Clarke v The Queen

[2011] VSCA 385

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0345

WAYNE GREGORY CLARKE

v

THE QUEEN

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JUDGES:	BUCHANAN JA and T FORREST AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	9 November 2011
DATE OF JUDGMENT:	24 November 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 385
JUDGMENT APPEALED FROM:	County Court of Victoria at Melbourne, Judge Rizkalla, 31 August 2010

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CRIMINAL LAW – Sentence – Pleaded guilty to causing serious injury recklessly, rape, indecent assault and causing injury recklessly – Sentence of 5 years 9 months imprisonment with minimum term of 3 years – Trial judge erroneously sentenced applicant as a serious sexual offender - Part 2A of the Sentencing Act 1991 – Applicant in poor health - Re-sentenced to 5 years 3 months imprisonment with minimum term of 2 years 6 months

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr J E McLoughlin	Andrew George Solicitors
For the Respondent	Mr J D McArdle QC	Mr C Hyland, Solicitor for Public Prosecutions

BUCHANAN JA:

1. I agree with T Forrest AJA.

T FORREST AJA:

1. The appellant pleaded guilty in the County Court to one count of causing serious injury recklessly, one count of rape, one count of indecent assault and one count of causing injury recklessly.

1. His plea was heard on 11 August 2010 and he was sentenced on 31 August 2010 as follows:

Charge on Indictment	Offence	Maximum	Sentence	Cumulation
1	Causing Serious Injury Recklessly	15 years [s 17 Crimes Act 1958 (Vic)]	2 years’ imprisonment	1 year
2	Rape	25 years [s 38(1) Crimes Act 1958 (Vic)]	4 years’ imprisonment	Base
3	Indecent Assault	10 years [s 39(1) Crimes Act 1958 (Vic)]	18 months’ imprisonment	9 months cumulative
4	Causing Injury Recklessly	5 years [s 18 Crimes Act 1958 (Vic)]	9 months’ imprisonment	Concurrent
Total Effective Sentence:		5 years 9 months’ imprisonment
Non-Parole Period:		3 years
Pre-sentence Detention Declared:		63 days
6AAA Statement:		7 years 3 months’ imprisonment with a non-parole period of 5 years
Other orders: Serious Sexual Offender pursuant to s 6B(2b) Sentencing Act 1991 (Vic) Forensic Sample Order pursuant to s 464ZF(2) Crimes Act 1958 (Vic)

1. On 27 May 2011, Redlich JA granted leave to appeal against sentence.  A

ground upon which leave to appeal was granted was:

That the learned sentencing judge erred in sentencing the appellant as a serious sexual offender on count 3.

1. Mr McArdle QC for the respondent accepts that this error has occurred and that the sentencing discretion is re-opened. It is unnecessary to analyse this error beyond stating that the conditions necessary for the application of Part 2A of the Sentencing Act1991 did not exist.  Thus, when he came to be sentenced, the applicant was erroneously sentenced on count 3 as a serious sexual offender.

1. The effect of this error was that on count 3 her Honour was obliged to regard the protection of the community as the principal purpose of that sentence (s 6D).  Other potential effects of this error relate to cumulation (s 6E) and the imposition of a sentence disproportionate to the gravity of the offending (s 6D), although an analysis of the sentence demonstrates that these potential effects did not eventuate.

1. As the sentencing discretion is re-opened, it is necessary to set out a summary of the offending and the applicant’s circumstances.

Circumstances of offending

1. The applicant was aged 52 and the complainant 43 at the time of the offences.  They commenced an intimate relationship in April 2006.  The relationship was volatile and ended in January 2008.  At that time, each party took out intervention orders against the other.  In May 2008, they resumed social contact and in June 2008 they agreed to meet at the appellant’s home with a view to re-establishing a relationship.  During the evening, they had consensual intercourse.  An argument developed when the appellant accused the complainant of using another man’s name while having sex.

1. The appellant then punched the complainant in the face and kicked her in the ribs.  The complainant suffered swelling and lacerations to her lips, bruising to her face and cracked ribs (count 1 – causing serious injury recklessly).  The complainant dressed and left the flat.  A neighbour called the police.  The complainant believed her mobile phone remained in the appellant’s flat, although the police could not locate it.  The complainant was taken to the police station and then to hospital.

1. Approximately two hours later, the complainant left the hospital and returned, against police advice, to the appellant’s home.  She requested the return of her phone.  An argument developed over whether the phone was in fact at the flat and the complainant used another phone to ring a former boyfriend to tell him of the events of the evening.  The appellant became angry and threw the contents of a glass of wine over the complainant.

1. It seems that both parties were intoxicated at this time.  The appellant apologised to the complainant and apparently made an inquiry of the complainant as to whether she was wearing underpants.  The complainant lifted her dress up and demonstrated that she was not.  She made as if to leave and the appellant set about a violent attack upon the complainant.

1. He grabbed her by the hair, pulled her to the ground and pushed her face into the floor.  He inserted two fingers into her vagina and then dragged her across the floor for one or two metres (count 2 – rape).  The appellant removed his fingers and punched the complainant’s vagina three times with his clenched fist, saying words to the effect that ‘no cunt’s going to want this after I’ve finished with it’ (count 3 – indecent assault).  He then punched the complainant in the face, causing her bottom lip to split (count 4 – causing injury recklessly).  The complainant then left the unit.

1. As a result of this conduct, and in addition to the injuries already set out, the complainant suffered multiple bruising to her arms and legs, swelling to her vagina and some bloody discharge from her vagina.

1. The complainant subsequently reported these matters to the police.  On 15 July 2008, the complainant had a ‘pretext conversation’ with the appellant in which he agreed, at the least, that he assaulted her as set out above.  I consider it unclear whether there was an admission to rape.  In a police interview a few days later, the appellant admitted punching the complainant in the ribs, but denied raping the complainant and the other incidents of assault.

1. The appellant conducted a contested committal and maintained his pleas of not guilty until he received an adverse ruling on the admissibility of the ‘pretext conversation’.  He pleaded guilty on the first day of the trial, shortly before a jury was empanelled.

The appellant’s personal circumstances

1. The appellant is now 55 years of age.  He was adopted out by his natural parents at three months of age.  As I understand it, his natural father became his adoptive father and his adoptive mother was a Caucasian woman.  His natural mother was an aboriginal woman.  He grew up partly on the aboriginal mission  in Framlingham in western Victoria and partly in Melbourne.  He completed Year 11 at Heidelberg Technical College.

1. He completed an apprenticeship as a Sheet Metal Worker 1^st Class.  He married young, fathered a daughter (now 35) and has remained in more or less constant but varied employment throughout his adult life to date.  He has worked extensively with the aboriginal community as a Koori educator and for the Victorian Aboriginal Education Association (‘the VAEA’), effectively as an advocate and mentor for those less able to fend for themselves.  He left the VAEA after eight years and then worked for Mission Australia managing their aboriginal programs.  He ceased work there when he was charged, as a result of the difficulties associated with working with young people whilst awaiting trial on sexual offences.  He has been unemployed and at times homeless since that time.  It was accepted by the learned sentencing judge that he was devastated to lose his job and his standing in the community. His long involvement in junior sporting teams has also ceased.

1. His first marriage failed and he married again in his early thirties, fathering two further children from that relationship, which concluded nine years ago.  He remains on good terms with his three children and had joint custody of the younger two.

1. The appellant lost his mother and grandmother at about the time of these offences.  He tried to hang himself shortly after he was charged.  He was cut down by his new partner.  Psychological evidence was tendered at his plea and a long term history of depressive episodes was noted.  The appellant also has a long history of alcohol abuse.  Medical records tendered on the plea indicate that the appellant is in poor physical health.  He suffers diabetes (presumably Diabetes 2) which in 2005 was described as controlled.  In 2002, when he was 46, a stent was inserted in a coronary artery.  He has been treated for hypercholesterolaemia and ischaemic heart disease.  His medication regime in 2010 included daily aspirin, diclofenac sodium and nitrolingual pump spray as required.  In a medical report tendered on the plea,[1] Dr Quiery describes the appellant as in a very high risk category of premature death due to his ischaemic heart disease, hypertension, elevated blood lipids, diabetes and aboriginality.  Dr Quiery expressed major concerns for his health.

   [1]Part of exhibit 1 on the plea.  Authored by Dr Quiery, 20 July 2010, senior clinical officer Aboriginal Health Service Co-operative and signed in his absence by Dr Belfrage.

1. The appellant has a limited but relevant prior criminal history.  In two court appearances, he has been convicted and fined for four charges of breaching an intervention order.  All charges related to breaching intervention orders taken out by former partners.  Whilst the offending on those occasions was relatively minor, the relevance of it to the current sentencing exercise is obvious.

The sentencing

1. I consider that the degree of criminality exhibited by the appellant is high.  This is an unusual combination of offences in the sense that it is clear that the sexual offending was carried out, not for sexual gratification, but to degrade and humiliate the complainant.  The Victim Impact Statement tendered on the plea speaks eloquently of the physical and emotional trauma suffered by the complainant.  For my part, I am unimpressed by the argument advanced on the appellant’s behalf that the complainant’s behaviour was provocative and that this lessens the culpability of the appellant.  It is true that the complainant returned to the appellant’s flat in breach of an intervention order, and that she telephoned her new partner in front of the appellant.  No doubt it was unwise of the complainant to return, but I cannot accept that the appellant’s subsequent violent and degrading conduct is mitigated in any way by the complainant’s actions.  The quality of the appellant’s response to whatever provocative conduct occurred was, I consider, vastly disproportionate.  No doubt the appellant acted spontaneously and out of anger fuelled by alcohol and perhaps jealousy.  These emotions explain his conduct, but in my view do nothing to mitigate it.

1. The learned sentencing judge’s reasons for sentence are comprehensive and careful.  If this were a simple manifest excess appeal, I would have no difficulty in concluding that the sentence imposed is well within the range of sentences available in the exercise of sound sentencing discretion.  As the sentencing discretion is re-opened, I should say that I would be inclined to place a little more emphasis on the appellant’s current health issues than her Honour did.  The appellant is an aboriginal man in a high risk category for shortened life expectancy.  Although there is no evidence that his imprisonment will be made more onerous by virtue of his health problems, I consider there is a significant risk that his time in custody will occupy a larger proportion of the balance of his life than it would a 55 year old man in normal health.  I agree with her Honour that both general and specific deterrence must be given weight in the sentencing mix, as must the aspects of punishment and denunciation.  I also agree with her Honour that the appellant’s prospects for rehabilitation are good, subject to being able to moderate his drinking. I agree with her Honour that there ought be a longer than usual parole period.

1. I propose that the appellant be re-sentenced as follows:

Charge 1       Causing serious injury recklessly            12 months
Charge 2       Rape      4 years
Charge 3       Indecent assault  18 months
Charge 4       Causing injury recklessly   9 months

1. Count 2 is the base sentence.  I would direct that six months of the sentence on count 1 be served cumulatively on count 2.  I would direct that nine months of the sentence on count 3 be served cumulatively on the sentence imposed on counts 2 and 1.

1. That is an effective head sentence of five years and three months.  I would set a minimum term of two years and six months before the appellant is eligible for parole.

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