Bowen v The Queen
[2011] VSCA 67
•11 MARCH 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 507A of 2008
| ANDREW BOWEN |
| v. |
| THE QUEEN |
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JUDGES: | WARREN CJ, REDLICH JA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 2 MARCH 2010 | |
DATE OF JUDGMENT: | 11 MARCH 2011 | |
MEDIUM NEUTRAL CITATION: | [2011] VSCA 67 | |
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CRIMINAL LAW – Sentencing – Rape – Youthful offender – Targeted isolated victim – Premeditation and preparation – Home invasion – Restraint of victim – Multiple acts of rape – False imprisonment – Plea of guilty at earliest opportunity – Drug and alcohol problems - Reasonable prospects of rehabilitation – Total effective sentence of 11 years and non-parole period of 8 years – Whether sentencing judge erred in assessing mental state of appellant at time of offending – R v Verdins (2007) 16 VR 269 – Whether sentencing judge erred in giving too much weight to aggravating factors and too little weight to mitigatory factors – Whether total effective sentence, non-parole period and sentence on each count as cumulated crushing, disproportionate and manifestly excessive – R v Verdins (2007) 16 VR 269 correctly applied – Gravity of offence – Sentencing judge erred in giving insufficient weight to offender’s youth – Orders for cumulation attended by error – Sentence crushing, disproportionate and manifestly excessive – Appeal allowed – Appellant re-sentenced - Total effective sentence of nine years and nine months and non-parole period of six years and nine months.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr P Priest QC | Leanne Warren & Associates |
| Mr T Kassimatis | ||
| For the Crown | Mr D Trapnell SC | Mr C Hyland, Solicitor for Public Prosecutions |
WARREN CJ:
The circumstances of the appeal
The appellant, Andrew William Bowen, pleaded guilty on 13 December 2007 to one count of stalking (count 1), three counts of rape (counts 2, 3 and 4), one count of false imprisonment (count 5) and one count of theft (count 6). Apart from count one, these offences were committed in the early hours of 17 March 2007 when he entered the home of his victim whilst she slept.
On 20 December 2007, the appellant was convicted and discharged on count 1, sentenced to 90 months’ imprisonment on each of counts 2, 3 and 4, 30 months’ imprisonment on count 5 and seven days’ imprisonment on count 6. It was directed that 18 months of each of the sentences imposed on counts 3 and 4 and six months of the sentence imposed on count 5 be served cumulatively on count 2. The total effective sentence was eleven years imprisonment with a non-parole period of eight years.
Leave having been granted pursuant to s 582 of the Crimes Act1958 on 28 November 2008, he now appeals against the sentence imposed.
The circumstances of the offending
On 9 March 2007, the appellant accessed two pornographic websites named ‘rapeworld.net’ and ‘rapefear.com’ containing graphic photographic images of rape. He also entered the word ‘rape’ into the image generator of the internet search engine Google. After his arrest, police also found 18 pornographic images on his computer, including images of a person wearing a balaclava sexually assaulting a female, as well as an extract from a purported ‘special operations’ manual downloaded by the appellant on 23 April 2006, describing how to avoid leaving forensic evidence at crime scenes. Earlier, on 31 January 2007, the appellant had purchased a packet of cable ties from the Eltham Autobarn.
In the two weeks prior to the acts of rapes for which he has been convicted, the appellant visited the house where his victim lived and watched her sister and possibly her whilst they were showering through her bathroom window. This behaviour eventually constituted the charge of stalking which formed count 1 of the presentment.
After coming home from work at around 4.00 pm or 5.00 pm on Friday, 16 March 2007, the appellant began drinking with his father, and then, it appears, alone. The appellant stated that he was drinking scotch mixed with Coca Cola, and asserts that he drank between three quarters and the whole of a 750ml bottle of scotch. He also stated that he had taken half a tablet of amphetamine.
At some point towards the middle of the night, the appellant drove his car to the victim’s house. Her car was parked in the driveway and was distinguishable, both from the appellant’s prior knowledge of her, and from its personalised numberplate. The appellant parked his car some distance from the house, got out, and proceeded to go and look into the victim’s windows. He then drove home, collected latex gloves, a balaclava, a steak knife and cable ties and returned on foot to the victim’s house.
In the early hours of the morning of Saturday 17 March 2007, the appellant proceeded to cut the flywire away from the dining-room window of the victim’s house, and let himself in, leaving the steak knife on the windowsill.
At this time, the victim was alone in the house and asleep in her bedroom. Her bedroom door was closed and she was sleeping wearing her underwear. She awoke to the sound of her bedroom door being opened and saw the appellant standing in the doorway wearing dark clothing, a dark balaclava and latex gloves. The victim said the word ‘hello’ and the appellant turned away from her. The victim said the word ‘hello’ again, and the appellant flicked the bedroom light switch on and off twice momentarily blinding her before jumping onto the bed and throwing her over onto her stomach. He tied the victim’s hands behind her back with cable ties and asked her if anyone was home, she replied ‘no’.
The appellant proceeded to pull the victim’s underpants down around her knees and lift her into a kneeling position. He penetrated her vagina from behind with his penis. He raped her in this position for between five and ten minutes, holding her whilst doing so around her hips and breasts. This act constituted the first count of rape, count 2, of which the appellant was convicted. Whilst engaged in this act of rape the appellant paused when he heard a car driving past and asked the victim whether anyone was home or was coming home. The victim replied that no-one was coming home.
The appellant then removed his penis from his victim’s vagina and penetrated her anus. This act constituted the second act of rape, count 3, of which the appellant was convicted. After some time the appellant withdrew, told his victim not to move and went to the bathroom.
The appellant returned to the bedroom about a minute later, anally penetrated the victim for the second time and proceeded to rape her again for between five and ten minutes. This act constituted the third count of rape, count 4, of which the appellant was convicted.
The appellant then withdrew, got off the bed, went over to the bedroom door and removed the door handle by unscrewing it. He also picked up the victim’s mobile telephone from her bedside table. This act constituted the act of theft, count 6, of which the appellant was convicted. The victim remained bound on her bed. The appellant said to the victim words to the effect of ‘I’m sorry, it’s the medication that makes me do it, it stuffs with my head’ before slamming shut the bedroom door and fleeing the premises. This act, along with the appellant’s previous conduct in restraining the victim, constituted the act of false imprisonment, count 5, of which he was eventually convicted.
Thus, the victim was left trussed up, humiliated, degraded and terrified.
Three or four minutes after the appellant had left, the victim unsuccessfully attempted to cut the cable ties around her wrists with a pair of scissors from her bedside table. The victim managed to get over to a window where she was able to call for help. A male neighbour came to her assistance and also called the police.
In the two weeks following the commission of these offences, the appellant endeavoured to destroy any evidence linking him to them. He burnt his balaclava, the remaining cable ties in his possession and the shoes he wore that night. He also disposed of the clothing he was wearing that night and cut and dyed his hair.
On the basis of information passed on from an anonymous source, the police attended the home of the appellant on Tuesday, 8 May 2007. A forensic sample from the appellant was provided by consent.
After the police had left, the appellant withdrew $800 from a bank account, drove to Melbourne Airport, and purchased a one way ticket from Melbourne to Sydney. He then went on a drug and alcohol fuelled binge during which time he consumed alcohol, marijuana and ecstasy.
In the early hours of Wednesday, 9 May 2007, the appellant arrived at the Greensborough Police Station in an intoxicated state. After becoming abusive and aggressive, the appellant was subdued by police. Whilst being taken to a hospital to be treated for exposure to capsicum spray the appellant admitted to the officers conveying him thence that he had raped the victim on 17 March 2007.
The appellant was subsequently interviewed by police. He made full admissions.
The circumstances of the appellant
The appellant was nineteen at the time of the offences and twenty on the date on which he was sentenced. Prior to the offences in question, the appellant had never been charged or convicted of any criminal offences. After leaving school in Year 11, he was employed completing a brick-laying apprentice, which job he was employed in at the time of the attack. His family background was good.
The appellant was assessed as having only an average intelligence and the maturity level of a sixteen year old. He had a history of heavy alcohol and drug, particularly marijuana, abuse stretching back four or five years and had begun experimenting with amphetamines and ‘No Dose’ tablets. The appellant was also diagnosed as suffering from ‘depressive symptomatology’ at the time of the offending and was socially isolated.
Psychological reports at the plea indicated that the appellant began viewing adult pornography from around the age of fourteen-and-a-half or fifteen, and began to view more extreme forms of pornography from around the age of seventeen or seventeen-and-a-half. The reports also indicated that this behaviour formed part of ‘a very active sexual fantasy life’ which included sexual fantasies involving his eventual victim. The appellant’s clinical psychologist believed, and the sentencing judge accepted, that the appellant became obsessed by internet pornography and eventually moved from fantasy to enacting his fantasies in real life. At the plea he stated:
[T]here is now emerging evidence to indicate that some vulnerable persons can become quite obsessed with viewing that material [rape themed pornography], particularly via the Internet and through chat rooms, and the evidence also indicates that for a percentage of these people, seemingly a small percentage, their obsession and addiction can not just then overwhelm their fantasy life, but can sometimes move across into real life behaviour.
It was accepted that the appellant was utterly remorseful. He pleaded guilty at the earliest opportunity, and co-operated with police after admitting to them his responsibility. However, it is pertinent to note that his remorse only commenced after a forensic sample was sought from him many weeks after the offences were committed. His behaviour in that interim period was designed to limit the possibility that he would be identified as the perpetrator of the acts for which he was convicted. The appellant’s prospects of rehabilitation were assessed as reasonable at the time of sentencing, but were dependant on addressing his drug and alcohol problems and receiving adequate psychiatric and psychological assistance whilst incarcerated.
The nature of the appeal
The appeal rests on three primary arguments: first, that the mental state of the appellant at the time of offending and the effect of that mental state on his behaviour were not correctly assessed by the sentencing judge (ground 6); secondly, that the sentencing judge gave too much weight to factors tending towards the imposition of a longer sentence of imprisonment and too little weight to factors going to mitigation of the appellant’s offending (grounds 4 and 5); and, thirdly, that the total effective sentence, the non-parole period and the sentences on each count and as cumulated by the sentencing judge were crushing, disproportionate and manifestly excessive (grounds 1, 2 and 3).
The appellant’s mental state at the time of his offending
The appellant has submitted that the sentencing judge was in error in failing to find that at the time of offending his mental state was severely compromised, and that his moral culpability was reduced by reason of his mental state. The respondent has submitted that this is an evidentiary question and that the sentencing judge was in the best position to observe the demeanour, manner and content of the evidence tendered into court by the appellant’s clinical psychologist, Mr Cummins, on this point and draw the correct conclusions from it.
An offender’s mental functioning need only be impaired, not severely compromised, at the time of offending in order for that fact to be relevant when sentencing them.[1] Whilst falling short of ‘serious psychiatric illness’, it:
may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.[2]
[1]R v Verdins (2007) 16 VR 269, 271 [5].
[2]Ibid 276, [32].
As Lasry AJA observed in R v Shafik-Eid:
For Verdins principles to apply, the appellant had to show that the mental condition had directly contributed to the commission of the offences.[3]
[3][2009] VSCA 217 [27].
It is clear from a review of the transcript of the hearing at which Mr Cummins gave his evidence, that it was not open on the evidence before the sentencing judge to find that the appellant’s mental condition directly contributed to the commission of the offences of which he has been convicted. The following transcript passage is sufficient to illustrate that fact and dispense with this ground of appeal:
HIS HONOUR: But going back to the issue of depression, what connection, if any, has depression got with sexual predation like has happened here, if any?
MR CUMMINS: I’m not suggesting, your Honour, that there was any direct link. I’m suggesting that this man’s mental state was severely compromised. He was feeling sexually frustrated. I’m not in any way advancing these clinical opinions as excuses for his offending, Your Honour. He became pre-occupied with sexual fantasies. He had a very active sexual fantasy life and in my opinion that, coupled with the drug use and depression, all formed the background to this offending.
A review of the plea hearing indicates that the sentencing judge questioned Mr Cummins in detail about the appellant’s mental state. There is no indication on the face of the transcript or in the reasons for sentencing that his Honour failed to understand or ignored any part of Mr Cummins’ evidence. His Honour did not reject the submission that the appellant was suffering from depressive symptomatology, he simply declined to find that his mental state was severely impaired on the night on which the offences occurred. In making such a finding, his Honour was also entitled to have regard to the context of the offending. In particular, the significant course of premeditation in which the appellant had engaged prior to committing those offences. As the learned judge concluded in his reasons for sentence:
Here, the offending … was deliberate, premeditated, planned, and prepared carefully by you. I reject the submission of your counsel that it was opportunistic. It was calculated offending wherein you implemented a sexual fantasy derived from viewing pornographic material on the internet … The planning for an offence of this nature commenced at least in late January when you purchased the cable ties which were ultimately used … Your modus operandi indicates that you sought to implement a fantasy depicted in the downloaded material. I reach that conclusion beyond a reasonable doubt.
It was this course of premeditated behaviour which was ultimately found to be the conclusive basis for rejecting the appellant’s submission that his mental state was severely compromised at the time offending:
I am not prepared to accept the evidence of Mr Cummins that your mental state that night was severely compromised. You may have been suffering from a depressive symptomatology, but I do not accept that it affected your moral culpability. You were in the thrall of a sexual fantasy that you had accessed on the internet. It had polluted your immature mind. You fortified yourself with alcohol and illicit drugs and perpetrated an evil crime. Your conduct is to be condemned, and not to be excused or explained by any mental state existing at the time. Within the terms of Verdins I do not accept that your moral culpability was reduced.
This conclusion was open to his Honour on the facts of the appellant’s case.
Impaired mental functioning that only forms the ‘background’ to the commission of the relevant offences cannot be treated in accordance with Verdins principles as relevant to the offender’s moral culpability. It can only do so if there is a direct causative link between the two. No such link was open to be found by the sentencing judge on the evidence before him in this case.
Consequently, this ground of appeal must be rejected.
Weight given to relevant factors
The appellant submits by way of grounds 4 and 5 of his Notice of Appeal that the sentencing judge erred in giving too much weight to general deterrence, specific deterrence, punishment, denunciation and community protection, and too little weight to the appellant’s youth, prospects of rehabilitation, level of intellectual functioning, depression and psychological condition, remorse and pleas of guilty.
The respondent submits that the sentencing judge took account of all mitigating circumstances which were put in the appellant’s favour and gave appropriate weight to them. It submits that where offences are very grave and denunciation and deterrence are the principal sentencing considerations, as they were in the appellant’s case, factors which tend to mitigate the seriousness of the offending must be subservient to the formulation of an appropriate sentence.
It is clear from the reasons for sentencing that his Honour gave careful consideration to all relevant matters. His Honour specifically considered: first, the appellant’s youthfulness; secondly, the appellant’s prospects of rehabilitation; thirdly, the appellant’s level of intellectual functioning; fourthly, depression and psychological condition; fifthly, complete remorse; and sixthly, the plea of guilty at the earliest opportunity.
It is also clear that his Honour took into account in the appellant’s favour: first, his level of family support; secondly, his good employment history since leaving school; thirdly, his lack of prior convictions; and fourthly, his co-operation with police once they had apprehended him.
In cases involving young offenders, youth should be a primary consideration for a sentencing court, and will usually require rehabilitation to be given greater importance than general deterrence.[4] However, this is only a general proposition which should not be applied arbitrarily or automatically; each case must turn on its own facts.[5] Indeed, as stated by this Court, youth and rehabilitation :
constitute only some in a number of matters that must be taken into account and … even in the case of a young offender, there are occasions on which they must give way to the achievement of other objectives of the sentencing law.[6]
[4]R v Mills [1998] 4 VR 235, 241 (Batt JA).
[5]R v Bell [1999] VSCA 223, [14] (Batt JA).
[6]DPP v SJK and GAS [2002] VSCA 131, [65].
The case of R v JED[7] indicates that rare cases of rape involving young offenders occasionally arise, which require greater weight to be given to factors other than youth and rehabilitation and require significant sentences of imprisonment to be imposed. In JED, the offender, although he was only fifteen at the time of the offending, received a total effective sentence of thirteen years’ and a non-parole period of eight years’ imprisonment. He had committed a single, albeit a brutal, act of unpremeditated rape in a public place.
[7][2007] VSC 348.
In light of the nature of the appellant’s offending, the sentencing judge was rightly compelled to give considerable weight to general and specific deterrence, punishment, denunciation and community protection. His Honour stated:
The circumstances of the offences here make considerations of general deterrence, retribution and just punishment significant considerations. The Crown accepted and I accept that your relative youth must moderate any sentence.
….
I [also] accept that under Verdins your depressive symptomatology is a factor which may require retribution, and both general and specific deterrence be moderated.
The Court has noted in the past the principle that:
…where offences are very grave and denunciation and deterrence and the protection of the community are the principal sentencing considerations … mitigating aspects of offending must play a lesser role in the formulation of the appropriate sentencing disposition.[8]
[8]R v Kerbatieh [2205] VSCA 194 [119].
The sentencing of youthful offenders is never an easy process. It is rendered even more onerous in cases such as the present where a youthful offender has behaved with the criminal sophistication of an adult, in the planning, preparation and execution of a grave and serious crime. Whilst society’s interest is best served by the rehabilitation of youthful offenders, it rightly expects to be protected from violent and predatory behaviour. As was noted in R v PDJ, in an observation apposite to the present case:
A youth who roams the streets at night, drinking alcohol, planning and participating in serious criminal activities, cannot rely upon his immaturity or lack of years when he is caught. Sadly, with very serious offences such as murder, armed robbery and rape, the age of the offender is reducing to an alarming level. The youthful offender can no longer expect to trade on his or her youth in such cases for the elements of deterrence, condemnation and just punishment are significant matters.[9]
[9]R v PDJ (2002) 7 VR 612, [82]-[83].
It is clear from his Honour’s sentencing remarks, that he struggled with the heavy responsibility of synthesising these competing factors in order to arrive at an appropriate punishment:
In sentencing you I have considered all the matters put on your behalf in a powerful plea by your counsel and the evidence adduced. I have weighted anxiously your relative youth, your remorse, your limited intellectual age and sophistication, your depressive symptomatology and your plea of guilty. I have also considered the impact of the offences on the victim here. At the end of the day, your offending was a heinous course of conduct where your age and personal circumstances must yield to the need for denunciation, retribution, just punishment and general deterrence.
In light of the aggravating factors particular to the appellant’s offending, especially the level of premeditation and pre-planning involved and the calculated and exploitative methodology engaged in when acting upon that premeditation, the sentencing judge was entitled to give great weight to the need for ‘denunciation, retribution, just punishment and general deterrence’, and less weight to the factors tending to mitigate the appellant’s offending behaviour.
Furthermore, the appellant’s offences involved very serious examples of the crime of rape. This Court has always approached cases of premeditated rape involving an invasion of the victim’s home extremely seriously. In R v Brown, Vincent JA observed that:
This Court has on a number of occasions stated that the premeditated nocturnal invasion with criminal intent of a person’s home will always be regarded as extremely serious. Where, as here, that invasion has been effected for the purpose of raping the occupant, it is, in my mind, unthinkable that the imposition of condign punishment would not follow.[10]
[10]DPP v Brown (2004) 10 VR 328, 336 [43].
Having accepted this, and with a due regard for the difficult task facing the sentencing judge, I am of the opinion that his Honour gave insufficient weight to the appellant’s youth and prospects for rehabilitation. In particular, I am cognisant of the fact that the appellant whilst nineteen at the time of the offending was diagnosed as having low intellectual functioning and the maturity level of a sixteen year old. In R v JPD, Vincent J, as he then was, sentenced an offender for a murder committed at the age of fifteen years and eight months. His Honour stated:
Ultimately, I am confronted with a situation in which a violent and unstable young person has committed a truly dreadful crime. The task of incorporating the relevant sentencing considerations into a proper sentence is seldom simple in any case. I have found it to be particularly difficult in yours. Included in the matters which have troubled my thoughts over recent weeks is an appreciation gained from many years of experience in this area of the potential for institutionalisation and the hardening of already present anti-social traits which can be associated with a long period of incarceration being undergone by a young offender. That could be a matter of concern in your case and impact upon your prospects of rehabilitation.
The sentence that I have determined as appropriate is, by reason of your age and immaturity, and in order to maximise your prospects for initial successful reintegration into the community, significantly less than that which would have been imposed upon an older individual. But I have also decided that it must, as a matter of law and justice, nevertheless, be substantial.[11]
[11][2001] VSC 204 [28]-[29].
It is clear from the circumstances of the appellant’s case that his social isolation was not an insignificant factor in the background to his offending. The appellant’s excessive consumption of violent and degrading pornography which gradually conditioned him to make manifest his vivid sexual fantasy life at the expense of the complainant is only one, albeit a powerful, indicia of this isolation. The appellant must receive a substantial sentence, but that sentence must be balanced against the need to minimise, as far as is consistent with applicable sentencing principles and authorities, the hardening and institutionalisation of the appellant during his incarceration. Such institutionalisation creates a significant risk that the appellant, upon being released from prison, will again find himself socially and emotionally isolated, and possibly re-offend.
The appellant will spend almost his entire life between the ages of twenty and thirty behind bars. This is a significant period during which young people make the transition to adulthood, and begin the careers and relationships which form the foundation for the remainder of lives. The effect of the appellant’s incarceration will be to deny him much of the opportunity normally enjoyed to lay such a foundation. That is a loss for which he bears the ultimate responsibility. Upon finishing his custodial sentence, the appellant will need significant support to re-integrate into the community. Fortunately for him, he appears to have such support, most obviously from his family. It is necessary to ensure, as far as possible, that the appellant remains able to take advantage of that opportunity and that his anti-social traits are not irretrievably entrenched.
Therefore, whilst I am not of the opinion that the sentencing judge gave too much weight to aspects of general and specific deterrence, condign punishment and community protection (ground 4), I believe that his Honour erred in failing to give sufficient weight to the appellant’s youth and prospects of rehabilitation (ground 5).
On that ground, the appeal must succeed.
Manifestly excessive sentence
The appellant has submitted that the individual sentences of imprisonment imposed on each count, the total effective sentence and the non-parole period were manifestly excessive (ground 1), that the orders made for cumulation were crushing and disproportionate (ground 2), and that in both cases the sentencing judge failed to give sufficient weight to the principles of totality and proportionality (ground 3).
Insofar as the appellant has argued under grounds 4 and 5 that too much weight was given to certain sentencing principles, and insufficient weight was given to factors peculiar to the appellant going to mitigation of his sentence, his argument under those grounds is in an important sense simply a way of particularising the argument made by way of grounds 1 to 3 of his Notice of Appeal that his sentence was manifestly excessive, crushing and disproportionate. As the Court observed in R v Terrick:
The proposition that too much — or too little — weight was given to a particular sentencing factor is almost always untestable. This is so because quantitative significance is not to be assigned to individual considerations. The question to be addressed when the ground of manifest inadequacy — or, in a prisoner’s appeal, manifest excess — is advanced is whether the sentence arrived at was within the range reasonably open to the sentencing judge in the circumstances, taking proper account of all relevant sentencing considerations (whether aggravating, or mitigating, or both). If the conclusion is that the sentence was outside the available range, then it may be inferred that too much or too little weight was given to one or other consideration. But rarely, if ever, will it be possible — or necessary — for the appeal court to reach a conclusion on that question.[12]
[12][2009] VSCA 220 [5].
The respondent has submitted that the sentence was appropriate and open to the sentencing judge on the facts of the case. It argued both at trial and before this Court that the offences committed by the appellant were ‘at the upper end of seriousness’, fell within the ‘worst ten percent‘ of cases and directed the court’s attention to a significant number of aggravating factors, including premeditation, the fact that the offences were committed against an isolated, vulnerable and targeted victim during a home invasion, the appellant’s failure to wear a condom, the application of restraints, the temporal and spatial gap between the second and third acts of rape and the continuing impact of the appellant’s offences on the victim and her family. The respondent has also submitted that the orders for cumulation were appropriate and necessary to mark the serious criminality involved in each of the offences, and their separate contribution to the overall conduct of the appellant. The respondent submits that the severity of the sentence imposed merely reflects the number and seriousness of the offences committed.
In his sentencing remarks, his Honour adopted, in large part, the Crown’s categorisation of the seriousness of the offences. His Honour also said that the appellant’s counsel ‘did not seek to suggest otherwise.’ That characterisation of the submissions put before the sentencing judge by the appellant’s counsel is not strictly correct. Whilst counsel did not seek to downplay the seriousness of the offences, she did draw attention to the absence of a number of aggravating factors often found in the most serious cases of rape:
I want to turn to, if I might, a little bit about the objective indicia in relation to the offending, and I say this: I do not want to be heard to be diminishing the serious of the offending. I’m not doing that, but I am going to say something about what isn’t part of the offending. Above and beyond the rapes themselves, there is no gratuitous violence. Rape of course is a violent act. But above and beyond that there was no violence at all, particularly no gratuitous violence, no ejaculation. The complainant didn’t know. My client firmly instructs me that there was no ejaculation at all. He did not cause her to perform oral sex, which would have been extremely distressing.
During the plea it was also submitted at length on the appellant’s behalf that he should receive a head sentence which was less than the sentence of eight years imposed in the case of DPP v McCloy.[13] That case concerned an offender sentenced for the crime of rape who was the same age and of a similar background to the appellant. It should be noted that in making that submission it is clear from the transcript that counsel for the appellant did not fully understand the basis on which the sentence in McCoy was imposed, particularly the fact that it was made under the constraint previously applied to Director’s appeals against sentence by reason of the double jeopardy principle.[14]
[13][2006] VSCA 99.
[14]This Court has also, subsequently, expressed disapproval of using single cases as supposed ‘benchmarks’ to set an upper limit on the discretion conferred on the sentencing judge (Hudson v The Queen [2010] VSCA 332 [31]-[33]).
Finally, I observe that when the prosecutor informed the sentencing judge that an appropriate sentencing range for the offender was 60 per cent to 65 per cent more than the sentence in McCloy, the appellant’s counsel stated that she was ‘amazed and shocked’ at the range being suggested. Counsel for the Crown also submitted on the plea that:
It would appear that in the year 2005, 2006, the average custodial sentence for rape is six years and one month, and the 90th percentile is ten years. Now it’s submitted in this case that this case does fall into that category of the worst ten per cent.
Without seeking to be exhaustive, offences that fall into the worst category of the crime of rape, commonly have one or more of the following aggravating features, namely the forceful use of a weapon, overt threats made to the victim, acts of violence associated with the act of penetration resulting in other injuries to the victim, multiple acts of rape by other offenders, conduct extending over a very protracted period, premeditation, gratuitous humiliation of the victim and rape accompanied by home invasion. Other circumstances may also warrant placing the offence in the upper tenth percentile of seriousness.
In this case, whilst some of these aggravating factors were present, many of them were absent, and the appellant's conduct did not fall into that extreme category. Nor was the Crown correct to submit that a total effective sentence 60 per cent to 65 per cent above that imposed in McCoy was appropriate. It is a relief that his Honour clearly rejected this exaggerated suggestion, and chose not to impose individual sentences for the counts of rape that reflected the level of seriousness proposed by the Crown.
I am, having already found that the sentencing judge erred in failing to give sufficient weight to the appellant’s youth and prospects for rehabilitation, also of the opinion that the sentencing judge fell into error in ordering a period of cumulation of eighteen months each to be served on the head sentence imposed for the first act of rape in respect of the second and third counts of rape. The sentencing judge conceded that the offences formed a ‘a single course of conduct.’ In cases involving multiple acts of rape committed in a single course of conduct it is important to bear in mind the following observation of Phillips CJ in R v Devaldez:
The learned trial judge held that the offences ‘were part of a single transaction’ … In my opinion, the commission of counts 3, 4 and 5 [of rape] each made a separate, and not insignificant, contribution to the respondent’s overall criminality and this circumstance ought to be acknowledged by some cumulation of sentence. Each rape was a crime punishable by a maximum of 25 years’ imprisonment.
However, whilst it was necessary to impose some cumulation to recognise the additional criminality attaching to the second, and particularly, the third acts of rape and their effect on the victim in this case, the period of eighteen months decided upon by the sentencing judge in respect of counts 3 and 4 was excessive.
For that reason, the total effective sentence imposed was also manifestly excessive, and not proportionate to the offences committed.
Consequently, grounds 1, 2 and 3 of this appeal must succeed.
The appellant’s current psychological condition
Leave was sought as part of this appeal to adduce evidence concerning the deterioration of the appellant’s psychological condition following imprisonment. A report of Mr Cummins dealing with the appellant’s present mental condition was provided for this purpose.
It is well established that an offender’s ill health, whether it be physical, psychiatric or the result of a disability,[15] is relevant to the sentence imposed upon them in two cases:
…ill health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his state of health or when there is a serious risk of imprisonment having a gravely adverse effect on the offender’s health.[16]
[15]R v Van Boxtel (2005) 11 VR 258, 267.
[16]R v Smith [1987] 44 SASR 587, 589 (King CJ).
The first limb of this test was stated by Callaway JA in R v Van Boxtel, Ormiston and Charles JJA agreeing:
…the test contemplates not that imprisonment will make the offender’s ill health a greater burden but that the offender’s ill-health will make imprisonment a greater burden. The additional burden of imprisonment is then taken into account as a mitigating factor … The weight to be given to such mitigating factors is another matter altogether. In some cases, they are of great consequence; in other cases, they make no difference when all the relevant circumstances are taken into account.[17]
[17](2005) 11 VR 258, 268.
In sentencing the appellant, the learned trial judge noted that the burden of incarceration would weigh more heavily on him by reason of his mental state. His Honour observed:
…I accept the evidence of Mr Cummins that you are likely to be categorised as a vulnerable prisoner in the prison system. You will be younger than the bulk of other prisoners. You also function at around the level of a sixteen year old and are not psychologically sophisticated. Your depression is also a factor which may increase the burden of a sentence of imprisonment on you
I accept that under Verdins your depressive symtomatology is a factor which may require that retribution, and both general and specific deterrence be moderated.
The report of Mr Cummins contains nothing that would indicate that the approach of the learned sentencing judge was erroneous, or that insufficient mitigatory weight was given to the appellant’s mental state. We were informed that the appellant has struggled to access programs whilst in prison that would assist his rehabilitation. Mr Cummins’ report indicates no more than that the appellant has experienced a fairly typical adjustment to the difficulties of incarceration as predicted by the sentencing judge.
This evidence raises no new issues warranting intervention by this Court.
Conclusion
In light of my findings with respect to the appellant’s youth, cumulation, proportionality and manifest excess, the appeal should be allowed and the appellant re-sentenced by this Court. In bringing this appeal, Counsel for the appellant directed the Court’s attention to sentencing statistics for the crime of rape and to a number of cases he argued were applicable to determining the appropriate sentence in this case.
The Court has observed in R v Moses that whilst ‘[t]he principle of consistency in sentencing will generally require that some regard be had to comparable cases… each case must be judged on its own facts.’ [18] In R v Maynard, the Court discussed the danger posed by statistics and inter-case comparison to the proper exercise of the Court’s sentencing discretion in individual cases, especially serious cases:
Statistics do no more than establish minimum and maximum sentences and the average and median sentences imposed over a particular, and necessarily arbitrary period. Indeed, there is a danger that undue reliance upon the average or median sentence imposed during a particular period will distract the sentencing judge from the particular circumstances of the case in hand and has the capacity to distort sentencing in particularly serious cases towards the average or median figure. … By themselves, statistics do not establish a sentencing practice.[19]
[18][2009] VSCA 274 [29].
[19][2009] VSCA 129 [29].
In R v Winch, Ashley JA also urged caution when considering statistics insofar as they relate to appropriate sentencing.[20]
[20]R v Winch [2010] VSCA 141 [68]-[69].
Whilst consistency in sentencing is essential to ensuring the fairness of the sentencing process,[21] each case must still be decided on its own facts, not by generalised analogies with preceding cases. The circumstances and considerations drawn together in the court’s intuitive synthesis are not amenable to such a simplistic approach:
A detailed examination of “like” cases to implicitly suggest that a particular sentence is the correct one or that the sentence should fall within a very narrow band, is not permissible. Sentences imposed in other cases are not precedents which must be applied unless they can be distinguished. Where principles of parity do not apply, they are not to be regarded as some sort of “benchmark” which is determinative of the sentence to be imposed. To attempt to so utilise other cases within a particular category involves the unwarranted assumption that all of the relevant factors which bore upon the imposition of those comparative sentences can be identified and weighted. There may be many reasons why the sentences in those cases should not be viewed by the sentencing judge as an appropriate sentence, or even a guide. Because of the dissimilarity in the offending conduct in other cases and the matters personal to the offenders, it would be an error to directly compare the sentence under challenge with that imposed in other cases.
To undertake and utilise a comparative analysis, whether at first instance or on appeal, in an attempt to identify a sentence in a “like” case that is a fair comparison, is calculated to introduce a level of mathematical precision inimical to the instinctive synthesis. Where the parity principle is not enlivened, recourse to other cases is not undertaken to strike some equality with another particular sentence. Consistency is to be achieved by the application of the appropriate range and not from the application of single instances of “like” cases. The adoption of a sentence selected by an earlier court, even if the case is very similar, would be to sacrifice the proper exercise of judicial discretion in pursuit of consistency of sentencing.
It is no part of the sentencing task, or the assessment of a sentence on appeal, to embark upon that level of analysis of comparable cases. However, there has been an increasing tendency to overlook these limitations. Accordingly one must be wary of attempts to examine a comparable case in “micro detail”, as such an approach will ordinarily be indicative of an intent to use the case as providing something more than a guide to a range.[22]
[21]R v McEachran [2006] VSCA 290 [55].
[22]Hudson v The Queen [2010] VSCA 332 [31]-[33].
In my view, the only failing which brought the sentencing judge into error was his Honour’s failure to give sufficient weight to the appellant’s youth, immaturity and prospects for rehabilitation. His Honour did not err insofar as he assessed the gravity of the offences or any of the remaining factors which he was required to consider as part of his intuitive synthesis. For this reason I would impose the same sentence on each count as was imposed by the sentencing judge, but would direct that nine months of the sentence imposed on count 3 and twelve months of the sentence imposed on count 4 be served be served cumulatively on count 2. I would leave undisturbed the remaining orders of the sentencing judge. This results in a total effective sentence of nine years and nine months’ imprisonment. I would fix a non-parole period of six years and nine months’.
REDLICH JA:
I have had occasion to read in draft the reasons of the Chief Justice, and I agree that the appeal should be allowed and the appellant re-sentenced as her Honour proposes, substantially for the reasons that she has given.
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