BS v The Queen
[2013] VSCA 108
•9 May 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2012 0243
| BS | Appellant |
| V | |
| THE QUEEN | Respondent |
---
| JUDGES | ASHLEY, REDLICH and PRIEST JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 9 May 2013 |
| DATE OF JUDGMENT | 9 May 2013 |
| MEDIUM NEUTRAL CITATION | [2013] VSCA 108 |
| JUDGMENT APPEALED FROM | R v BS (Unreported, County Court of Victoria, |
---
CRIMINAL LAW – Sentence – three charges of rape – guilty plea – Total effective sentence of six years and six months’ imprisonment – non-parole period of five years – whether non-parole period manifestly excessive – No explanation given, or obvious, why proportionately high non-parole period fixed – Serious offending and high moral culpability, but matters going in mitigation undervalued – Appeal allowed – Non-parole period of four years and three months’ imprisonment fixed.
---
| Appearances: | Counsel | Solicitors |
| For the Appellant | P. Doyle | Revill & Papa |
| For the Crown | B. Kissane | Office of Public Prosecutions |
ASHLEY JA:
BS appeals by leave against sentence imposed in the County Court on 2 October 2012 when, having pleaded guilty to three charges of rape, he was sentenced to five years and six months’ imprisonment on Charge 1 and to five years’ imprisonment on each of Charges 2 and 3, this yielding, with some cumulation, a total effective sentence of six years and six months’ imprisonment, the judge then imposing a non-parole period of five years’ imprisonment.
Ground of appeal
There is a single ground of appeal:
The non-parole period of five years is manifestly excessive having particular regard to
(a) good prospects of rehabilitation;
(b) absence of prior convictions;
(c) the utilitarian value of the plea;
(d) onerous nature of incarceration.Circumstances
The sentencing judge described the circumstances of the offending, consistently with the Crown summary at the plea hearing, this way:
In the early morning of 25 December 2005 you went to Crown Casino with a friend S.[1] There you met a young woman whom I shall refer to as ‘J’ for privacy reasons. It was her birthday the day before and she had gone to the Casino with a friend to celebrate that occasion and Christmas. She had moved from interstate a little over a week before and was not familiar with Melbourne suburbs. She danced, drank and was enjoying herself.
[1]The judge referred to the co-offender by name. It is not necessary to do so in these Reasons.
During the course of the night she met you and S and after being separated from her friend, S offered to drive her home which offer she accepted. S drove, with you in the passenger seat and J in the back. You drove away from the city to Campbellfield.
She had become apprehensive due to not understanding the language the two of you had been speaking and not knowing where she was. She was refused a request to leave the car or to drive home. And her fear had increased because when she attempted to leave the car, the driver had accelerated and the doors were locked. When you got to an industrial estate and stopped the car, J fled and ran off.
S chased her and when he caught her she struck him, out of fear. He, in turn, struck her hard to the head, pushed her to the ground, held her by the throat and threatened to kill her. You were in the vicinity and it is probable you got behind the wheel of the car and indeed moved it towards them but this is a finding which is of very minor importance and does not aggravate an already very serious offence.
In any event, it must have been clear to you she was distressed and upon S bringing her back to the car he proceeded to brutally rape her while you got out of the car.
The prosecution’s case does not allege you were complicit in this offending and I do not sentence you for S’s criminal behaviour as an accessory.
You returned to the car. As the complainant was dressing you told her not to do so and then you and S swapped places. When she was told to take all her clothes off she complained that she didn’t want to but she complied after insistence. S got out. You raped J vaginally without wearing a condom, then penetrated her anally. This caused a lot of pain. You penetrated her repeatedly, causing more pain. To avoid the pain she suggested oral sex and you then penetrated her orally before again penetrating her vagina.
The complainant did not consent to any of this conduct and you were well aware that she was not or might not be consenting. You had made no effort to ascertain her consent or otherwise and I have no doubt your awareness of this was clear.
After you finished S told J to get into the front seat. You were in the back and he then dropped you off at your home. Thereafter, he committed further rapes upon J which are not the subject of any charge against you.
She rang a friend who immediately drove to pick her up and after briefly going home, he drove her to the police station where she reported what had occurred.
Later that morning she was examined by a doctor. She had abrasions and bruises to her face and head, her wrist, back and hips. These injuries probably occurred when assaulted by S.
His Honour described the effects of the offending by the appellant and S this way:
The victim here was an apparently happy, trusting and gregarious young woman. She was a vulnerable target which (sic) was not at all deserving of the fate which you inflicted upon her. She was celibate by choice at that time and entitled to enjoy her birthday and Christmas. You robbed her of those days of joy and celebration, not just that year but probably for may years to come.
Her victim impact statement which she read out to the court was a dignified and civil account of her anguish at what you did to her and speaks highly of her integrity and dignity. It was a moving document. The impact upon her is significant and wide ranging, from damage to her relationships to educational achievement to loss of future hopes.
She suffers from post-traumatic stress disorder and the future holds many challenges. It is to be hoped that the courage she had shown in these years will sustain her effort at healing her life.
The judge assessed the appellant’s role as follows:
In my view, irrespective of how the rapes came about, and accepting that the Crown does not allege an agreement, at least on your part with S, an agreement which it says is not able to be adequately demonstrated, nevertheless it is clear that this was an opportunistic and not spontaneous event. The distance travelled and the surrounding circumstances of how you came to be at the place of the crime bespeak of premeditation once J’s vulnerability was clear in your mind.
I consider that S was the prime mover in this enterprise but you were a willing participant on this night on which you had earlier gone to church for Christmas Eve.
Your moral culpability is high. Your violation was deliberate, sustained, brutal and degrading. You showed contempt for her integrity and worth as a person.
…
It is accepted by the Crown that when S says that it was your idea to take J to Campbellfield and rape her, he is not reliable. However, the circumstances of the offending makes irrelevant whether such an idea was discussed or not. It was understood by you what S was to do and did by the time the victim ran from the car and he brought her back by force, whether you were seated by this stage in the driver’s seat and whether or not you moved the car towards them.
The offending was very old by the time the appellant was first interviewed and later still by the time that he eventually pleaded guilty and was sentenced. But for reasons which the judge explained, the validity of which is not challenged, his Honour considered that the delay per se did not have anything more than minor mitigatory effect. There, his Honour must have been addressing the significance of the matter having been a sword suspended over the appellant’s head for so long a period.
The appellant was able to call a considerable number of matters in aid in mitigation of sentence. They included:
(1) Absence of prior or subsequent convictions.[2]
(2)The fact that the appellant was 29 at the time of offending and 36 at time of sentence. In the interim, he had married, raised a family and been in work. The delay between time of offending and time of sentence, in the circumstances, bore upon the appellant’s prospects of rehabilitation.
3.The plea of guilty, late made though it was.
4.The judge’s acceptance that hearing the complainant speak in court had brought the appellant, a practising Christian, to a realisation of his wrongdoing.
5.The fact that the appellant’s incarceration would be more onerous than usual because of the appellant’s limited English-speaking ability, and his culture. There was a potential for isolation.
6.The judge’s conclusion that he was not satisfied that the appellant in fact posed a risk to the sexual safety of the community – this apparently, though not explicitly, being founded on the opinion of a consulting forensic psychologist.
[2]Save for a subsequent driving offence which the judge treated as being of no consequence.
Submissions to this Court
Counsel for the appellant submitted that, whilst there is no ‘correct’ ratio between head sentence and non-parole period, nonetheless
the minimum sentence cannot be fixed so close to the head sentence, that it may fail to give effect to the prisoner’s prospects for rehabilitation and so mitigate punishment. The prospect of early release also serves as an incentive to the prisoner to behave within the prison setting and to pursue rehabilitative programmes.[3]
[3]Kumova v The Queen [2012] VSCA 212, [28] (Redlich and Osborn JJA).
Counsel referred also to this statement:
As a matter of principle, the determination of a non-parole period requires discrete consideration of the factors which bear upon whether the confinement of the offender should be mitigated in favour of his or her rehabilitation.[4]
[4]The Queen v Detenamo [2007] VSCA 160, [27] (Redlich JA).
He argued that the matters to which the judge referred as going in mitigation, and also that the appellant’s difficult background - which involved his family fleeing from Iraq as members of a Christian minority, and then spending time in Turkey before migrating to Australia in 2003 - must have yielded a much shorter non-parole period than that fixed by the judge.
Counsel for the Crown submitted that the non-parole sentence, like the head sentence, must reflect the objective gravity of the offending as well as matters put in mitigation.[5] This was a serious case of offending. The judge had identified all matters in mitigation, and there was no reason to think that they were not reflected in the non-parole period which his Honour fixed. It could not be said that it was plain, apparent or obvious that the non-parole period was manifestly excessive.
[5]He cited Kumova v The Queen [2012] VSCA 212, [27] (Redlich and Osborn JJA).
Resolution
There have been repeated judicial pronouncements respecting the non-parole period generally, and the conceptions of ‘a usual’ and ‘shorter than usual’ non-parole period, in recent years. Considerations emerging from those pronouncements were gathered together by Nettle JA, and very fully analysed by Redlich and Osborn JJA, in Kumova v The Queen.[6] It would be unprofitable to recapitulate the relevant learning. I have considered this appeal consonantly with what was said, particularly, in Kumova.
[6]Ibid, [5]–[6], [9]–[15] (Nettle JA) [26]–[35] (Redlich and Osborn JJA)
The appellant’s submission, at base, was that, notwithstanding the judge’s identification of the relevant considerations, the resulting non-parole period showed that their distillation involved an exercise of the sentencing discretion beyond the bounds of what was reasonable.
I agree. The offending was undoubtedly very bad. The judge identified why that was so. But against that there had to be weighed a number of significant mitigatory circumstances. Chief amongst them, in my opinion, was the fact that the appellant had not offended before, and did not offend after, the rapes committed in December 2005. Before the offending, he had been more than two years in Australia, having migrated as a refugee. In the nearly seven years after the offending, up to time of sentence, he had not only not re-offended, he had made good use of his life.
The judge did not say why he had fixed such a high non-parole period, although he might have been expected to do so. There was nothing, either, said at the plea hearing which would explain it. Nor again was it a case in which there was an obvious reason for setting a proportionately high non-parole period.
It is not necessary to identify why the judge erred – if one is convinced that the non-parole period was manifestly excessive. But there may be an explanation in things which his Honour said about circumstances of mitigation.
His Honour was ‘not persuaded’ that the appellant had ‘demonstrated that [he] was reformed’. On the other hand, he accepted that the appellant felt regret and shame for the impact on his family, and for having had sexual activity with the victim. More importantly, his Honour’s conclusion that the evidence suggested that the appellant was ‘capable of being a productive citizen’, and his assessments that the appellant’s ‘prospects of rehabilitation may be reasonably good’, and that ‘the intervening years may well have given [the appellant] a basis for reclamation and rehabilitation with the support of [his] family’ appear to me to have very significantly undervalued critical matters – particularly, prospects of rehabilitation – which went in mitigation. In my opinion, his Honour did not set a non-parole
period which put in the balance not only the gravity of the offending, but also the true impact of matters going in mitigation.
I would allow the appeal and set aside the non-parole period which the judge fixed. In lieu thereof, I would fix a non-parole period of four years and three months imprisonment.
REDLICH JA:
These rapes were of a very serious order. Having regard to the objective gravity of the offending, the high moral culpability of the appellant and the sentencing judge’s findings as to the limited utilitarian benefit of the plea and level of remorse, the sentences imposed were lenient. However the appeal was not concerned with the head sentences but with the non‑parole period. Although the non‑parole period must always reflect the objective gravity of the offence, it is not to be examined in isolation. The appellant cannot be denied the benefit of the sentencing judge’s view of the degree of seriousness of the offending as reflected in the total effective sentence. The complaint however is that the ratio between the non‑parole period and the total effective sentence revealed error as it is unusually high.
The joint reasons in Kumova state that a non‑parole period which falls outside the range of non‑parole periods usually imposed may attract further scrutiny. As the learned presiding judge has said, the sentencing judge provided no explanation either during the plea in mitigation or in his sentencing remarks for the unusually high proportion of the head sentence which was fixed as the non‑parole. Some reasons should have been provided for that non‑parole period, particularly in circumstances where the appellant had, through the effluxion of time, demonstrated a very positive prospect of rehabilitation.
For the reasons given by the presiding judge, I agree that the sentencing judge erred in fixing the minimum term. I would fix the non‑parole period proposed by the presiding judge.
PRIEST JA:
I agree with the reasons of the learned presiding judge.
‑ ‑ ‑
2