De Haas v The King
[2024] VSCA 141
•27 June 2024
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2023 0038 |
| CHRISTOPHER DE HAAS | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGES: | PRIEST and McLEISH JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 19 June 2024 |
| DATE OF JUDGMENT: | 27 June 2024 |
| MEDIUM NEUTRAL CITATION: | [2024] VSCA 141 |
| JUDGMENT APPEALED FROM: | DPP v Marie (a pseudonym) [2023] VCC 214 |
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CRIMINAL LAW – Appeal – Sentence – Manifest excess – Rape and associated offences – Applicant sentenced to 14 years and nine months’ imprisonment with 11 year and three month non-parole period – Individual sentences imposed within range – Sexual offences committed as part of one single episode – Orders for cumulation manifestly excessive – Appeal allowed.
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| Counsel | |||
| Applicant: | Ms R Champion | ||
| Respondent: | Ms E Ruddle KC | ||
Solicitors | |||
| Applicant: | James Dowsley and Associates | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
PRIEST JA
McLEISH JA:
Introduction
On 12 December 2022, the applicant, now aged 37 years,[1] pleaded guilty before a judge of the County Court to rape[2] (charge 5); false imprisonment[3] (charge 2); sexual assault[4] (charge 3); attempted rape[5] (charge 6); assault with intent to commit a sexual offence[6] (charge 4); common assault[7] (charge 1); and theft[8] (charge 7).
[1]His date of birth is 6 September 1986.
[2]Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences) Act 2016, s 38(1). The maximum penalty is 25 years’ imprisonment; and the standard sentence is 10 years’ imprisonment.
[3]False imprisonment is a crime at common law. The maximum penalty is 10 years’ imprisonment.
[4]Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences) Act 2016, s 40(1). The maximum penalty is 10 years’ imprisonment.
[5]Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences) Act 2016, s 42(1). The maximum penalty is 20 years’ imprisonment.
[6]Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences) Act 2016, s 42(1). The maximum penalty is 15 years’ imprisonment.
[7]Common assault is a crime at common law. The maximum penalty is five years’ imprisonment.
[8]Crimes Act 1958, 74(1). The maximum penalty is 10 years’ imprisonment.
Following a plea in mitigation, on 20 February 2023 the judge sentenced the applicant to a total effective sentence of 14 years and nine months’ imprisonment, with a non-parole period of 11 years and three months, in accordance with the following table:
Charge
Offence
Sentence
Cumulation
1
Common assault
12 months
2 months
2
False imprisonment
2 years
6 months
3
Sexual assault
2 years
6 months
4
Assault with intent to commit a sexual offence
3 years
6 months
5
Rape
11 years
Base
6
Attempted rape
7 years
2 years
7
Theft
12 months
1 month
Total effective sentence:
14 years and 9 months’ imprisonment
Non-parole period:
11 years and 3 months
Pre-sentence detention:
317 days
Section 6AAA declaration:
17 years and 6 months’ imprisonment with 15 years non-parole
Other orders:
Sentenced as a serious sexual offender in respect of charge 5. Registration under the Sex Offenders Registration Act 2004 with a 15 year reporting period.
The applicant sought leave to appeal against his sentence on the ground that it is manifestly excessive. In particular, the applicant contends that the individual sentences of two years’ imprisonment for sexual assault (charge 3), and seven years’ imprisonment for attempted rape (charge 6), are manifestly excessive, as are the orders for cumulation of the sentences on those charges (six months and two years respectively), resulting in a total effective sentence and non-parole period that are manifestly excessive.
For the reasons that follow, we accept the contention that the orders for cumulation of the sentences on charges 3 and 6 upon the base sentence are manifestly excessive. We would therefore grant leave to appeal; allow the appeal; and resentence the applicant in the manner set out below.[9]
[9]At [44].
The offending
The applicant’s offending was very serious.
On 8 April 2022, the applicant was released from Fulham Prison. He was then driven to Sale where he purchased alcohol and booked a motel room.
At about 12.30 am on 9 April 2022, the applicant was at the local McDonald’s restaurant when he encountered the complainant, ‘HS’, who had gone in her car to pick up some food, at the ‘drive-through’ section. He asked the complainant for a lift to the Sale railway station. HS agreed. She drove the applicant to the station, but he then asked to be driven back to the main street.
HS was in the process of taking the applicant back to the McDonald’s restaurant when he grabbed her in a headlock. (That conduct founds charge 1, common assault.) She then stopped the vehicle, and the applicant tried to kiss her. HS resisted and tried to get out of the car, but the applicant grabbed her arm and said, ‘Where the fuck do you think you’re going?’. (That is the basis of charge 2, false imprisonment, which continued until HS subsequently escaped.) HS broke into tears, and told the applicant that she was pregnant and had a boyfriend. The applicant became more angry and aggressive, and kept trying to kiss HS, saying, ‘Just come on, you want this’.
The applicant then made the complainant drive to a car park, where he leaned over and operated a lever which reclined the complainant’s seat. She was crying and scared. The applicant then made her undo her bra, before pulling up her shirt and licking her breasts. (That conduct is the basis of charge 3, sexual assault.) The applicant then put his left hand inside the complainant’s tracksuit pants and touched her vagina, trying to penetrate her. She was stiff and crying. (That conduct constituted charge 4, assault with intent to commit a sexual offence.)
The applicant then made HS drive back to an area opposite the train station. He started to kiss the complainant again and warned her not to run. He told her that he ‘just wanted 15 minutes’. She was completely terrified, and feared that she would be killed if she ‘didn’t do exactly what he said’. The applicant once more reclined the complainant’s seat, and told her to take off her tracksuit pants. HS lowered them but did not take them off. The applicant then climbed on top of her and unzipped his pants, and tried to penetrate her vagina with his penis through her underwear. He then pulled her underwear aside. HS continually said, ‘No’, but the applicant forced her legs over his shoulders and penetrated her vagina with his penis. (That conduct is the basis of charge 5, rape.)
The applicant then tried to penetrate the complainant’s anus, but she wriggled so that he could not effect penetration. She experienced pain as a result of the attempted penetration. As HS resisted, the applicant said, ‘I’m gonna fuck your arse’, ‘don’t stress’, and, ‘don’t fight it’. (That conduct formed the basis of charge 6, attempted rape.)
During the course of his attack, the applicant said to HS that he wanted to ‘face-fuck her so hard she vomited’; to ‘fuck her so hard in the arse that she would bleed’; and to take her away to a hotel for a weekend so he could tie her up and abuse her and rape her all weekend. He asked her if she would like that and made her say ‘yes’. He also asked her where he could get some ‘crack’ or ‘meth’ whilst he was raping her. He became even more aggressive when she said she did not know. In fear, HS told the applicant that she had a son at home (as she did), and the applicant responded ‘not anymore you don’t’.
Eventually, the complainant was able to escape from the car through the passenger door, and she ran barefoot with no pants on to a house in a nearby street. She knocked on the door and told the occupants that she had just been raped by a hitchhiker. They called police. When the police went to the applicant’s motel room, they located the complainant’s mobile telephone, her laptop and a folder of her personal papers there. (That is the basis of charge 7, theft.)
Police arrested the applicant on a street in Sale at 9.15 am. He told police he had ‘made a mistake last night’; was remorseful about the girl he had met and had kissed and touched; and that he had seen the girl, thought she was very attractive and ‘just wanted her’. In a record of interview he in effect told police (among other things) that he did not remember his offending because he has blackouts when he consumes alcohol.
Reasons for sentence
In his reasons for sentence, the sentencing judge noted that the applicant, who was aged 35 years at the time of offending, had ‘poor’ prospects of rehabilitation.
Referring to victim impact statements by the complainant and her mother, the judge noted that the applicant’s offending had been ‘highly traumatic’ for the complainant, and that its impact will be ‘long lasting’.
The judge noted that, on the afternoon prior to the current offending, the applicant had been before the Magistrates’ Court for contravening a family violence safety notice. The magistrate sentenced the applicant to 14 days’ imprisonment, and made a declaration that 165 days pre-sentence detention had been served. The applicant was released from Fulham Correctional Centre at about 3.20 pm.
Further, the judge noted, the applicant’s prior criminal history between 14 February 2005 and 8 April 2022 included 16 prior court appearances for drug and violent offending (including convictions for making a threat to kill and property damage), albeit the applicant had no prior convictions for sexual offending. On 28 February 2022, the applicant had been convicted of shop theft and committing an offence on bail (a sentence of seven days’ imprisonment being noted as time served). Earlier, on 22 June 2021, the applicant was dealt with in the Magistrates’ Court for breach of a community correction order, burglary, theft, bail offences, assault, contravening a family violence safety notice, possessing methylamphetamine and sentenced to 210 days’ imprisonment. Prior to those court appearances, the applicant had 13 preceding court appearances for dishonesty, violence, drug and driving offences, the sentences of imprisonment, and community correction orders breached by the applicant’s further offending.
The judge noted that the applicant had one son, who has been the centre of ongoing legal custody battles between the applicant and his son’s mother. Family violence intervention order charges are related to these battles.
As to the applicant’s early life, the judge noted that the applicant’s parents separated when he was young. He remained at school until Year 10, leaving after an incident where he assaulted a teacher. After leaving school, the applicant worked in metal fabrication and panel beating, having qualifications in metal fabrication and forklift driving, and engineering and boilermaking.
On 2 March 2022, six weeks prior to his offending, the applicant was assessed at Fulham prison as not having any psychiatric condition requiring treatment or diagnosis. After his arrest for the current offences, on 13 April 2022 the applicant was assessed as having no acute mental health concerns. Whilst in custody on remand, although the applicant had seen nurses and medical staff, no consultations or treatment related to mental health symptoms. The judge observed, however, that between 2014 and 2019, the applicant had been treated for diagnosed drug-induced psychosis.
The judge did not accept that any psychiatric condition played any part in the applicant’s offending. He noted that a neuropsychologist, Dr Harriet Downing, had assessed the applicant as having a full-scale IQ of 92 — placing him in the average range — and that Dr Downing’s opinion was that there was no evidence to support a diagnosis of a major mood disorder or an enduring psychotic illness (albeit that the applicant had problematic substance abuse, personality dysfunction and drug-induced psychosis in the past); the applicant was not experiencing any psychosis at the time of offending; and there was no evidence to suggest the applicant’s mental state would deteriorate as a result of incarceration.
As to the applicant’s plea of guilty, the judge noted it was entered early; was a clear acknowledgment that the applicant accepted responsibility for his criminal behaviour; indicated a willingness to facilitate the course of justice; and demonstrated remorse. Furthermore, the judge said that, given that it was entered during the pandemic, he would give the plea of guilty a more pronounced amelioration of sentence than if it had been entered ‘in ordinary times’.
The judge referred to various sentencing considerations — among them the need for just punishment; specific and general deterrence; rehabilitation; denunciation; protection of the community; current sentencing practices; the applicable maximum and standard sentences; and the effect of the serious sexual offender provisions — and cited a passage from Macarthur.[10]
[10]DPP v Macarthur [2019] VSCA 71, [69] (Ferguson CJ, Kaye and Weinberg JJA).
Finally, the judge remarked:
I have cumulated those parts of the sentence that reflect the seriousness of each offence whilst at the same time considering the sentencing principles of totality to ensure that a crushing sentence has not been imposed upon you. The sentencing principles of general deterrence, specific deterrence, just punishment, protection of the community, denunciation of your actions and your rehabilitation dictate that the only appropriate sentence is a term of imprisonment with a fixed non-parole period. If you are granted parole, the Adult Parole Board will further supervise your rehabilitation.
The applicant’s submissions
In support of the proposed ground of appeal, the applicant’s counsel submitted that once all relevant sentencing factors are taken into account and given proper allowance — including the acknowledged seriousness of the offending, relevant sentencing purposes, current sentencing practices and all matters in mitigation and aggravation — the sentences of seven years’ imprisonment for the attempted rape, and two years’ imprisonment for the sexual assault, can be seen to be manifestly excessive. For the same reason, the orders of two years’ cumulation of the sentence for attempted rape, and six months’ cumulation of the sentence for sexual assault, can also be seen to be manifestly excessive. The effect has been the imposition of a total effective sentence and non-parole period that are each manifestly excessive.
As to the matters going in mitigation, counsel relied, first, on the applicant’s very early plea of guilty (entered within four months of the offence); secondly, the applicant’s remorse; thirdly, the fact that there was no sexual offending in the applicant’s prior history (so that, to an extent, the current offending could be seen to be ‘out of character’); and, fourthly, 151 days of supposed Renzella time in respect of a sentence of 14 days’ imprisonment imposed by a magistrate on 8 April 2022.[11]
[11]See R v Renzella [1997] 2 VR 88 (‘Renzella’).
Counsel for the applicant submitted that charges 1 to 6 are so closely related and interdependent that it can reasonably be said of them that they all occurred as part of a single episode of offending against the same victim and at approximately the same time. The totality principle, and ‘one transaction rule’, applied, so that a substantial degree of concurrency was called for with respect to the sentences on charges 3 and 6.[12] Counsel submitted that this remains so notwithstanding that the applicant fell to be sentenced as a serious sexual offender on charge 5, since the principles of totality and proportionality remain important in sentencing serious offenders for serious sexual offences.[13]
[12]Counsel cited R v O’Rourke [1997] 1 VR 246, 253 (Winneke P, Brooking and Callaway JJA) (‘O’Rourke’) and Flynn (a pseudonym) v The Queen [2020] VSCA 173, [112]–[120], [130] (Niall, T Forrest and Weinberg JJA) (‘Flynn’).
[13]Counsel cited DPP v Drake [2019] VSCA 293, [24] (Maxwell P, Priest, Kaye, T Forrest and Emerton JJA) (‘Drake’); Zhao v The Queen [2018] VSCA 267, [99] (McLeish, Niall and Weinberg JJA) (‘Zhao’).
The respondent’s submissions
The respondent’s counsel justly described the applicant’s offending as ‘truly horrifying’, having an effect on the victim that was ‘devastating’. When proper regard is paid to the circumstances of the offending, the sentences on charges 3 and 6 are well within the appropriate range.
Counsel for the respondent submitted that the applicant had little to rely upon by way of mitigation other than his early plea of guilty, entered during the pandemic.
The applicant — who has an extensive prior criminal history including for offences of violence — had been released from Fulham Prison only nine hours prior to committing the offences. He fell to be sentenced on charges 5 and 6 as a serious sex offender pursuant to s 6D of the Sentencing Act 1991, so that protection of the community was the primary sentencing consideration, and there was a presumption of cumulation between sentences.
Counsel for the respondent submitted that there was nothing in the Renzella point. The sentencing judge had taken into account the applicant’s recent sentence of 14 days’ imprisonment, with the associated declaration of 165 days’ pre-sentence detention. In those circumstances, the applicant was not entitled to any further amelioration of sentence by way of Renzella time. It had been taken into account on 8 April 2022 by the sentencing magistrate.
The sentencing judge, counsel submitted, gave appropriate weight to the principle of totality. Counsel for the respondent contended that substantial weight needed to be given to considerations of general deterrence, specific deterrence, just punishment, protection of the community, and denunciation. Hence, the total effective sentence and non-parole period are within sound discretionary judgment.
Discussion
O’Rourke — decided before the serious sexual offender provisions were introduced into the Sentencing Act 1991 — was a case where the respondent was convicted at trial of rape, threatening to kill, two counts of indecent assault and intentionally causing injury, in circumstances where he had subjected a young, female medical student to a prolonged, terrifying and brutal assault of some 20 minutes’ duration in the private medical residents’ quarters of a Melbourne hospital. The trial judge sentenced the respondent to five years’ imprisonment for rape (count 4); two years’ imprisonment for the threat to kill (count 1); two years’ imprisonment for each of the indecent assaults (counts 2 and 5); and one year’s imprisonment for intentionally causing injury (count 6). Significantly, the trial judge directed that the sentences all be served concurrently. He also fixed a non-parole period of three years. In allowing an appeal against sentence by the Director of Public Prosecutions, the Court imposed individual sentences similar to those imposed by the trial judge, but directed that one year of the sentence imposed on count 1 (threat to kill); one year of the sentence imposed on count 2 (indecent assault); and six months of the sentence imposed on count 6 (intentionally causing injury); be served cumulatively upon each other and upon the sentence imposed on count 4 (rape); leading to a total effective sentence of seven years and six months’ imprisonment, upon which a non-parole period of five years and six months was fixed.
In discussing the approach to be taken to concurrency and cumulation when sentencing an offender for a series of sexual or violent offending perpetrated upon the same victim in the course of a single episode, the Court said that
it should not be thought that we are expressing the view that it is an immutable principle of sentencing that, where an offender has been found guilty of committing a series of sexual or violent acts on the same victim during the same episode, he or she is always bound wholly or partially to cumulate the penalties. There is not, in our view, any such principle of sentencing. Each case must depend upon its own facts. There may be, and indeed sometimes are, cases where because of the penalties already imposed the sentencer refrains from directing further cumulation lest there be imposed a crushing sentence or a sentence which offends against the principle of totality. Furthermore there are circumstances where the acts giving rise to discrete convictions are so closely related and interdependent that it can reasonably be said of them that they arise out of the one transaction and do call for concurrency. Clearly one or more of these considerations influenced the decisions in R v Pearson (unreported, Court of Criminal Appeal, 6 June 1995) and R v Gorman (unreported, Court of Appeal, 10 August 1995), to which decisions the learned judge referred in his sentencing remarks.
What is necessarily required in every case, even cases of sexual and violent offenders, is a sound discretionary judgment as to whether there should be cumulation and, if so, whether such cumulation should be in relation to some or all of the counts and whether it should be in whole or in part. Our decision in this case necessarily reflects our view that the judge’s discretion miscarried. It must therefore be realised that the orders which we propose to make are not to be taken as pre-empting the sound discretionary judgment of other judges in other fact situations. That having been said, it is none the less our view that there must be a degree of cumulation for multiple sexual or violent offences of such gravity that total concurrency would fail to do justice. We are disposed to think that, on not infrequent occasions in the past, sentencing judges have failed to recognise this.[14]
[14]Ibid 253.
More recently, in Drake, having cited the passage from O’Rourke set out immediately above,[15] the Court observed:[16]
Although O’Rourke was decided prior to the advent of Part 2A of the Sentencing Act 1991 (and in particular, s 6E, which provides that, unless otherwise directed, every term of imprisonment imposed on a serious offender for a relevant offence is to be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed on the offender), the fundamental principles informing the passage immediately above remain unchanged. Indeed, notwithstanding s 6D(b), which permits the imposition of a sentence disproportionate to the gravity of the offending in order to achieve the purpose of protection of the community, it is well accepted that the principles of both proportionality and totality remain important in sentencing serious sexual offenders for serious sexual offences.[17]
[15]Drake, [23].
[16]Ibid [24].
[17]R v Cowburn (1994) 74 A Crim R 385; R v Connell [1996] 1 VR 436.
And the Court in Flynn[18] said that
a sentencing judge should always strive to impose the sentence that is appropriate to each charge in a multi-charge indictment. The judge should deal with the principle of totality by making appropriate orders for cumulation. In some cases, it may be proper, and indeed necessary, to order little or no cumulation. That would be so where the offences are, basically, of the same order, and all committed at the same time, against the same victim.
[18]Flynn, [130] (footnote omitted).
We consider that the individual sentences imposed for sexual assault, charge 3 (constituted by the applicant making the complainant undo her bra, before pulling up her shirt and licking her breasts), and for attempted rape, charge 6 (constituted by the applicant endeavouring to penetrate the complainant’s anus with his penis) — although perhaps stern — were within the range of sentences open to the sentencing judge in the sound exercise of the sentencing discretion.[19]
[19]The applicant referred to sentences in other cases of attempted rape and sexual assault, revealing a wide range of circumstances in which these offences may be committed and an equally wide range of sentencing outcomes.
Bearing the foregoing principles in mind, we take a different view, however, with respect to the impugned orders for cumulation.
In the present case, there were a number of sexual offences all essentially committed as part of a single episode, which commenced with an initial assault upon the complainant and continued with her being falsely imprisoned. Although, of course, each sexual offence committed within that one episode of offending needed to be given adequate recognition by the imposition of proportionate individual sentences, we consider that the proper application of principle required that there be significantly less cumulation than that ordered with respect to the sentences on charges 3 and 6. We therefore consider that the cumulation ordered on the sentences for charges 3 and 6 are manifestly excessive, and must be set aside.
Self-evidently, the making of appropriate orders for cumulation will have the effect of moderating the total effective sentence, and will require adjustment of the non-parole period.
Given the foregoing, we would grant leave to appeal and allow the appeal. Although we would impose the same individual sentences as were first imposed on each charge, and would confirm all other orders made by the County Court, we would impose different orders for cumulation for the sentences on charges 3 and 6 — leading to a lesser total effective sentence than originally imposed — and would fix a new non-parole period. We would also make a new declaration pursuant to s 6AAA of the Sentencing Act 1991.
It goes without saying that the total effective sentence imposed remains a very substantial one, and rightly so. As the respondent submitted, the case raised the clear need for specific and general deterrence. The applicant’s offending, against a woman who was doing a stranger an act of kindness, was of the sort that leads women to be fearful for their personal safety and undermines civil society more generally. The sentence is amply justified, notwithstanding the early guilty plea and such remorse as the applicant displayed.
Our overall intention is reflected in the following table:
Charge
Offence
Sentence
Cumulation
1
Common assault
12 months
2 months
2
False imprisonment
2 years
6 months
3
Sexual assault
2 years
3 months
4
Assault with intent to commit a sexual offence
3 years
6 months
5
Rape
11 years
Base
6
Attempted rape
7 years
12 months
7
Theft
12 months
1 month
Total effective sentence:
13 years and 6 months’ imprisonment
Non-parole period:
10 years and 6 months
Section 6AAA declaration:
16 years’ imprisonment with 13 years and 6 months non-parole
Other orders:
The applicant is sentenced as a serious sexual offender on charges 5 and 6.[20] The order for registration under the Sex Offenders Registration Act 2004 with 15 years reporting period is confirmed.
[20]Charge 6 rested on s 321M of the Crimes Act 1958, rather than the common law, and as such was a ‘sexual offence’ as defined by s 6B(1) of the Sentencing Act 1991, and a ‘relevant offence’ for the purposes of s 6D(1): Sched 1, cl 1(f).
We would observe finally (and for the sake of completeness) that the submission that Renzella time should operate to reduce the sentence imposed on the applicant for the April 2022 offending is untenable. It is not at all clear that the magistrate who made this unusual order regarded the 151 days by which the time spent in detention exceeded the sentence imposed as Renzella time. Given the discrepancy, it is more likely that, when sentencing the applicant to 14 days’ imprisonment on 8 April 2022, the magistrate considered that a period of 165 days’ imprisonment was appropriate for the applicant’s offending, even if the sentence itself was significantly less. If so, to now take into account 151 days’ custody as supposed Renzella time would be to give the applicant undeserved credit for time served in custody for another offence. In any event, the point does not bear on the confined issues of manifest excess which were raised by the applicant.
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