Cao v The Queen
[2018] VSCA 98
•9 April 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0138
| TUAN ANH CAO | Applicant |
| v | |
| THE QUEEN | Respondent |
---
| JUDGES: | MAXWELL P, TATE and NIALL JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 9 April 2018 |
| DATE OF JUDGMENT: | 9 April 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 98 |
| JUDGMENT APPEALED FROM: | DPP v Cao (Unreported, County Court of Victoria, Judge Gucciardo, 23 December 2016) |
---
CRIMINAL LAW – Sentence – Appeal – Three charges of rape and charges of aggravated burglary, threat to kill, sexual assault and theft – Sentenced to 10 years’ imprisonment with non-parole period of 6 years and 6 months – Whether sentence manifestly excessive – Whether orders for cumulation excessive – Whether error in orders for cumulation in respect of two charges – Whether family support given too little weight – Leave to appeal refused.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr A L Hands | Luat Tran & Associates |
| For the Crown | Mr M D Phillips | Mr J Cain, Solicitor for Public Prosecutions |
MAXWELL P:
I will invite Niall JA to deliver the first judgment.
NIALL JA:
On 19 October 2017, a judge of appeal refused the applicant’s application for leave to appeal against sentence.
The sentence had been imposed by a judge of the County Court on the applicant’s plea of guilty to one charge of aggravated burglary, one charge of threat to kill, one charge of sexual assault, three charges of rape, and one charge of theft. The applicant was sentenced as follows:
Charge on indictment Offence Maximum penalty Sentence Cumulation 1 Aggravated burglary
[Crimes Act 1958 s 77(1)]25 years’ imprisonment 5 years’ imprisonment 9 months 2 Threat to kill [Crimes Act 1958 s 20] 10 years’ imprisonment 1 year’s imprisonment 2 months 3 Sexual assault [Crimes Act 1958 s 40(1)] 10 years’ imprisonment 2 years’ imprisonment 1 month 4 Rape
[Crimes Act 1958 s 38(1)]25 years’ imprisonment 8 years’ imprisonment 6 months 5 Rape
[Crimes Act 1958 s 38(1)]25 years’ imprisonment 8 years’ imprisonment 6 months 6 Rape
[Crimes Act 1958 s 38(1)]25 years’ imprisonment 8 years’ imprisonment Base 7 Theft
[Crimes Act 1958 s 74(1)]10 years’ imprisonment 3 months’ imprisonment Nil Total effective sentence: 10 years’ imprisonment Non-parole period: 6 years and 6 months’ imprisonment Pre-sentence detention declaration 225 days Section 6AAA Statement 12 years’ imprisonment with a non-parole period of 8 years Other relevant orders Reporting for 15 years pursuant to s 34 of the Sex Offenders Registration Act 2004
Sentenced as a serious sexual offender on charges 5 and 6 pursuant to s 6F of the Sentencing Act 1991.
The applicant has applied under s 315(2) of the Criminal Procedure Act 2009 to have his application determined by a bench of two or more judges of appeal.
In Ayol v The Queen, Weinberg JA said:
I would also note that although this renewed application for leave to appeal is by way of re-hearing, the carefully expressed reasons of a judge of this Court who has refused such leave will ordinarily be given considerable weight. That is not because this is an appeal from [a judge of the Court]’s decision refusing leave. Of course, it is not. It is rather that his Honour’s reasoning needs fully to be taken into account. In the event that no flaw or error in that reasoning can be discerned this Court would be slow to arrive at a different conclusion, and order that leave to appeal be granted.[1]
[1][2014] VSCA 151 [14].
In this case, Santamaria JA gave detailed reasons for refusing the application for leave. I have had careful regard to those reasons.
Examining the matters afresh for myself, I have come to the same conclusion as Santamaria JA. The application for leave to appeal against sentence is not reasonably arguable and it should be refused.
I note that, before us, the applicant made an oral application for correction of an apparent error in the record of orders certified by the sentencing judge. Relevantly, the record of orders noted that the order for cumulation in respect of charge 1 was six months and that the order for cumulation in respect of charge 7 was three months. This is inconsistent with the orders pronounced by the judge in the reasons for sentence which were as set out in the table above. However, given that the total effective sentence and non-parole period is the same in the reasons for sentence and record of orders, the apparent error in the record of orders has no material effect on the outcome of the appeal. Nevertheless, I would make the order sought by the applicant.
Section 104A of the Sentencing Act 1991 permits correction of clerical errors and errors arising from an accidental slip or omission by a sentencing judge. Section 104A(5A) provides that, in determining an application for leave to appeal against a judgment or sentence, the Court of Appeal may direct the amendment of the judgment or sentence if satisfied of the matters referred to in sub-s (1)(a) or (b), whether the application for leave is granted or refused. Having read the transcript of sentence, it is clear that the judge meant to provide that there be nine months’ cumulation in respect of charge 1 (the aggravated burglary) but make the sentence on charge 7 of three months fully concurrent with the base sentence.
Whether there was nine months’ cumulation from charge 1 or a total of nine months’ cumulation arising from both charges 1 and 7 makes no difference to the total effective sentence or the non-parole period. Nor does it make any difference to the disposition of the application for leave to appeal against sentence. Providing for nine months’ cumulation on the aggravated burglary was well open to the sentencing judge and does not reveal any error.
However, in my view, the record should be corrected as I am satisfied that the sentence imposed by the judge was not fully reflected in the terms of the order that was made. There is no room for doubt when regard is had to the pronouncement of sentence as reflected in the transcript. Accordingly, I would direct the amendment of the sentence to reflect the table of sentence above. I note that applicant sought this course and it was not opposed by the respondent.
Circumstances of the offending
Santamaria JA set out in some detail the circumstances of the offending. In order to explain my reasons on the present application, I am able to summarise those matters briefly.
The seven charges to which the applicant pleaded guilty arose out of events on a single morning.
At about 5:00am on the morning of 9 April 2016, the applicant left his home for his daily walk. He walked past the victim’s house. She was unknown to the applicant.
The victim was asleep alone in her bedroom. Her housemates were also present in the house and asleep in their bedrooms. The window of the victim’s bedroom was open and it did not have a flywire. The applicant approached the window and observed the victim asleep in her bed. He entered through the window. This constituted the factual basis for charge 1, aggravated burglary.
As the applicant climbed through the window, the victim stirred. She awoke to find him standing over her. He leaned forward, either lying on or crouching on her. He put his face close to hers and said, ‘Do you have any money?’ When she said that she did not, he asked her if there was any money in the house. She offered to ask her friends. She said that she would take him to an ATM and give him all her money if he left her alone.
Seeing that the victim was naked from the waist up, the applicant began pulling back the doona cover. She pleaded with him, offering him all of her money. He said, ‘Don’t make any sounds or I will slit your throat.’ He also threatened to break her neck and kill her. This constituted the threat to kill which was the subject of charge 2.
The victim tried not to make any noise, but started shaking and crying. The applicant placed his hand over her mouth and told her to stop crying. She told him that crying was a human instinct; he told her not to talk about human instincts.
In relation to the sexual assault (charge 3), the victim repeatedly said ‘no’ to the applicant and held her legs together. He told her that she could make it easy on herself or else he could make her suffer. He grabbed at her breasts with both hands. He then moved one of his hands to her vagina, rubbing it on the outside of her underwear with his fingers. This constituted the act relevant to charge 3.
The applicant then committed three acts of rape: one digital, one oral, and one penile. Charges 5 and 6, which alleged oral and penile rape respectively, were representative counts in that each was representative of two occasions of rape. Thus there were five distinct instances of penetration (of three different kinds) forming part of a pattern of repetitive conduct.
The first act of rape involved digital penetration by the use of two or three of the applicant’s fingers. Subsequently, he forced his penis inside the victim’s mouth and made her perform oral sex for some time. He then inserted his penis into her vagina and had vaginal sex, ejaculating into the victim’s vagina. He did not wear a condom.
The applicant then asked the victim to give him her driver’s licence. She handed him a licence that was not in her name but which she had found. The applicant told her that he had all of her details and that he would find her if she went to police. She said she would not and that she wanted the ordeal to be over.
In the immediate aftermath of the rape, the applicant subjected the victim to the further significant indignity of having to remove incriminating forensic evidence in his presence by urinating and showering in front of him.
After washing herself for a short time, the victim noticed that the applicant had returned to the bedroom. She followed him into the bedroom and saw him removing the bottom-fitted sheets. He told her that she should get the window fixed. He also apologised and said that it was, ‘just something I do’. He gave her a hug and asked her if she forgave him. She did not reply. He instructed her to return to bed and go back to sleep. She complied and lay still in the bed as he climbed out of the window, leant back and pulled the curtains closed. She remained in bed for a minute, shaking. At about 5.30am (that is, about half an hour after the ordeal commenced), she closed the window, ran to the bedroom of one of her housemates, and reported the incident to police. She found a pubic hair of the applicant in her mouth.
Some days after the incident, the applicant delivered a parcel addressed to the name of the person of the driver’s licence. That parcel contained two new bed sheets of the brand that he had taken on the day of the offending. A printed note read, ‘please forgive me. I know how scared and angry you really are and what you must be going through at the moment. Just want you to know how sorry I am for all that happened between us.’
The applicant was subsequently arrested and made partial admissions. He was then charged and remanded in custody.
Sentencing remarks
The sentencing judge’s remarks reveal his conclusion that the offending was very serious and involved a very high degree of criminality and culpability for which the applicant had only taken partial responsibility.
The judge noted that the offending was made worse by the fact that the applicant did not wear a condom and had ejaculated inside the victim. The applicant’s conduct in the immediate aftermath of the rapes were regarded by the judge as constituting further indignities which aggravated the applicant’s criminality. The applicant’s conduct in requiring the victim to urinate and shower in front of him was regarded by the judge as a humiliating scenario undertaken out of the applicant’s concern for himself to remove incriminating evidence and a callous disregard for the victim.
The judge noted that the offending took place in the victim’s bedroom, and went to the heart of the freedom of the individual to be safe in her own home, particularly in her bedroom.
His Honour regarded the delivery of the bed sheets and accompanying note as evidencing a totally misguided and inappropriate understanding of the impact of the applicant’s offending, and of his culpability, devoid of any consideration for the effect on the victim of his presence in her street and near the premises where the offences were committed.
The judge noted the very significant impact on the victim, who was just 19 years of age, and who had read a victim impact statement in court.
The judge took into account the early plea of guilty and that the plea was accompanied by some degree of remorse. The judge accepted that the applicant had expressed remorse in his note to the victim and also to the court, but said the applicant’s main concern appeared to be with his own predicament. In this regard, the judge referred to the applicant’s lack of insight into the offending, as demonstrated by his post-offence conduct and by the fact that he had significantly qualified his admissions in his early interviews with police. In his record of interview, the applicant expressed regret, but continued to deny forcing the victim into oral sex and penetrating her vagina. He relied on her apparent lack of resistance as corroboration for some perceived willingness on her part.
The judge regarded general deterrence as the predominant purpose of the sentence. His Honour also accept that a degree of cumulation was required in recognition of the separate and discrete nature of the offending.
The judge concluded that specific deterrence remained a relevant consideration in sentence on the basis of various matters. These included:
(a) the qualifications to the applicant’s admissions in the record of interview;
(b) his ill-conceived attempts at destroying evidence, including the seizure of bed sheets;
(c) that the applicant made admissions only after the likely penalties were discussed and a month had passed since the offending; and
(d) the evidence of Mr Patrick Newton, a forensic psychologist retained by the applicant, who provided an opinion as to risk of recidivism.
I interpolate to note that, in his report dated 2 December 2016, Mr Newton said that:
While the final evaluation of risk will depend on Mr Cao’s capacity to participate in treatment and his personal circumstances at the time of release, the preliminary indications suggest that Mr Cao’s overall level of risk would best be understood as falling in the Moderate-High Risk range. That is, he is assessed as being at somewhat higher risk than is typical of sex-offenders in general.[2]
[2]Emphasis in original.
In sentencing the applicant, the judge had regard to the personal factors relevant to the applicant. The judge noted that the applicant was born in Vietnam. He was left in his father’s care as his mother and older brother travelled to Australia. The applicant’s father had a second family with another partner, and during this period the applicant had little stability and care.
The applicant moved to Australia at the age of 12 to live with his mother, who had five children with a new partner. The applicant had a good relationship with his mother.
The applicant completed Year 12 in Melbourne. He dropped out of aerospace technology studies at RMIT University after six months and worked in a number of unskilled positions. From 2005 until the time of his arrest, he had been employed with Monash Health in food preparation.
At the time of the offending, the applicant was 30 and lived with his partner and two young children aged 6 and 2. He had been in a relationship with his partner since 2005. The report prepared by Mr Newton said that the applicant had reported that the relationship with his partner was happy and stable, made difficult only by financial stress.
Finally, the judge noted that the applicant had a history of drug and alcohol abuse. He had smoked cannabis and used ecstasy, amphetamines and ice at different times. According to Mr Newton’s report, drug use gave the applicant a sense of euphoria, elevated his mood, resulted in behavioural hyperactivity, and boosted his libido. The applicant also engaged in binge drinking when using drugs, typically on a monthly basis. He told Mr Newton that, on the evening before the offending, he had been drinking heavily and had consumed ice, which left him feeling excited and unable to sleep.
Proposed grounds of appeal
The applicant has proposed the following four grounds of appeal:
1.The sentence was manifestly excessive in all the circumstances in that the sentence was outside the range of sentences for such offending and in particular, the head sentence was manifestly excessive, the cumulation was manifestly excessive and the minimum term was manifestly excessive.
2.The learned trial judge was in error in aggregating [his] sentence on Counts 3 and 4 as a ‘serious sexual offender.’
3.The learned trial judge failed to take into account the totality and proportionality principles in sentencing [him].
4.The learned sentencing judge gave no weight to the level of family and social support in assessing [his] prospects of rehabilitation.
Grounds 1 and 3: manifest excess and totality
It is convenient to address grounds 1 and 3 together. Ground 1 alleges that the sentence was manifestly excessive in various respects, namely that each of the head sentence, the cumulation and the minimum term are manifestly excessive. In his written case, the applicant submitted that the sentencing judge gave insufficient weight to his plea of guilty, his genuine remorse, his lack of prior convictions, and his good prospects of rehabilitation.
Ground 3 alleges that the sentencing judge failed to take into account the principles of totality and proportionality.
Manifest excess
In Clarkson v The Queen, five members of this Court said:
the ground of manifest excess will only succeed if it can be shown that the sentence was ‘wholly outside the range of sentencing options available’ to the sentencing judge. That is, it must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he or she did, if proper weight had been given to all the relevant circumstances of the offending and of the offender. This is a stringent requirement, difficult to satisfy. It reflects the oft-repeated policy that sentencing is for judges and magistrates at first instance. Sentencing is not the task of appellate courts, except where clear error is shown.[3]
[3](2011) 32 VR 361, 384 [89].
The ground of manifest excess is revealed by the outcome of the sentencing process and where no specific error can be identified from the reasons for sentence. It is necessary for the applicant to demonstrate that, by reason of the magnitude of the sentence, either in the total effective sentence or by reference to individual sentences, something must obviously have gone wrong in the exercise of the sentencing discretion. The excess must be ‘obvious, plain, apparent, easily perceived or understood and unmistakeable. It must be so far outside the range of a reasonable discretionary judgment as to itself bespeak error.’[4]
[4]Hanks v The Queen [2011] VSCA 7 [22] (Bongiorno JA, with whom Redlich JA agreed).
In support of the applicant’s contention that the sentence was manifestly excessive, it was submitted that the ‘head sentence’ was manifestly excessive ‘when one considers that this was a single episode of rape by a single rapist.’ In the course of oral argument before us, counsel for the applicant submitted that the individual sentences of eight years on each of the charges of rape was manifestly excessive. In this regard, he relied on statistics from the June 2015 sentencing snapshot to the effect that the median sentence for the charge of rape in respect of the period 2009-10 to 2013-14 was five years.
In my view, the median sentence imposed for the charge of rape in respect of that time period is of little assistance in discerning the appropriateness of the relevant sentences in this case. It provides little insight into how the relevant factors should come together to arrive at a just and appropriate sentence having regard to all of the particular factors that pertain to the offending and the offender.
I return to the submission, which was advanced further in oral argument, that this involved a ‘single episode of rape by a single rapist’. In my view, the description of the offending as a ‘single episode of rape’ is inaccurate and inappropriately seeks to diminish the gravity of the offending. The conduct of the applicant may have been part of a single protracted episode of offending but the three rape offences in charges 4, 5 and 6 were nevertheless distinct incidents requiring separate punishment. Furthermore, as the sentencing judge remarked, charges 5 and 6 were both representative charges which each represented two incidents of rape. Together the charges reflected five distinct instances of penetration and three different kinds of penetration forming part of a pattern of repetitive conduct.
Further, to describe the offending as a single episode of rape by a single rapist does not reflect the indictment and is of no utility in calibrating the seriousness of the applicant’s offending. The fact that the applicant was alone was not a mitigating factor and to compare the offending to that committed by multiple offenders does not provide a relevant, useful point of reference. Although the offending took place over a relatively short time frame, that, as the sentencing judge remarked (and I agree) is not to the point in assessing its seriousness. It was certainly a substantial period of time from the perspective of the victim.
The offending took place in the victim’s bedroom which the applicant had entered by committing an aggravated burglary. The offending was deplorable and was understandably terrifying and deeply traumatic for the victim. The multiple acts of penetration were each very serious and compounded the criminality involved.
In my view, a sentence of 8 years for each of the rape charges was by no means wholly outside the range of sentences available to the judge. In this respect, I note that authority in this Court (cited by Santamaria JA in his reasons for refusing leave) is to the effect that the various forms of rape are not to be distinguished and that digital rape, as an offence, cannot be treated as a less serious offence than penile rape.[5]
[5]R v Brown (2002) 5 VR 463, 478 [57] (Chernov JA, with whom Eames JA and O’Bryan AJA agreed).
Moreover, the first digital rape in this case was particularly confronting. It occurred in the context of threats and coercion made by the applicant in the face of resistance by the victim. It set the scene for the two subsequent rapes.
I would echo Santamaria JA’s remarks that the objective gravity of the offending was high. There were five separate acts of rape; the conduct was repetitive and prolonged; the applicant exposed the victim to a risk of pregnancy; and he threatened and further humiliated her after the commission of the rapes. It is worth emphasising that the applicant took steps to remove forensic evidence. This, in itself, constitutes a particularly egregious and humiliating aspect of the offending.
The respondent submitted in oral argument that the sentence was not outside the range, having regard to the maximum sentence of 25 years for the offence of rape and given that the applicant acknowledged on the plea that this was a serious example of the offending.
Even if, looked at objectively, there were reasons to differentiate the sentence imposed on the three charges of rape, the base sentence on charge 6 was not wholly outside the range and the other rapes called for a degree of cumulation. Given the relatively modest degree of cumulation on charges 4 and 5 of six months respectively, any adjustment on the sentence on those charges would not lead to any different total effective sentence and would not, in my opinion, warrant a grant of leave to appeal.
Totality
The applicant also submitted that the sentencing judge failed to give proper account to the principles of proportionality and totality. Given that there were seven charges, two of which were representative, and the offending took place over about 30 minutes, the question of cumulation and totality were important matters for the sentencing judge to deal with at arriving at a just sentence. In my view, there was no error in the sentencing judge’s approach or in the result he arrived at.
The totality principle imposes a final duty on the sentencing judge to ensure that the totality of consecutive sentences is not excessive.[6] The principle requires the sentencing judge to stand back and assess not just the individual sentences but also to review the aggregate sentence and consider whether the aggregate properly reflects the degree of criminality involved and is ‘just and appropriate’[7] and ‘not excessive’.[8] It was necessary through a process of partial cumulation and concurrency to arrive at a total effective sentence to give effect to the relevant sentencing principles.[9]
[6]Rouge v The Queen [2013] VSCA 160 [20]. See also Azzopardi v The Queen (2011) 35 VR 43, 61 [61] (Redlich JA with whom Coghlan AJA and Macaulay AJA agreed).
[7]D A Thomas, Principles of Sentencing (Heinemann, 2nd ed, 1979) 56–7, quoted in Mill v The Queen (1988) 166 CLR 59, 62–3 (‘Mill’).
[8]D A Thomas, Principles of Sentencing (Heinemann, 2nd ed, 1979) 57, quoted in R vPiacentino (2007) 15 VR 501, 508 [32] (Eames JA with whom Buchanan JA and Vincent JA agreed).
[9]Mill (1988) 166 CLR 59, 63.
In Nguyen v The Queen, Gageler, Nettle and Gordon JJ said:
Ultimately the object of the sentencing exercise is to impose individual sentences that, so far as possible, accurately reflect the gravity of each offence while at the same time rendering a total effective sentence which, so far as possible, accurately reflects the totality of criminality comprised in the totality of offences. That is an exercise which involves a significant measure of discretionary moderation and accumulation of individual sentences according to the particular circumstances of each case. Up to a point, therefore, it is something about which sentencing judges might take different views of which neither could be said to be wrong. Generally speaking, however, the imposition of less severe individual sentences may call for a greater degree of accumulation in order to reflect total criminality whereas more severe individual sentences may necessitate a greater degree of concurrency.[10]
[10](2016) 256 CLR 656, 677 [64] (citations omitted).
The application of that principle in the present case had to occur in the context where, by reason of the sentence imposed on charges 3 and 4 the applicant was a serious sexual offender and subject to s 6E of the Sentencing Act which required full cumulation unless the sentencing judge otherwise directed. Although s 6E did not remove the principle of totality entirely from the equation, it was necessary for the judge to have regard to the policy underpinning its enactment.[11]
[11]R H McL v The Queen (2000) 203 CLR 452, 476–7 [76]; Matheas v The Queen [2017] VSCA 330 [46] (Tate JA, with whom Maxwell P and Coghlan JA agreed).
In my view, it is clearly evident from the structure of the overall sentence that the sentencing judge had regard to the principle of totality and sought to arrive at a total effective sentence that reflected the overall criminality having due regard to the factors in mitigation of sentence. Moreover, I am unable to discern any error in the result his Honour arrived at in the exercise of this discretionary judgement.
The orders for cumulation on charges 4 and 5 were relatively modest and not such as to give rise to any appealable error. So too was the cumulation of nine months for the charge of aggravated burglary. The entry into the bedroom whilst the occupant is sleeping was a serious violation of the safety and security of the home. This was a confrontational aggravated burglary in which the applicant entered the bedroom knowing that the occupant was sleeping and entitled to the safety and security of her home. It involved a separate act of criminality requiring punishment but the impact on the overall sentence was moderated to a significant degree by the relatively small degree of cumulation.
The total effective sentence of 10 years’ imprisonment was a significant one. However, having regard to the objective seriousness of the offending, and the need for both general and (to a lesser extent) specific deterrence, the sentence was not wholly outside the range and did not transgress the principle of totality.
It follows that I would refuse leave on grounds 1 and 3.
Ground 2: aggregation
The applicant submitted that the sentencing judge erred in imposing cumulative sentences on charges 3 and 4 pursuant to s 6E of the Sentencing Act. Section 6E requires that every term of imprisonment imposed by a court on a serious offender for a relevant offence must, unless otherwise directed by the court, be served cumulatively on any uncompleted sentence.
As the reasons for judgment of Santamaria JA explain, the judge did not impose fully cumulative sentences and s 6E did not have that effect. Although the applicant fell to be sentenced as a serious sexual offender once he was sentenced to a term of imprisonment on charges 3 and 4, the judge’s order for cumulation on charge 5 was six months and the applicant was spared the full force of s 6E because the judge ‘otherwise directed’.
Although initially the judge had expressed the erroneous view that the applicant was a serious sexual offender by reason of the sentences on charges 1 and 2 (which were not sex offences and therefore could not bring the offender within the definition), this was quickly corrected and the applicant was sentenced on the correct basis, namely that he was a serious sexual offender by reason of his sentences on charges 3 and 4. In my view, there was no specific error on the part of the sentencing judge and ground 2 is not reasonably arguable.
Ground 4: family support
Finally, in the applicant’s written submissions, it was submitted that the sentencing judge gave no weight to the applicant’s level of family and social support in assessing his prospects of rehabilitation. This is the subject of ground 4, which was not developed further in oral argument.
The judge was not obliged to refer to every piece of evidence or submission. In any event, it may be doubted that the level of family and social support was itself a relevant consideration rather than being evidence going to the prospects of rehabilitation and risk of further offending. Plainly, the judge took into account as a relevant consideration (as he was bound to do) the applicant’s prospects of rehabilitation and risk of future offending. However, it is not necessary to decide the ground on that basis.
That is because, as Santamaria JA correctly, in my view, observed, the judge took into account a large number of reference letters which highlighted the applicant’s prior good character, remorse and future rehabilitative prospects. There is no basis for the conclusion that the judge gave no weight to this material in his assessment of the applicant’s prospects of rehabilitation.
It follows that ground 4 is not reasonably arguable.
Given that none of the grounds of appeal are reasonably arguable, in my view, leave to appeal against sentence should be refused.
MAXWELL P:
For the reasons which Niall JA has given, I too would refuse leave to appeal. I wish only to add the following brief matters by way of emphasis.
His Honour has concluded - and I respectfully agree - that the application for leave to appeal is not reasonably arguable. It is important to emphasise the significance of that conclusion. It means that twice now this Court — first the single judge and now this bench — has concluded that there is no reasonable basis for arguing error in this sentence.
It should be emphasised, for the assistance of practitioners, that the Court meant what it said in Clarkson v The Queen,[12] namely, that manifest excess is ‘a stringent requirement, difficult to satisfy’. This Court does not intervene on this ground unless it is shown that the sentence was not reasonably open to the judge. Put another way, the sentence must be shown to fall outside the range within which reasonable minds can differ.[13]
[12](2011) 32 VR 361, 384 [89].
[13]R v McNeil–Brown (2008) 20 VR 677, 680–1 [9]–[10].
In this case we have the additional circumstance that, after the single judge refused leave, the applicant elected to renew his application before a bench of three.
The repeated statements of this Court about the weight to be given to the reasons of the single judge are intended to be taken seriously. Unless the applicant on renewal can point to something which has been misunderstood or misapprehended by the leave judge, the likelihood of the renewal bench coming to a different conclusion is obviously low.[14] Those considering whether or not an election should be made should consider very carefully whether there is any real prospect of persuading a different bench to come to a different view.
[14]Sadrani v The Queen [2015] VSCA 202 [7]–[8].
Finally, as was pointed out in argument, defence counsel on the plea (who did not appear on this application) made some very significant concessions about how serious this offending was, as follows:
I want to make it abundantly clear that Mr Cao acknowledges that this offending is extremely serious. It’s acknowledged that it’s had a profound and devastating effect on [the victim] and it’s offending that unsurprisingly shocks and upsets the community.
And further:
There’s no doubt that Mr Cao’s actions that morning, eight months ago were callous, depraved and disturbing. There’s no doubt about that.
And finally:
It’s trite to say that rape and aggravated burglary are serious offences. Together - each of them is one of the most serious offences known to the law and it cannot be gainsaid that the offending on this occasion was serious, as I’ve been at pains to emphasise in this plea. But my job, of course, is to address Your Honour on just how serious it is, where it falls on the spectrum of criminality. In my submission it clearly falls at the upper end. There can be no contrary submission made. But my submission that is falls short of the worst category for offending for the crime of rape and in the cases that’s often referred to as the worst ten per cent.
Given those concessions — which, in my respectful opinion, were quite properly made — it is not clear how it was ever thought that it was reasonably arguable that these sentences were outside the range. I would refuse leave to appeal.
TATE JA:
Yes, I agree that the application for leave to appeal against sentence should be refused for the reasons Niall JA gave.
MAXWELL P:
The order of the Court is application for leave to appeal is refused.
11
14
0