant’s pants down. The complainant was crying saying ‘stop’ and ‘I don’t want to do this’. The applicant spent approximately ten seconds trying to put his penis into the complainant’s vagina. He then penetrated the complainant’s vagina and had sexual intercourse with her. After a short time, he removed his penis. The complainant pulled her pants up and cried.
The complainant remained in the bed with the applicant until about 7:00 am. During that time, the applicant fell asleep. The complainant then left the house and telephoned a friend. She told the friend that the applicant had raped her. While she was speaking to her friend, her telephone battery went flat. She then knocked on the door of a house which was nearby, where she was permitted to use a telephone to call her mother who managed to pick her up. The matter was reported to the police later that evening.
In the meantime, at 9:07 am on 14 May, after the complainant had left the applicant’s mother’s home, she sent the applicant a message which said ‘Why would you do that to me?’ In a series of messages that followed, the applicant denied having raped the complainant. He also made some threats to her should she report the matter.
In the days that followed, the complainant and the applicant continued to exchange messages on Facebook. The complainant told the applicant how she felt about being raped. In response, the applicant told her that he loved her and that things could be fixed. However, when it became clear that the complainant was refusing to see him again, the applicant replied ‘I am serious, shut the fuck up or I will put a bullet in ur head.’ That threat was the subject of the charge of making a threat to kill, to which the applicant pleaded guilty.
He also pleaded guilty to a charge of using a carriage service to menace, harass or cause offence. That charge was based on the Facebook messages he had sent to the complainant, and ten unanswered telephone calls that he made to the complainant, in circumstances in which she had made it clear that they were not welcome.
The issues at the trial
As mentioned, the complainant was cross-examined in the special hearing that preceded the trial, and the recording of that hearing was played to the jury. The principal focus of the cross-examination concerned the issue of consent. Defence counsel put to the complainant that she was a willing participant in the sexual intercourse; that she had willingly removed her clothes; that she did not give any indication to the applicant that she was unhappy with what was happening; that after having intercourse they had slept together in the same bed; and that it was only on the following morning, when the complainant awoke, that she regretted having participated in sexual intercourse with the applicant.
In his final address, counsel for the applicant focused almost entirely on matters which, he submitted to the jury, impugned the credibility of the complainant’s account that the applicant had had sexual intercourse with her without her consent.
The judge’s charge
In a well-structured and thorough charge, the judge directed the jury that in order to convict the applicant, they must be satisfied beyond reasonable doubt that:
(a) the applicant intentionally sexually penetrated the complainant;
(b) the complainant did not consent to the sexual penetration; and
(c) the applicant did not reasonably believe that the complainant consented to the sexual penetration.
The judge then proceeded to give thorough and comprehensive directions to the jury as to each of those three elements. The two proposed grounds of appeal are directed to the instructions which the judge gave concerning the third element, the absence of a reasonable belief that the complainant had consented. (For convenience, we will refer to this as the ‘no reasonable belief’ element.)
The judge correctly directed the jury that the ‘no reasonable belief’ element would be established in any one of the following three circumstances:
(d) the applicant believed that the complainant was not consenting;
(e) the applicant gave no thought as to whether or not she was consenting; and
(f) even if the applicant might have believed that she was consenting, that belief was not reasonable in the circumstances.
The judge then put to the jury the competing positions of the parties on the ‘no reasonable belief’ element. In the course of doing so, he gave the following instruction to the jury, which is the subject of the two proposed grounds of appeal:
A belief will be reasonable if there's reasonable grounds for a person in the position of the accused man, Mr [Bergman], to hold that belief. You must also consider all the circumstances when deciding whether the belief in consent was reasonable. In looking at the evidence you should consider whether the accused took any steps to find out whether the complainant was consenting or might not be consenting and, if so, what the nature of those steps was.
The law says that a belief in consent based only on stereotypes or preconceptions about the circumstances in which people consent to sexual acts is not a reasonable belief. It does not matter whether those stereotypes are based on any particular culture, religion, or other influences. If a belief in consent is based on a combination of matters, including such a general assumption, then to the extent it is based on those general assumptions it is not a reasonable belief. You must decide the case on the evidence, and not on assumptions or stereotypes about the circumstances in which people consented to a sexual act.
When you are considering whether a belief in consent is unreasonable, you must consider what the community would reasonably expect of the accused in circumstances in forming a reasonable belief in consent. In this regard, you are members of the community, and the jury. You have the best idea of what the community would reasonably expect of Mr [Bergman] in the circumstances of this case in forming a reasonable belief in consent.
After the judge had given that direction, counsel for the applicant did not take any exception to it, or seek any further direction concerning it.
Subsequently, after the jury had retired to consider its verdict, and in the course of its deliberations, the jury asked the judge to reiterate the principles concerning consent and ‘no reasonable belief’. Before he answered the question, the judge, in the absence of the jury, indicated to counsel that he intended to repeat to the jury the part of the charge that he had given about that topic.
Importantly, both the prosecutor and defence counsel agreed with what his Honour proposed. Accordingly, when the jury reconvened in court, the judge read to the jury the section of the charge that he had given concerning consent and ‘no reasonable belief’. Unsurprisingly, no exception was taken to that further direction.
Grounds 1 and 2 — submissions
The two proposed grounds of appeal are substantially interrelated, and counsel for the applicant addressed them together. His principal submission was that the effect of the direction was — or was likely to have been — to divert the jury from their task of deciding for themselves whether the ‘no reasonable belief’ element had been established. The vice, it was said, lay in the direction to the jury to ‘consider what the community would reasonably expect’. The danger was that the jury would substitute for their own view of what was reasonable what they perceived to be the community’s view of what was reasonable and that — given the range of views in the community— this substitution would work to the applicant’s detriment.
In response, counsel for the respondent submitted that the jury could not have been in any doubt that it was for them to assess the reasonableness of any belief held by the applicant as to the complainant’s consent. Counsel contended that the directions given by the judge were consistent with s 36A of the Crimes Act and s 47(3) of the Jury Directions Act 2015. Counsel also noted that the judge’s directions were consistent with the directions that he had discussed with counsel before he delivered the charge.
Counsel for the respondent submitted that it was not an error for the judge to observe that the jury, as members of the community, might have the ‘best idea’ of what the community would reasonably have expected of the applicant. He contended that the legislature considered that, as members of the community, juries were best placed to make the assessment as specified in s 47(3)(b) of the Jury Directions Act.
Grounds 1 and 2 — analysis and conclusion
The provisions of the Crimes Act which applied to the present case were inserted in the Act by s 4 of the Crimes Amendment (Sexual Offences and Other Matters) Act 2014 (‘the 2014 amendment’) which commenced operation from 1 July 2015. As amended, s 38 of the Crimes Act defines the crime of rape in the following terms:
(1) A person (A) commits an offence if —
(a) A intentionally sexually penetrates another person (B); and
(b) B does not consent to the penetration; and
(c)A does not reasonably believe that B consents to the penetration.
Section 36A is directed to the third element, the reasonableness of the belief as to consent. It provides:
36AReasonable belief in consent
(1)Whether or not a person reasonably believes that another person is consenting to an act depends on the circumstances.
(2)Without limiting subsection (1), the circumstances include any steps that the person has taken to find out whether the other person consents or, in the case of an offence against section 42(1), would consent to the act.
Before the 2014 amendment, the reasonableness of a belief by an accused person as to a complainant’s consent was relevant only in determining whether the accused actually held that belief. At common law, it was held that the reasonableness of the belief of the accused bore only on whether the accused in fact believed that the complainant was consenting.[4]
[4]See, eg, R v Flannery [1969] VR 31, 33 (Winneke CJ, Little and Barber JJ); R v Saragozza [1984] VR 187, 193–4 (Starke, Kaye and Brooking JJ).
The Crimes Amendment (Rape) Act 2007 inserted a provision in the Crimes Act (s 37AA(b)) which required a judge to direct the jury that, in considering whether the prosecution had proved beyond reasonable doubt that the accused was aware that the complainant was not or might not have been consenting, the jury must consider (inter alia) whether that belief was reasonable in all the relevant circumstances. The 2014 amendment repealed that provision and, as noted, in its place specified, as an element of the offence, that the accused did not reasonably believe that the complainant consented to the act of penetration.
Section 47(3) of the Jury Directions Act makes specific provision for directions on the ‘no reasonable belief’ element. Relevantly, s 47(3)(d) provides that the prosecution or defence counsel may request under s 12 of the Act that the trial judge:
(d)direct the jury that in determining whether the accused had a reasonable belief in consent, the jury must consider what the community would reasonably expect the accused in the circumstances in forming a reasonable belief in consent.
In the present case, the judge had a detailed discussion with both counsel — in accordance with s 12 of the Act — about what directions they each required. Relevantly, the prosecutor requested a direction in accordance with s 47(3)(d). Under s 14(1), his Honour was bound to give the requested direction ‘unless there [were] good reasons for not doing so’. It was not suggested, at trial or in this Court, that that proviso applied. As we have noted, defence counsel raised no objection to the giving of the direction.
Contrary to the applicant’s submission, the judge’s directions clearly complied with the applicable statutory provisions. So far as the Crimes Act is concerned, his Honour correctly directed the jury that, in order to convict the applicant, they must be satisfied, beyond reasonable doubt, that he did not reasonably believe that the complainant consented to penetration. In accordance with s 36A, the judge told the jury that such a belief would be reasonable if there were reasonable grounds for a person in the position of the applicant to hold that belief, and that the jury must consider all the circumstances in determining whether the belief in consent was reasonable.
His Honour then instructed the jury, in accordance with s 47(3)(d) of the Jury Directions Act, to consider what the community would reasonably expect of the applicant in the circumstances in forming a reasonable belief in consent. It was in that context that the judge told the members of the jury that they had ‘the best idea’ of what the community would reasonably expect.
In our respectful view, the directions were exemplary. The evident purpose of the statutory direction — to consider ‘what the community would reasonably expect’ — is to highlight the objective quality of the ‘no reasonable belief’ element of the offence of rape. As the judge told the jury, if the applicant (might have) believed that the complainant was consenting, proof of that element of the offence required them to be satisfied that any such belief was ‘unreasonable’ in the circumstances. The reference in the direction to the expectations of the community illuminates the idea of reasonableness as a general standard, to be distinguished from the subjective view of an accused person.
At the same time, as the statutory direction itself reaffirms, it is for the jury to ‘determine whether the accused had a reasonable belief in consent’. As his Honour rightly said, jurors are members of the community and, accordingly, they ‘have the best idea of what the community would reasonably expect’ of an accused in the circumstances of an alleged offence. In so saying, his Honour was reaffirming the vital role which jurors play as representatives of the community, bringing their collective experience and judgment to bear in deciding difficult questions of human behaviour.
Accordingly, there was no risk of the jury being diverted from their task. On the contrary, the directions they were given ensured that they properly understood what their task was.
For those reasons, we do not consider that either ground is reasonably arguable. Leave to appeal must therefore be refused. Before departing from the application for leave to appeal, however, we would make two further observations.
First, it is significant that at no stage did counsel for the applicant take an exception to the direction in the form it was given by the judge. At the conclusion of evidence, and before final address, the judge provided to counsel a document which contained the directions that he proposed to give to the jury concerning the elements of the charge. The judge discussed that document with counsel, including the section of directions that he proposed to give concerning the question whether the applicant had a reasonable belief that the complainant had consented.
In the course of that discussion, counsel for the applicant did not make any submission that the judge’s formulation of that direction was erroneous. Further, and after the judge had delivered that section of the charge to the jury, counsel did not raise any exception, or seek any redirection in respect of it. If counsel had reason to apprehend that the judge’s direction had, in some way, distracted the jury from assessing the belief of the applicant in consent, we would expect that counsel would have readily taken exception to it. Further, in the course of the jury’s deliberation, when the judge was asked to again direct them on the issues of consent and reasonable belief in consent, counsel did not object to the judge repeating that part of the charge to the jury.
Secondly, on the issues that were agitated in the trial, if the jury were satisfied, beyond reasonable doubt, that the complainant did not consent to the act of penetration, there was, in reality, little, if any, scope for the jury to consider that the applicant might have believed, reasonably or otherwise, that she did consent. On the complainant’s account, she made it clear, more than once, that she did not wish to participate in any sexual intimacy with the applicant. The cross-examination of the complainant by defence counsel, and his final address, were directed to discrediting that account. In circumstances in which the jury were satisfied, beyond reasonable doubt, that the complainant had not consented to the act of penetration, there was no basis on which the jury could have concluded that there was a reasonable possibility that, nevertheless, the applicant might have had any belief (reasonable or otherwise) that she had consented.
APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE
The sentence imposed on the applicant, of a total effective term of six years’ imprisonment with a non-parole period of four years, was constituted as follows:
Charge
Offence
Maximum
Sentence
Cumulation
Indictment H12018116A 1
Rape (contrary to s 38(1) of the Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences and Other Matters) Act 2014).
25 years’ imprisonment
5 years’ 6 months’ imprisonment
Base
Indictment H12018116B
1
Make threat to kill (contrary to s 20 of the Crimes Act 1958)
10 years’ imprisonment
1 year’s imprisonment
6 months cumulative on Indictment H12018116A
2
Use carriage service to menace, harass or cause offence (contrary to
s 474.17(1) of the Commonwealth Criminal Code Act 1995).3 years’ imprisonment
3 months’ imprisonment
Nil
Total Effective Sentence (State): 6 years’ imprisonment Total Effective Sentence (Federal): 3 months’ imprisonment, commencing 7 March 2019[5] Non-Parole Period: 4 years’ imprisonment Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991: 281 days 6AAA Statement: Indictment H12018116A — N/A Indictment H12018116B (Charge 1) — 18 months’ imprisonment; non-parole period of 12 months’ imprisonment Other relevant orders: Pursuant to s 34 Sex Offenders Registration Act 2004 the length of the reporting period is 15 years. [5]Pursuant to s 19AC(3) and (4) of the Crimes Act 1914 (Cth), a recognisance release order was not fixed, as the State sentence exceeds the 3 year period.
The applicant seeks leave to appeal against the sentence on four grounds, namely:
Ground 1 — The learned sentencing judge erred in failing to apply the principle of totality in sentencing the applicant.
Ground 2 — The learned sentencing judge erred in failing to take into account, or sufficiently take into account, the applicant’s (a) Aboriginality;
(b) deprived background, in sentencing the applicant.
Ground 3 — The learned sentencing judge erred in his consideration of Azzopardi v R [2011] VSCA 372 by (a) judging the issues of rape, threat to kill and violence were issues considered in that case; (b) Equating the level of seriousness of criminal behaviour to this case.
Ground 4 — The sentence imposed was manifestly excessive in both the maximum term and minimum terms.
The first three grounds, each alleging specific error, are directed to the judge’s consideration of three mitigating circumstances relied on by the applicant, namely, the principle of totality, the effect of the applicant’s dysfunctional and disadvantaged upbringing, and the applicant’s youth. For the reasons that follow, we are not persuaded that the applicant has demonstrated specific error under any of those grounds.
The judge clearly took each of those relevant considerations into account. The separate question is whether the sentence imposed can be seen to have accorded them sufficient weight. We consider that question under ground 4, the manifest excess ground.[6]
[6]Smith v The Queen [2020] VSCA 159, [10]–[12] (Maxwell P, Kyrou and Weinberg JJA).
The plea
The applicant was born in September 1998. He is an Aboriginal man of the Noongar people of Western Australia. The applicant’s parents have five living children, of whom the applicant is the youngest. His parents lost two other children in a house fire before he was born, and they lost the applicant’s twin brother during childbirth. The family moved from Western Australia to Victoria when the applicant was about five years of age. Since then he has grown up and lived in rural Victoria.
The applicant was raised in a household in which the use of drugs and alcohol was commonplace. Both of his parents have an extensive criminal history. Little attention was given to the applicant’s education. He attended a specialised school for young Aboriginal children until the age of six or seven years, and then transferred to a primary school. However, he ceased his education in Grade 6, and was unable to maintain secondary school placement because of behavioural issues.
At the age of 12, the applicant began to travel to the city by train. There he would attend skate parks. He was soon introduced to drugs, commencing with smoking cannabis at the age of 13 or 14 years. At the age of 16, he graduated to methylamphetamine, on which he became quite dependent.
In December 2014, the applicant was referred by the Department of Human Services to a psychologist, Mr Chris Wilson, for an assessment of his cognitive potential. At that time, the applicant was 15 years and three months of age. On testing, it was found that the applicant had a full scale intellectual quotient of 71 which meant that he performed as well as or better than only three per cent of students his age. Most of the test results showed that the applicant’s cognitive functioning equated to that of a child of 10 or younger. Mr Wilson observed that the applicant’s results indicated that he met the cognitive criteria for having an Intellectual Disability.
From an early age, the applicant came to the attention of the authorities. He had two Children’s Court appearances in South Australia in 2014 and 2015. In Victoria, he came before the Children’s Court on some 14 separate occasions between 2010 and 2016, for offences which included assault, recklessly cause injury, make threat to kill, and armed robbery. Between 2013 and 2016, he was on some four separate occasions sentenced to periods of youth detention. He does not, however, have any prior conviction for sexual offending.
On 18 January 2017, the applicant came before the Magistrates’ Court on charges that included criminal damage, assault and contravention of a family violence intervention order. He was sentenced to 49 days’ imprisonment, which equalled time already served, and he was placed on a 12 month community correction order (‘CCO’). Three months later, on 12 April 2017, he was again before the Magistrates’ Court on charges of theft, possession of an imitation firearm and recklessly causing injury. The CCO which he was then serving was confirmed, and he was sentenced otherwise to 67 days’ imprisonment which was equivalent to time already served.
The applicant was charged, and remanded in custody, on the present offence on 18 July 2017. He was granted bail on 21 February 2018. He was subsequently detained for a period of 280 days between 1 June 2018 and the date of sentence in the present case. Thus, the applicant had been detained for a total of 499 days between 18 July 2017 and the date of his sentence on 7 March 2019. During that period, he served two further terms of imprisonment, totalling 218 days, in respect of other charges. It was for that reason that the applicant’s pre-sentence detention in the present case was declared at 281 days.
On the plea, counsel for the applicant relied, as mitigating circumstances, on the applicant’s youth, his dysfunctional upbringing, his low intellectual level, and the importance of rehabilitation. Counsel referred to the principle of totality, submitting that the sentence should take account of the lengthy period which the applicant had spent in custody since turning 18 years of age. Counsel also relied on the fact that the applicant had been serving his sentences as a protected prisoner, and as a result the term of imprisonment would be more onerous than if he were a prisoner in the mainstream system.
In view of the applicant’s age, the judge had the applicant assessed for suitability for a youth justice centre order. On assessment, the applicant was found to be unsuitable for such an order, because he had been in adult custody for some time, he was not an impressionable person, and he would be a disruptive influence in the youth justice system.
Reasons for sentence
The judge commenced his reasons for sentence[7] by summarising the circumstances of the offending consistently with the verdict of the jury. The judge then referred to the victim impact statements filed on behalf of the complainant and her mother. In her statement, the complainant had stated that the offending had made her feel dirty, that she experienced anxiety and sadness, and that she suffered from interrupted sleep and nightmares. She had ceased her studies as a result of the offending and had lost the motivation to work. She had also become distrustful of men.
[7][2020] VCC 268 (‘Reasons’).
The judge observed that the applicant’s offending had had a ‘profound and devastating effect’ on the complainant, who had thought that the applicant was her friend.[8] The applicant’s mother, in her victim impact statement, described the profound impact of the offence on the complainant, stating that the applicant had given her a ‘life sentence of what she described as a nightmare and sadness’.[9]
[8]Ibid [19].
[9]Ibid [20].
His Honour then summarised the matters relevant to the applicant’s personal circumstances. He noted that the applicant had spent more than 600 of the 860 days since his 18th birthday in adult custody.[10] The judge also noted that the applicant had grown up in a household ‘… where unemployment, drug use and contact with the criminal justice system were the norm’.[11] The judge summarised the applicant’s limited education, and described his descent into the abuse of illicit drugs.[12]
[10]Ibid [21].
[11]Ibid [23].
[12]Ibid [21]–[24].
The judge noted that there were a number of circumstances that were relevant to the assessment of the seriousness of the applicant’s offending. The complainant was his friend. He had breached her trust in him, and he had taken advantage of her when she was in a vulnerable state. He had not used a condom, thus exposing the complainant to the risk of infection or pregnancy. The offences were committed while the applicant was already serving a community correction order.[13]
[13]Ibid [34]–[35].
The judge then considered the weight which should be given to the applicant’s youth as a mitigating factor. The judge acknowledged the principle that, in sentencing a young offender such as the applicant, it was necessary to tailor the sentence in a manner which was designed to promote the offender’s rehabilitation.[14] As his Honour said, that approach ‘serves the interests of the individual offender and the community as a whole’.
[14]Ibid [37].
His Honour then set out the key propositions from R v Mills[15] concerning the treatment of youth as a mitigating factor, before setting out the following passage from Azzopardi v The Queen:[16]
The general proposition which flows from these authorities is that where the degree of criminality for the offences requires sentencing objectives of deterrence, denunciation and just punishment and the protection of the community to become more prominent in the sentencing calculus, the weight to be attached to youth is correspondingly reduced. As the level of seriousness of the criminality increases there will be a corresponding reduction in the mitigating effect of the offender’s youth, but only in the circumstances of the gravest criminal offending where there is no realistic prospect of rehabilitation may the mitigatory consideration of youth be viewed as all but extinguished.[17]
[15][1998] 4 VR 235, 241 (Batt JA) (‘Mills’).
[16](2011) 35 VR 43; [2011] VSCA 372 (‘Azzopardi’).
[17]Reasons [40].
The judge outlined the applicant’s previous convictions and the time that he had spent in custody. He took into account that the applicant was serving his sentence as a protected prisoner, which meant that his sentence of imprisonment would be more onerous for him than if he were a prisoner in mainstream prison.[18] The judge assessed the applicant’s prospects of rehabilitation as ‘guarded,’ and that the applicant was at risk of becoming institutionalised, as he had spent approximately three-quarters of his life in adult prison since turning 18 years of age.[19] His Honour considered that the sentencing purposes of general deterrence and specific deterrence each had a ‘role to play’ in the sentence.[20]
[18]Ibid [48].
[19]Ibid [52].
[20]Ibid [50].
Ground 1 — totality
Counsel noted that the applicant had been incarcerated in an adult prison for 600 days of the 860 days since his 18th birthday. Counsel submitted that in those circumstances, the sentence imposed on the charge of rape should have been moderated in order to comply with the sentencing principle of totality. He contended that that principle was of particular application because of the applicant’s youth and because he had already spent a substantial time in custody, during which time his rehabilitation had already been under way.
In response, counsel for the respondent submitted that the judge was plainly aware of the principle of totality, as his Honour expressly referred to the periods of time which the applicant had spent in adult prison since his 18th birthday. Counsel further noted that the arguments advanced on behalf of the applicant under ground 1 related more to the weight that the judge had given to the principle of totality which was a matter to be considered as a particular of ground 4, namely, that of manifest excess.
In sentencing the applicant, the principle of totality required the judge to take into account the periods of time during which the applicant had been in custody serving separate sentences and after he had been remanded in custody in respect of the present matter. Ordinarily, the combined amount of the sentence imposed in the present case and the sentences served by the applicant in respect of the separate matters should, in some measure, correspond with the total effective sentence which would have been imposed on the applicant if he had been sentenced on the charge of rape, and on the other charges in the separate matters, at the same time.[21]
[21]Mill v The Queen (1988) 166 CLR 59, 63, 66–7; [1988] HCA 70 (Wilson, Deane, Dawson, Toohey and Gaudron JJ).
The judge set out, in some detail, the various sentencing dispositions to which the applicant had been subject since January 2017. He noted that the applicant had served two separate sentences, totalling 218 days, in respect of the two other matters while he was on remand in respect of the charge in the present case.[22] Having done so, the judge specifically stated that he took into account the total time that the applicant had been in custody when fixing the sentence in the present case.[23]
[22]Reasons [42]–[45].
[23]Ibid [46].
It is quite clear, therefore, that the judge did take into account and apply the principle of totality. The question whether, in doing so, he gave sufficient weight to that principle is, as we have already indicated, a matter that is more appropriate to consider under ground 4.
Accordingly, ground 1 must fail.
Ground 2 — disadvantaged background
Counsel for the applicant submitted that the judge erred by failing to take into account, or sufficiently into account, the applicant’s Aboriginality and his deprived background. Counsel noted that the applicant had been raised by parents who had no respect for authority or the law, and who placed no value in his education and proper upbringing. As a consequence, the applicant commenced drinking alcohol and using cannabis at an early age, and later became dependent on methylamphetamine. Counsel submitted that, although the judge acknowledged the Aboriginality of the applicant and his difficult upbringing, his Honour had failed to take that circumstance sufficiently into account in determining the applicant’s sentence.
In response, counsel for the respondent pointed out that the defence submissions on the plea placed no reliance on the principles enunciated in Bugmy v The Queen,[24] regarding the relevance to sentencing of a dysfunctional upbringing. Despite that, the judge had stated in his reasons that the applicant had ‘grown up in a household where unemployment, drug use and contact with the criminal justice system were the norm’.[25]
[24](2013) 249 CLR 571; [2013] HCA 37 (‘Bugmy’).
[25]Reasons [23].
There is no substance in the complaint of specific error. The express reference in the sentencing reasons demonstrates that his Honour took into account the difficult circumstances in which the applicant had been raised. Once again, the real complaint is that insufficient weight was given to the mitigating force of those circumstances, a complaint which can only be considered under ground 4.
For those reasons, ground 2 is not sustained.
Ground 3 — youth
The applicant’s submission in support of ground 3 drew attention to the judge’s reliance on the passage from Azzopardi[26] set out earlier. It was said that his Honour had wrongly characterised the present case as one where the mitigatory effect of the applicant’s youth was significantly reduced by reason of the gravity of the offending. Counsel submitted that the passage in Azzopardi was directed to the case of young offenders whose offending was significantly more serious than that of the applicant. He contended that the ‘rider’, stated by Redlich JA in Azzopardi, concerning the reduced mitigatory effect of youth in such cases, did not apply — at least, not with the same force — to the position of the applicant.
[26](2011) 35 VR 43, 56 [44]; [2011] VSCA 372 (Redlich JA, Coghlan AJA agreeing at [92], Macaulay AJA at [93]).
This ground, too, may be disposed of shortly. The judge clearly took the applicant’s youth into account. The question of weight must be considered under ground 4.
Ground 4 — manifest excess
Counsel for the applicant submitted that the sentences imposed on the applicant were manifestly excessive, in view of what were said to be the powerful mitigating factors which had to be taken into account. The sentencing decision showed, it was said, that insufficient weight must have been given to the youth of the applicant, his intellectual disability, his deprived background, and the fact that he had spent much of the previous two years in an adult jail.
In response, counsel for the respondent noted that the applicant was unable to rely, as mitigating circumstances, on a plea of guilty or on remorse. Counsel submitted that the offending by the applicant was serious, in circumstances in which he breached the trust that the victim had reposed in him. Counsel acknowledged that there were important mitigating factors, the foremost of which were the applicant’s age and his risk of institutionalisation. In addition, his deprived upbringing and his ADHD were important mitigating factors. Nevertheless, it was submitted, the sentences imposed on the applicant were not wholly outside the range of sentencing options available to the judge.
In order to succeed on this ground, the applicant must demonstrate that the sentence was wholly outside the range of sentencing options available to the judge. In other words, it must be demonstrated that it was not reasonably open to impose that sentence if proper weight had been given to all relevant factors.[27]
[27]Clarkson v The Queen (2011) 32 VR 361, 384 [89]; [2011] VSCA 157 (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); DPP v MacArthur [2019] VSCA 71 [58] (Ferguson CJ, Kaye and Weinberg JJA).
The offence of rape is, by its nature, a serious offence, the prescribed maximum sentence being 25 years’ imprisonment. In the present case, the judge correctly identified a number of factors which were relevant to an assessment of the gravity of the offence. They included that the applicant had breached the complainant’s trust, and taken advantage of a vulnerable friend. He did not use a condom, and he committed the offence while serving a community correction order.
On the other hand, there were important mitigating circumstances which were relevant to an assessment of the applicant’s moral culpability. In particular, the offence was committed by a young person, with a mild intellectual disability, from a highly disadvantaged background. He had been raised in circumstances in which he lacked almost entirely any constructive parental nurturing and guidance. His values and behavioural norms were necessarily shaped and formed in the dysfunctional circumstances of his childhood and early adulthood.
It was common ground in this Court that the circumstances of disadvantage which the applicant faced in his childhood were relevant to an assessment of his moral culpability, in the manner explained by the High Court in Bugmy. In that case, after referring to the oft-cited statement of principles enunciated by Wood J in R v Fernando,[28] the Court stated:
Of course, not all Aboriginal offenders come from backgrounds characterised by the abuse of alcohol and alcohol-fuelled violence. However, Wood J was right to recognise both that those problems are endemic in some Aboriginal communities, and the reasons which tend to perpetuate them. The circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way.[29]
[28](1992) 76 A Crim R 58, 62–3.
[29]Bugmy (2013) 249 CLR 571, 594 [40]; [2013] HCA 37 (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).
Regrettably, neither counsel drew his Honour’s attention to Bugmy nor, as a result, did his Honour have the assistance of any submissions directed at the question of how the applicant’s deprived childhood bore on his moral culpability for this offence. Some months after the sentencing in the present case, this Court in Director of Public Prosecutions v Drake[30] applied the Bugmy principles in the following terms:
In particular, the profound dysfunction, disadvantage and abuse experienced by the respondent during his formative years were relevant to an appropriate evaluation of his moral culpability. As recognised by the High Court in Bugmy, those experiences, none of which were of his making, all played a significant role in shaping the respondent’s personality and his responses. As a consequence, his subjective culpability, for the offending in which he engaged, could not be equated with that of a person who committed the same offence but had had the advantage of a normal, stable and regular home environment during his or her childhood years. In that way, those factors constituted an important mitigating circumstance in the determination of the respondent’s sentence.[31]
[30][2019] VSCA 293.
[31]Ibid [32] (Maxwell P, Priest, Kaye, T Forrest and Emerton JJA) (citation omitted). See also DPP v Heyfron [2019] VSCA 130, [57]–[58] (Priest, Kaye and T Forrest JJA).
For similar reasons, in our view, the applicant’s moral culpability for the offending could not be equated with that of a person who committed the same offences, but who had had the advantage of a normal stable home environment in which he had been guided by appropriate parenting. It is most important not to underestimate the destructive effect on a small child of growing up ‘in a household where unemployment, drug use and contact with the criminal justice system were the norm’. Such a setting was antithetical to the applicant developing a proper sense of the social norms of appropriate behaviour, or an appreciation of the need to comply with the law.
Those grave disadvantages were greatly compounded by the fact that the applicant’s schooling ceased when he was only 12. From then on, his life took a steeply downward trajectory, through alcohol to social drug-taking to serious ice addiction. As early as 2011, while he was still 12, he was before the Children’s Court on a charge of arson; a year later, he was again before that Court on charges of criminal damage, threat to kill and unlawful assault.
To treat the circumstances of the applicant’s childhood and adolescence as reducing his moral culpability does not alter the objective gravity of the offending or its devastating effect on the complainant. The judge rightly treated those matters as significant sentencing considerations. But a reduction in moral culpability bears directly on the level of punishment which is called for, as the Sentencing Act 1991 makes clear.[32]
[32]Sentencing Act 1991 s 5(2)(d).
Similar considerations arise because of the applicant’s youth. As the judge noted, the guiding principles were laid down in Mills, where Batt JA (with whom Phillips CJ and Charles JA agreed) said that the youth of an offender should be a ‘primary consideration’ for a sentencing court where that issue properly arises:
In the case of a youthful offender rehabilitation is usually far more important than general deterrence. This is because punishment may in fact lead to further offending. Thus, for example, individualised treatment focussing on rehabilitation is to be referred. (Rehabilitation benefits the community as well as the offender.)[33]
[33]Mills [1998] 4 VR 235, 241.
In Azzopardi, Redlich JA (with whom Coghlan AJA and Macaulay AJA agreed) identified three considerations which underlie the general primacy afforded to an offender’s youth as a sentencing consideration. First, young offenders, being immature, are ‘more prone to make ill-considered or rash decisions’. In that respect, they ‘may lack the degree of insight, judgment and self-control’ possessed by a more mature adult. They may not ‘fully appreciate the nature, seriousness and consequences of their criminal conduct’.[34] Secondly, the courts recognise the potential for young offenders to be redeemed and rehabilitated.[35]
[34]Azzopardi (2011) 35 VR 43, 53 [34]; [2011] VSCA 372.
[35]Ibid 54 [35].
Thirdly, and as an allied consideration, the courts are conscious that incarceration of a young person for an extended period in an adult prison may be counterproductive, by introducing an offender to, and entrenching him or her in, the antisocial influences of fellow prisoners. In that respect, Redlich JA stated:
Thirdly, courts sentencing young offenders are cognizant that the effect of incarceration in an adult prison on a young offender will more likely impair, rather than improve, the offender’s prospects of successful rehabilitation. While in prison a youthful offender is likely to be exposed to corrupting influences which may entrench in that young person criminal behaviour, thereby defeating the very purpose for which punishment is imposed. Imprisonment for any substantial period carries with it the recognised risk that anti-social tendencies may be exacerbated. The likely detrimental effect of adult prison on a youthful offender has adverse flow-on consequences for the community.[36]
[36]Ibid 54 [36] (citations omitted).
In our respectful view, the first and third of those considerations applied with great force to the present case. As to the first, the applicant’s offending reflected what his counsel described as his ‘profound immaturity’. The rape was opportunistic, as his Honour accepted. It showed his ‘lack of insight, judgment and self-control’, and his responses to the complainant’s subsequent allegations showed his lack of appreciation of the seriousness of what had occurred.
As to the third consideration, the report which the judge obtained from Youth Justice exposed just how badly the applicant was faring in adult custody. The judge was acutely conscious of the time which the applicant had already spent in custody, and of the risk of institutionalisation. His Honour told defence counsel that he had had ‘a long, hard think’ about his client, after calculating that ‘since …the day he turned 18, he’s been in adult prison for 600 of the 860 days’.[37] His Honour therefore sought a report on the applicant’s suitability for a youth justice centre order.
[37]Transcript of Proceedings (14 February 2019) 295.17–18, 305.25–6.
The Youth Justice report concluded that he was not suitable, because of repeated incidents of abusive and threatening behaviour in custody. The report described the applicant’s presentation as that of ‘an angry person who sees himself as the victim in this matter and he appeared to be entrenched in the prison system culture’.
In that context, it is relevant that at the time of sentence the applicant had been (and still is) a ‘protected prisoner’. In those circumstances, it was (and still is) likely that a term of imprisonment would be more burdensome for the applicant than if he were serving his sentence in a mainstream prison.[38] In addition, and importantly, the applicant’s status as a protected prisoner would reduce his ability to access and participate in education and other programs which would be directed to his rehabilitation.
[38]R v Rostom [1996] 2 VR 97, 102 (Charles JA, Callaway JA and Vincent AJA agreeing at 105).
Totality was a further — and allied — mitigating factor. As noted earlier, only part of the applicant’s time in custody before sentence was referable to pre-sentence detention in respect of the present offences. If each of the other unrelated matters had been heard and determined at the same time as the present matter, it might be expected that there would have been some concurrency provided for in the sentencing disposition, in accordance with the principles discussed in Mills.
The judge was faced with an extraordinarily difficult sentencing exercise. He had to impose sentence for serious offences, taking into account the grave harm caused to the complainant, while at the same time recognising that further time in adult prison would almost certainly prejudice the applicant’s prospects of rehabilitation. In the end, however, we are persuaded that the sentences imposed on the applicant were outside the range reasonably available in the circumstances.
For the reasons we have given, the applicant’s moral culpability was significantly reduced by reason of his disadvantaged upbringing and his youth. Those considerations in turn made his rehabilitation a matter of the highest importance. Otherwise the cycle of offending will almost certainly continue, to the great detriment of the community and of the applicant himself. We would add that the community would be far better served if the money spent by the State on his continued incarceration could be redirected to intensive individual interventions which the applicant so obviously needs.
In view of that conclusion, the appeal must be allowed and the applicant resentenced. Taking into account the seriousness of the offences, and the mitigating circumstances, we resentence the applicant as follows:
·On charge 1 on indictment number H12018116A (the charge of rape), four years’ imprisonment.
·On indictment number H12018116B charge 1 (making a threat to kill), eight months’ imprisonment.
·On charge 2 on the indictment (the Commonwealth offence of using a carriage service to harass), three months’ imprisonment.
·In relation to charge 1 on indictment number H12018116B (making a threat to kill), it is directed that four months of that sentence be served cumulatively upon the sentence of four years’ imprisonment for the rape charge.
·The sentence on charge 2 (the Commonwealth charge of using a carriage service to harass) is to commence on the date of original sentencing, so that it runs concurrently with all the other sentences.
Accordingly, the total effective sentence is four years and four months’ imprisonment. We fix a non-parole period of two years and four months’ imprisonment. An appropriate declaration will be made in respect of the time already served by the applicant as pre-sentence detention pursuant to s 18(4) of the Sentencing Act.
Pursuant to s 6AAA of the Sentencing Act, if not for the applicant’s guilty plea to the two charges on indictment H12018116B, we would have sentenced the applicant to 12 months’ imprisonment on charge 1, and to six months’ imprisonment on charge 2, on that indictment, and made relevant orders as to concurrency so that the applicant’s total effective sentence would have been four years and ten months’ imprisonment on all charges with a non-parole period of two years and eight months.
Summary of conclusions
For the foregoing reasons we have reached the following conclusions:
(1)The application for an extension of time for the applicant to apply for leave to appeal against conviction and sentence is allowed.
(2)The application for leave to appeal against conviction is refused.
(3)The application for leave to appeal against sentence is granted, the appeal against sentence is allowed, and the applicant is resentenced in the terms contained in paragraphs 101 and 102 above.
McLEISH JA:
The sentencing judge in this case was presented with an acutely difficult task. The offence of rape is always serious, and this was a stark example. The applicant breached the trust of a friend by inserting his penis into her vagina despite the fact that she was crying and saying that she did not want it to happen, and telling him to stop. He was not wearing a condom and he ejaculated while penetrating her vagina. She has been devastated by what he did to her.
The applicant has numerous convictions for violence and was on a community correction order at the time of the offence. He cannot call in aid the benefits of a guilty plea on the rape charge, or point to any evidence of remorse. To the contrary, he pleaded guilty to having made a threat to kill the complainant a few days after the rape, after she said she never wanted to see him again.
On the other hand, the applicant was 18 years old at the time of the offence. He had an extremely deprived upbringing, growing up in a household where unemployment, drug use and engagement with the criminal justice system were normalised. Both his parents had an extensive criminal history. He is mildly intellectual disabled and suffers from ADHD. As Maxwell P and Kaye JA explain, these considerations serve to diminish the applicant’s moral culpability.
The reasons of Maxwell P and Kaye JA also explain why an offender’s youth generally has primacy as a sentencing consideration. Among other things, both the offender and the community benefit if the opportunity is taken to impose a sentence that maximises the prospects of the offender’s rehabilitation, and those prospects are greatest in a youthful offender who may be more susceptible to positive influences. Conversely, a lengthy term of imprisonment will expose the offender to harmful influences and may thereby serve to dampen or dash those prospects.
The sentencing judge was keenly alive to these competing considerations. The offending was serious and demanded denunciation and just punishment, there was no remorse and specific deterrence was a significant consideration. Ultimately, however, there was a compelling combination of factors pointing to a substantially lower sentence than was imposed. These include the applicant’s youth and the damaging effects of his upbringing. It is also significant that the applicant will most likely be required to serve his term of imprisonment in protection, rather than in sections of prison dedicated to the needs of young or indigenous prisoners, in which he might access potentially beneficial programs. This not only serves to make imprisonment more onerous for him but, very importantly in this case, it will exacerbate the probable harmful effects of incarceration, to the further detriment of his future rehabilitation. To that must be added the further consideration that, before trial, the applicant served terms of imprisonment totalling 218 days (or about 7 months) which were not able to stand as pre-sentence detention. In all the circumstances, I therefore agree that the sentences of 5 years and 6 months’ imprisonment on the rape charge, and 12 months’ imprisonment with 6 months cumulated on the threat to kill charge, were not reasonably open.
I am reinforced in this conclusion by having regard to other sentences imposed in this Court for rape committed by youthful offenders. There appear to be very few such cases, at least in recent times.[39] Taken by themselves, these cases do not, of course, establish manifest excess in the present sentence. But in my view they confirm that the sentence of 5 years and 6 months’ imprisonment on the rape charge was not reasonably open.
[39]I leave out of account Webster (A pseudonym) v The Queen (2016) 258 A Crim R 301; [2016] VSCA 66, involving a 17-year-old offender dealt with under the youth justice system.
In the first case, Simon v The Queen,[40] a 20-year-old convicted of acts of digital penetration committed while the complainant was initially asleep was sentenced in this Court to 3 years’ imprisonment with a non-parole period of 18 months. The sentence imposed after trial, 4 years’ imprisonment with a non-parole period of 2 years, was held to be manifestly excessive.[41] While that offender could call on his otherwise good character, and the offence was at the lower end of seriousness, he was older than the present applicant and did not have his history of deprivation or cognitive problems. Nor was it said that he would be likely to serve his sentence in protection.
[40][2010] VSCA 66.
[41]Ibid [58] (Ashley JA, Bongiorno JA and Harper JA agreeing at [62] and [63]).
Secondly, in Coronado v The Queen,[42] another 20-year-old offender, also of hitherto good character, was sentenced on two counts of rape, again after a trial, to a total effective sentence of 5 years’ imprisonment, with a non-parole period of 3 years. This Court upheld a manifest excess argument and imposed a sentence of 4 years, with a non-parole period of 2 years.[43] The offending involved closely connected digital and penile penetration of an initially sleeping complainant, which ceased when she resisted, and which was classed as being at the lower end of offending. The offender faced the prospect of deportation and isolation from his family overseas while in prison. Again, the offending was less serious than the applicant’s, but this offender was also older and could not call in aid the other mitigating factors available to the applicant.
[42][2016] VSCA 86.
[43]Ibid [24]–[25] (Osborn JA, Priest JA agreeing at [28]).
In the circumstances I agree that ground 4 of the appeal against sentence should be upheld. I join in the proposed resentencing orders.
I agree with Maxwell P and Kaye JA, for the reasons they give, that none of the specific errors alleged in grounds 1–3 of the appeal against sentence are made out. I also agree, for the reasons they give, that extensions of time should be granted and that the application for leave to appeal against conviction should be refused.
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