Coronado v The Queen
[2016] VSCA 86
•29 April 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2015 0252
| CRISTIAN ANDRES CORONADO | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | OSBORN and PRIEST JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 27 April 2016 |
| DATE OF JUDGMENT: | 29 April 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 86 |
| JUDGMENT APPEALED FROM: | DPP v Coronado [2015] VCC 1859 (Judge Misso) |
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CRIMINAL LAW – Sentence – Rape – Whether sentence manifestly excessive – Leave to appeal granted – Appeal allowed with respect to total effective sentence – Appellant re-sentenced.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms G F Connelly | Papa Hughes Lawyers |
| For the Respondent | Mr D A Trapnell QC | Mr John Cain, Solicitor for Public Prosecutions |
OSBORN JA:
The applicant seeks leave to appeal against the sentence imposed by his Honour Judge Misso in respect of two charges of rape following conviction by a jury at trial.
The maximum penalty for the offence of rape is 25 years’ imprisonment.
His Honour sentenced the applicant to three years’ imprisonment on charge 1, one year of which was ordered to be served cumulatively upon a four year term of imprisonment imposed on charge 2. The total effective sentence was thus five years’ imprisonment. The sentencing judge fixed a non-parole period of three years.
The proposed ground of appeal is as follows:
Ground 1 : The individual sentences imposed, order for cumulation, total effective sentence and non‐parole period, are manifestly excessive in view of:
a. The objective seriousness of the offending:
i.The entire duration of offending was a matter of seconds;
ii.The conduct at charges 1 and 2 was brief and separated by less than 10 seconds;
iii.The offending was absent any physical force, violence, aggression, degrading language or persistence.
b. The applicant’s personal circumstances:
i.First time offender;
ii.Youthful at 20 years of age at time of offending;
iii.Positive prospects for rehabilitation;
iv.Four months spent in immigration detention prior to sentence; and
v.Without the support of his family whilst incarcerated in Australia.
Background facts
The sentencing judge summarised the relevant facts as follows:
You attended a party on 24 May 2013 at a house in Brunswick East. The complainant also attended that party. It was a housewarming party. One of the people putting on the party was Andy Hoffman. At about 1.00am, the complainant got into Hoffman’s bed and went to sleep. At some point, the complainant removed her lower clothing so that she was naked from the waist down.
At some stage after she had fallen asleep, you entered the bedroom and lay beside her. She gave evidence that she felt you touching her vagina. She felt you running your fingers along her vagina and then she felt you penetrate her vagina with your fingers. She pushed your hand away. She said that what I have just summarised occurred over a matter of seconds. She then felt you penetrate her vagina with your penis.
She believed that the lapse in time between you penetrating her vagina with your fingers, and then with your penis, was less than ten seconds. She felt your penis partially penetrate her vagina. She could not recall whether you withdrew your penis or whether it was the movement of your body on hers as she turned to look at you, which resulted in your penis withdrawing from her vagina. You got up from the bed and dressed. You then left the bedroom.
Shortly afterwards, the complainant also got up from the bed, dressed and identified you as the person who had raped her. From the time you lay beside the complainant in the bed, until the time you got up from the bed, was probably a short period of time, given that the first act of penetration was fairly short lived, followed by some seconds, and then followed by the second act of penetration, which was also fairly short lived.
What is clear from the evidence is that the complainant did not know you. Although she had spent some hours at the party before the rapes occurred, she had not met you nor spoken to you. It is unclear how you became aware that she was asleep in the bedroom but it is obvious that you saw a sleeping female in the bed in the bedroom, which prompted you to enter the bedroom and engage in sexual activity with her.[1]
[1]DPP v Coronado [2015] VCC 1859 [2]–[6].
Personal circumstances
The applicant is aged 22. He was 20 when the offending occurred. He is of Chilean nationality and his family resides in that country. His father works in the tourism industry and the financial resources of the family are such that they will not be able to visit and support the applicant during his imprisonment.
Until the offending in issue, the applicant had demonstrated good character. He had successfully completed secondary school and travelled to Australia in order to improve his English language skills and to obtain qualifications as a chef. He arrived in Australia in 2012 and lived initially with a Chilean family for about six months before moving into a shared house with other students.
He undertook a training course at William Angliss Institute with considerable success. He was the recipient of a chef’s scholarship both in 2013 and again in 2014.
Nevertheless, in order to support himself, the applicant worked in a series of positions as a hotel chef while undertaking fulltime study. At the time of the offending, he was working 25 hours a week in addition to his course and it was submitted on his behalf at the plea that the offending occurred in circumstances where he had gone out drinking with friends after such a week.
The applicant underwent an initial trial in April 2015 which resulted in a hung jury. He lost his job and, following difficulties with maintaining stable accommodation, his bail was revoked on 5 May 2015.
The applicant then advised his parents of his situation. His father was able to visit Melbourne for a short period and secured accommodation for his son. The applicant was then granted renewed bail on 29 May 2015.
Immediately thereafter, however, the Immigration Department cancelled the applicant’s visa and after a brief period at Maribyrnong he was interned on Christmas Island. He remained in immigration detention for some four months pending the trial which led to his convictions. The sentencing judge treated this detention as equivalent to pre-sentence detention and took it into account in fixing sentence.
As a result of the interruption of his studies in April 2015, the applicant completed only one year and one term of his course at William Angliss Institute.
At the date of sentence, the applicant had already been the subject of bullying in prison and had spent a week in lockdown 23 hours per day. It was apparent that it was likely that he would be held in protective custody on an ongoing basis.
The trial judge’s reasoning
The trial judge noted that the prosecution accepted that the offending had the following characteristics:
Your counsel submitted that the circumstances of the offending should be characterised as follows:
·It was opportunistic. That is, there was nothing to suggest that it was predatory, premeditated or planned;
·From the time you entered the bedroom, to the time you left the bedroom, was a short period of time;
·When you appreciated that the complainant was not compliant, you discontinued the sexual activity immediately;
·There were no other aggravating features, such as any aggression demonstrated by you, any violence, any pressure or insistence by you, physically or verbally, that she be compliant.[2]
[2]Ibid [8].
The judge reasoned as follows with respect to the gravity of the circumstances.
Although I accept that the correct characterisation of what occurred is that what you did was opportunistic, you nonetheless set upon a young woman who was asleep in bed and proceeded to take advantage of the fact that she was asleep, and partially naked, to obtain sexual gratification. You must have known that she was asleep. You must have known that she could not be consenting to any level of sexual activity whilst in that state.
It was as a result of her vulnerability, being both asleep and partially naked, and possibly suffering the effects of intoxication, that you set upon her in the hope that she might be compliant, or that you might obtain the sexual gratification you were after, from a woman who was possibly in a state where she might not be aware of what was happening to her.[3]
[3]Ibid [24]–[25].
Nevertheless, his Honour ultimately sentenced the applicant on the express basis that:[4]
·the rapes were part of the same transaction of offending;
·the rapes were at the lower end of seriousness for offences of this kind; and
·there were no aggravating circumstances associated with the rapes.
[4]Ibid [28].
Insofar as the applicant’s personal characteristics were concerned, the judge accepted:[5]
·the applicant had no prior convictions;
·he presented as a youthful offender;
·the applicant’s term of imprisonment would be more onerous than would otherwise be the case because he will not receive visits from his family and will not receive support from them;
·account must be taken of the period of four months spent in immigration detention.
[5]Ibid [28]–[29].
His Honour also had regard to relevant sentencing practice but expressly acknowledged the limitations of the assistance he could get from the sentencing snapshot and rape case summaries with which he was supplied.[6] In addressing the decision upon which the applicant placed most reliance, Simon,[7] he identified the sentence imposed by the trial judge[8] but did not refer to the fact that the Court of Appeal substituted three year sentences on two counts of rape and made no orders for cumulation in respect of one charge of indecent assault and two charges of rape. The total effective sentence being three years’ imprisonment with a non-parole period of 18 months. It seems to me that the approach adopted by his Honour in the present case accords more with that adopted by the trial judge in Simon rather than that adopted by the Court of Appeal, although there are distinctions between the particular facts of each case. I do not however rest my decision in this application on this aspect of the matter.
[6]R v Simon [2010] VSCA 66 (‘Simon’); Hasan v The Queen (2010) 31 VR 28.
[7][2010] VSCA 66.
[8]Six months’ imprisonment on the count of indecent assault and four years’ imprisonment on each of two counts of rape with no cumulation. The total effective sentence was four years’ imprisonment with a non-parole period of two years.
Analysis
As Bongiorno JA observed in Simon, the offence of rape comprises a wide range of criminal culpability and ‘a sentence which is clearly appropriate in one case of rape will be manifestly excessive in a different case and even manifestly inadequate in another’.[9]
[9][2010] VSCA 66 [60].
In the present case, the trial judge was correct to accept that the rape was at the lower end of the range of seriousness of offences of this kind because of the very short duration and extent of the incident in question. As the applicant submits, the victim made clear in her evidence in chief that the entire offending was over in a matter of seconds. The individual conduct constituting charges 1 and 2 was very brief and was separated by no more than 10 or 15 seconds. In my view, significant considerations of totality arise because the offending was interconnected and contained in one brief episode.
In turn, the fact that the applicant was a young offender raised a number of relevant considerations:
(a) it helped explain the opportunistic nature of the offending and bore, to some extent, on the applicant’s moral culpability;
(b) it illuminated the practical penalty the applicant had already suffered by way of the loss of the opportunity to complete his training as a chef, the experience of two trials, immigration detention, and pre-sentence detention during which the applicant had suffered bullying and had been placed in protective custody;
(c) it fortified the conclusion that imprisonment would be more onerous than for the ordinary prisoner because of the applicant’s isolation from his family and other support and the prospect of deportation without successfully completing what he had hoped to achieve in this country;
(d) it encouraged the view that the applicant’s rehabilitation must be a major sentencing consideration.[10] The judge made no express reference to the applicant’s prospects of rehabilitation. Despite the absence of pleas of guilty and evidence of remorse and insight, the applicant’s prior good record, his high level of achievement as an overseas student, and his youth all support the view that he must have reasonable prospects of rehabilitation.
[10]R v Mills [1998] 4 VR 235.
In my view, the total effective sentence imposed by his Honour was manifestly excessive when regard is had to the following matters:
(e) the fact the effective sentence of imprisonment was in reality five years and four months because of the immigration detention flowing from the applicant’s offending;
(f) the fact that the applicant was a young offender and was only 22 years of age at the date of sentence;
(g) the need to give proper effect to the principle of totality having regard to the very brief duration of the single episode in which both offences occurred;
(h) the significant extra-curial punishment involved in the termination of the applicant’s studies at which he excelled, the process of two trials and immigration detention;
(i) the fact that during his imprisonment the applicant will undergo unusual isolation from his family in Chile and will likely be held in protective custody on an on-going basis and will be faced with impending deportation;
(j) the need to recognise and encourage the applicant’s prospects of rehabilitation.
Whilst manifest excess is a stringent test and the applicant must demonstrate that the penalty imposed by the sentencing judge was wholly outside the range reasonably open, I do not accept that the application should be determined by broad reference to the range of penalties imposed on rape sentences. Rather, the appropriateness of the applicant’s sentence must be determined having regard to the particular facts of his case in accordance with the principles which can be discerned
in other cases.
In the present case, the combination of circumstances to which I have referred leads to the conclusion that the total effective sentence was manifestly excessive. I would grant leave to appeal and allow the appeal.
I am not however persuaded that the individual sentences were outside the range reasonably open. As the judge emphasised, the applicant took advantage of a vulnerable victim and, as counsel for the respondent further emphasised, each of the rapes was constituted by distinct acts, albeit in the one episode.
In the circumstances, I would set aside the order for cumulation but confirm the individual sentences. This results in a total effective sentence of four years’ imprisonment. I would fix a non-parole period of two years.
PRIEST JA:
I agree with Osborn JA.
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