Carl Guirguis v The Queen

[2020] VSCA 48

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2019 0135

CARL GUIRGUIS	Applicant
v
THE QUEEN	Respondent

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JUDGES:	BEACH and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 March 2020
DATE OF JUDGMENT:	13 March 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 48
JUDGMENT APPEALED FROM:	DPP v Guirguis (Unreported, County Court of Victoria, Judge Allen, 17 December 2018)

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CRIMINAL LAW – Appeal – Sentence – Sexual assault – Making threat to kill – Guilty plea – Sentence of 23 months’ imprisonment combined with 3 year Community Correction Order with conditions – Whether sentence manifestly excessive – Late plea – Relevant subsequent offending against same victim – Offending degrading and humiliating – No error of principle on part of sentencing judge – Sentence within range – Application for leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr C K Wareham	Valos Black and Associates
For the Crown	Mr C B Boyce QC	Ms A Hogan, Solicitor for Public Prosecutions

BEACH JA
WEINBERG JA:

1. The applicant pleaded guilty, on 26 October 2018, to one charge of sexual assault, and one charge of making a threat to kill.  On 17 December 2018, he was sentenced to a combination sentence, as follows:

Charge on Indictment	Offence	Maximum Penalty	Sentence	Cumulation
1.	Sexual assault [s 40 — Crimes Act 1958]	10 years	1 year and 8 months’ imprisonment	Base
2.	Make threat to kill [s 20 — Crimes Act 1958 ]	10 years	9 months’ imprisonment	3 months
Total effective sentence:		23 months’ imprisonment in combination with a 3 year Community Correction Order
Non-parole period:		—
Pre-sentence detention:		648 days
6AAA statement:		4 years’ imprisonment with a non-parole period of 3 years

1. The applicant completed the term of 23 months’ imprisonment in February 2019.  Nonetheless, he now seeks leave to appeal on the following ground:

In all the circumstances, the sentence of 23 months’ imprisonment followed by a three-year Community Correction Order with conditions is manifestly excessive.

Circumstances surrounding the commission of the offences

1. In about 2005, the applicant met ‘BH’, the victim of each of the offences charged.  A relationship developed between them, which lasted some 11 years.  They had two sons.  The relationship began to break down towards the end of 2014, and by mid-2016, it was over.

1. In January 2016, BH was at home with the applicant, their two sons, and two friends.  The elder son was then aged six, and the younger son was aged four.  After the boys went to sleep, BH spent some time in the backyard with her two friends.  At one stage, one friend, ‘RS’, went inside the house.  She heard the applicant calling out to BH.  She told him that BH was still outside.  He told RS to ‘tell that cunt to come in here’.

1. RS then told BH that the applicant wanted her to go inside.  He also sent BH a text message, telling her to come into the bedroom.  BH thought this was odd, as they had not been speaking to each other as a result of the applicant having yelled at her, and called her names.

1. BH entered the bedroom.  The applicant was lying on the bed.  He removed his penis from his pants and said ‘suck it you big mouth slut, this is what you get for being a big mouthed cunt and telling everyone our problems’.

1. BH was frightened.  She was scared of what the applicant might do.  She therefore did as he said.  She knelt down in front of him, and he put his penis up against her mouth.  As he pushed his penis against her lips, the applicant told her that he would organise for a friend of his to have a ‘three way’ with himself and BH.  He said that he would film it, and put it on the internet as a consequence of BH being a ‘big mouthed slut’.  The actual sexual assault lasted a few minutes, and gave rise to charge 1.

1. BH became distressed.  The applicant told her to ‘fuck off back outside, you slut’.  She left the bedroom and went back outside to her friends.  She appeared to be shaking and was as ‘white as a ghost’.  She told them to ‘leave it’.

1. After RS left, BH told her other friend, ‘CM’, what had occurred.  The applicant continued to send BH text messages.  He told her that she had better not have told CM what had occurred.  BH was very fearful of that threat, and CM offered to stay with her.  BH and CM spent the night talking in the kitchen.

1. Some months later, on 30 May 2016, BH and the applicant had an argument.  The applicant called her various names.  He told her that if she ever left, and took the boys, he would ‘slit her throat’.  This formed the basis of charge 2, making a threat to kill.  Pointing towards the boys who were asleep in their bedroom, he said he would ‘take them out too’, an uncharged act.

1. On 1 June 2016, an interim intervention order was granted in favour of BH and the two boys.  On 16 May 2017, a final intervention order was made for an indefinite period.

1. The applicant was arrested on 9 March 2017.  He was in custody from that date until his release in February 2019.

1. The applicant had a criminal record.  It related primarily to low-level drug offences.  He was previously sentenced, through various Magistrate’s Court appearances, to an adjourned undertaking, fines, and a wholly suspended sentence.  Plainly, these convictions were of little relevance, so far as the present matters were concerned.

1. More importantly, on 25 January 2017, the applicant was sentenced at the Magistrate’s Court to 91 days’ imprisonment in combination with an 18 month Community Correction Order (‘CCO’).  This was for other offending against BH that occurred on 30 May 2016, that being, of course, the same date on which the offending giving rise to charge 2 in the present matter took place.  It seems that the offending for which the applicant was sentenced on 25 January was similarly humiliating and degrading to that in the present case.

The course of the plea

1. The plea hearing commenced on 1 November 2018, and continued on 17 December 2018, with further plea submissions.

1. A Victim Impact Statement was presented to the Court.  BH stated that the sexual assault and threat to kill had had a significant impact upon her.  She did not feel safe in her own home, and in the community.  She noted, in particular, that the applicant’s violence towards her had also had an impact upon their sons.  She said that she lived in constant fear and anxiety, so much so that she felt that there were times where she couldn’t breathe, became weak, and collapsed.  She was afraid to leave the house, concerned about being seen by the applicant or someone who knew him.  She struggled with relationships of any kind, and had severe trust issues.  She said that she lived in fear of his carrying out his threats to kill her and the boys.  She had regular nightmares, and felt cheated out of a life of safety and security.  She found it difficult even to receive medical treatment, as she could not cope with someone touching her, even in a professional way.  She was exhausted, physically, mentally, and emotionally.  She said that she did not think that she would be able to live a normal carefree life again.  She believed that she might become another family violence death statistic.

1. The judge then had regard to the other offending which resulted in the sentence of 91 days’ imprisonment and an 18 month CCO.  The police summary of that offending was provided to his Honour by the prosecutor.  It seemed that counsel for the applicant on the plea did not take any objection to this course.

1. The applicant’s primary submission, on the plea, initially was that he receive a sentence of time served, taking into account the months he had spent in residential drug treatment and custody.  The judge indicated early on that this was unacceptable, and that the applicant would have to serve a further period in custody, perhaps followed by a CCO.  The Crown’s position was that a further term of imprisonment was required, but that a combination sentence would be within range.

1. On behalf of the applicant, it was submitted that he had been a good worker over a very long time.  In opposing a CCO, it was submitted that the applicant had gone from using methamphetamine daily, to being drug-free, for a period of some two and a half years.  It was further submitted that he had effectively spent one year and nine months as a ‘remand prisoner’, with six months of that period being in residential drug treatment rehabilitation.  In addition, it was submitted that he should receive 91 days’ credit by way of Renzella[1] time.

   [1]See, generally, R v Renzella (1997) 2 VR 88.

1. The judge adjourned the plea for some six weeks.  He ordered and obtained a pre-sentence report from Corrections Victoria.  That report deemed the applicant to be a suitable candidate for a CCO, but recommended the imposition of various conditions, including unpaid community work, treatment and rehabilitation, mental health assessment and treatment, offending behaviour programs, and supervision.  These conditions were all ultimately attached to the CCO imposed.

1. The Crown submitted that there should be some cumulation in respect of the two charges.  It noted, however, that charge 2 occurred on the very same day as another offence for which the applicant had already been sentenced.  It was acknowledged that this needed to be taken into account when assessing totality.

Sentencing remarks

1. In sentencing the applicant, the judge recognised that BH had suffered profound trauma by reason of the applicant’s degrading, cruel, and humiliating treatment of her.  These adverse effects continued significantly to affect her.  The offending was grave, and could only be regarded as serious.  There was a need for stern punishment in order to achieve general deterrence, specific deterrence, and denunciation.

1. Nonetheless, the sentence imposed on 25 January 2017, and the time the applicant had spent at the residential drug rehabilitation clinic were relevant to totality.

1. The applicant had displayed some insight and remorse.  He had not seen his sons for more than two years.  He had pleaded guilty, which was important, notwithstanding the fact that this was a late plea.  If the applicant could remain abstinent from the use of illegal drugs, his risk of reoffending was low.  In addition, delay was an important sentencing consideration.

The proposed ground of appeal

1. In his written case, the applicant noted that in addition to the sentence of 23 months’ imprisonment, the conditions of the CCO required him to perform 200 hours of unpaid community work, be subject to supervision, and undergo treatment and rehabilitation (100 hours of which could be credited towards the 200 hours of community work).

1. The applicant accepted that his offending was objectively serious.  Indeed, it could fairly be described as cruel and degrading.  However, he submitted that, in all the circumstances, the imposition of a CCO to follow the period of imprisonment was manifestly excessive.

1. The applicant referred to Boulton v The Queen,[2] where this Court recognised that CCOs have an ‘obvious punitive element’.[3]  The three year CCO imposed in this case was submitted to have impacted significantly upon the applicant’s freedom of movement, choices of activities and associations, and also upon his privacy.

   [2](2014) 46 VR 308; [2014] VSCA 342.

   [3]Ibid 331 [91]–[95].

1. In short, the applicant submitted that the duration of this CCO, the additional punishment of the unpaid community work, and the inherent punitive consequences of the mandatory conditions are productive of an overall sentence that is manifestly excessive.

1. Finally, the applicant referred to Director of Public Prosecutions v Lade (a pseudonym),[4] a decision of this Court allowing a Director’s appeal against sentence, which was said to be a relevant comparator.  The offending in that case was said to be significantly more serious than that of the applicant in the present matter.

   [4][2017] VSCA 264.

1. The respondent in Lade had originally been sentenced to an aggregate term of 16 months’ imprisonment.  On appeal, he was resentenced to a term of two years and 11 months’ imprisonment with a non-parole period of two years.  It was submitted that while Lade was only a single case, and clearly not a ‘precedent’ in any direct sense, the resentencing exercise undertaken by this Court in that matter did not sit easily with the sentence imposed in the instant case.

1. In response, the Crown submitted that the sentence imposed in the present case, including, in particular, the three year CCO with conditions, could not be regarded as manifestly excessive.  The judge’s sentencing remarks did not reveal any error of principle.

1. With regard to Lade, it was submitted that broad consistency is achieved not by numerical equivalence, but by uniformity of approach.  Lade could be distinguished from the present case in several important ways.  The offender there had pleaded guilty at the earliest opportunity.  This stood in stark contrast with the applicant, who only pleaded guilty after a failed application for a permanent stay, and who had cross-examined witnesses, including BH, at committal.  Lade had made full and frank admissions at the earliest opportunity, and unlike the applicant, had no prior convictions of any kind.

1. This was a case that required stern punishment.  The two offences both constituted serious acts of family violence.  They were committed about four months apart and separated in both time and nature.  This was not isolated offending.  The sexual assault which took place when BH’s friends were at the house was a particularly humiliating and degrading act.  It must have been plain to the applicant that BH was not consenting to that sexual act, and he could not reasonably have believed otherwise.  The second offence, charge 2, was both chilling and menacing, and had had a traumatic and ongoing effect on BH.

1. Moreover, a CCO can be of particular benefit when it commences following the completion of a term of imprisonment.  In this case, the CCO was necessarily and properly punitive to some degree.  For the most part, however, it was structured towards advancing the applicant’s rehabilitation, and community protection.

1. This was not an especially punitive CCO.  In any event, the ground of manifest excess is a stringent one, difficult to make good.[5]  Non-specific error requires the conclusion that the sentence was so unreasonable or unjust as to allow the inference that there must have been some error in the exercise of what is otherwise a wide measure of latitude afforded to sentencing judges.

   [5]DPP v Karazisis (2010) 31 VR 634; [2010] VSCA 350, 663 [127] (Ashley, Redlich and Weinberg JJA).

Analysis

1. In our view, the judge’s reasons for sentence do not suggest any error of principle.  Nor can it be said that the decision to attach a CCO, with the conditions outlined above, to the term of 23 months’ imprisonment, was clearly or wholly outside the range open to the sentencing judge.

1. The offending in this case was properly to be viewed as grave.  The applicant’s conduct towards BH, his partner of many years, was cruel and degrading.  It was designed to be humiliating and hurtful.  It resulted in profound trauma, which was hardly surprising.

1. For these reasons, we would refuse leave to appeal.

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