Director of Public Prosecutions v Costa
[2014] VSCA 116
•20 June 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2013 0219
| DIRECTOR OF PUBLIC PROSECUTIONS | |
| Appellant | |
| v | |
| THARAKA ISURU SAMPATH COSTA | Respondent |
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| JUDGES: | MAXWELL ACJ, WHELAN and PRIEST JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 29 May 2014 |
| DATE OF JUDGMENT: | 20 June 2014 |
| MEDIUM NEUTRAL CITATION: | [2014] VSCA 116 |
| JUDGMENT APPEALED FROM: | R v Costa (Unreported, County Court of Victoria, Judge Harbison, 21 October 2013) |
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CRIMINAL LAW – Appeal – Sentence – Crown appeal – Aggravated burglary, false imprisonment, rape – Total effective sentence 10 years and 7 months’ imprisonment – Non-parole period 5 years’ imprisonment – Consideration of current sentencing practice with respect to fixing of non-parole period – Whether circumstances warranted exceptionally short period – Applicable sentencing principles – Case not exceptional – Non-parole period manifestly inadequate – Appeal allowed – Non-parole period increased to 7 years – Kumova v The Queen [2012] VSCA 212 applied.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Ms F L Dalziel | Mr C Hyland, Solicitor for Public Prosecutions |
| For the Respondent | Mr D Grace QC with Dr M Fitzgerald | Marich Legal |
MAXWELL ACJ
WHELAN JA
PRIEST JA:
After a trial in the County Court, the respondent, Mr Costa, was convicted of serious offences including aggravated burglary, false imprisonment and rape. The judge imposed a total effective sentence of 10 years and seven months’ imprisonment. A non-parole period of five years was fixed.
The Director of Public Prosecutions has appealed against the sentence. He contends that the non-parole period is manifestly inadequate. There is no challenge to any of the individual sentences or to the head sentence.
For reasons which follow, we would allow the appeal. For a head sentence of this length, a non-parole period of less than 50 per cent is wholly exceptional as a matter of sentencing practice, and could only be justified if the circumstances of the offences — and the offender — were wholly exceptional. As will appear, there was nothing about this case which warranted its being treated as exceptional.
The circumstances of the offending
Mr Costa arrived in Australia in February 2004, aged 24. He met his wife in Melbourne and they married in August 2008. The relationship began to deteriorate after they lost a baby, who was stillborn in 2009. About a year later, they separated. Mr Costa began to drink heavily.
Mr Costa was still with his wife when, in April 2010, he met YG. He was a client of hers in a brothel but the relationship subsequently developed into a personal one. At the time they met, Mr Costa was 30 and YG was 21.
They lived together on and off during 2010 and 2011. The relationship broke down in early 2011. The offending occurred in August 2011. The sentencing judge found — and this is not disputed — that the offending occurred in the context of Mr Costa not being able to accept that the relationship had ended and that YG ‘wished to move on’.
On 19 August 2011, Mr Costa attended YG’s home. There was a disagreement between them. On that occasion, Mr Costa took her mobile phone and some cash before leaving (charge 2 – theft).
The principal offences were committed a week later. YG had decided that she would travel to China. Having packed her suitcase and organised her passport, in readiness for a flight on 25 August 2011, she went to bed and went to sleep.
Early on the morning of 24 August 2011, YG awoke to find her packing undone and items from her bags strewn on the floor. She found the back door of her house open. As she was investigating, Mr Costa jumped on her and pushed her to the ground. He grabbed her around the neck in a choking fashion. He then smashed her head to the floor. He dragged her by the head towards the bedroom and made her lie on the bed face down, with her hands behind her back.
Mr Costa tied YG’s hands with rope and tape, tied her legs and taped her mouth. He then left the room, closed the door and left the house. YG gave evidence at the trial that, at the time of this attack, Mr Costa had a woman’s stocking on his head and gloves on his hands. She said that she had recognised him despite this disguise, because of her familiarity with his smell and with his physical appearance.
Having left YG tied up, Mr Costa took her credit card and went to an ATM where he used the card to check her account balance. He then filled up his car with petrol before returning to the house. His attendance at the ATM was captured on closed circuit TV.
While Mr Costa had been away from the house, YG had been partially successful in untying herself but had not been able to complete her escape before his return. He tied her to the bed once again, and pulled down her underwear. He put a sock in her mouth, placed a condom on his penis and raped her.
Mr Costa subsequently left the house, taking her passport, another mobile phone which she had bought to replace the one stolen by him the previous week, and several of her credit cards and keys. YG was ultimately able to free herself, and she ran from the house to seek assistance.
The judge identified the conduct giving rise to the respective convictions (other than the rape) as follows:
·aggravated burglary: entering YG’s house with intention to commit a sexual offence;
·intentionally causing injury: putting his hands around YG’s neck, hitting her head on the floor and pulling her hair;
·false imprisonment: dragging YG along the floor, tying her hands and feet by tape and rope, putting a sock in her mouth, winding tape around her head and physically restraining her; and
·theft: taking her mobile phone and some cash on 19 August 2011 (charge 2); and her passport, credit cards and other items on 24 August 2011 (charge 7).[1]
[1]R v Costa (Unreported, County Court of Victoria, Judge Harbison, 21 October 2013) (‘Reasons’) [6], [16]–[20].
The judge described the subsequent events in these terms:[2]
You were apprehended by the police late in the morning of 24 August 2011. Prior to your apprehension, you had hidden several of the items which you stole from your victim in a car park where you worked. Those items were later retrieved by the police. When you were questioned by the police, you denied having committed these offences, and I am satisfied that when questioned by the police, you concocted a fanciful series of explanations for the presence of those items in your possession and as to your movements on the night of your offence and also as to the nature of your relationship between yourself and your victim.
In fact you sought to present yourself as being a victim. I am satisfied beyond reasonable doubt from the evidence at your trial, that the allegations that you made about your victim in this respect were false and were made in an attempt to deflect police from further investigating you.
[2]Ibid [21]–[22].
It was common ground on the plea that Mr Costa’s actions were properly to be characterised as a home invasion. The judge accepted the prosecutor’s submission that it was a serious example of a home invasion:[3]
It was pre-meditated. It involved breaking into your victim’s home while she was asleep. The prosecutor emphasised the chilling nature of your actions, particularly your actions in leaving her tied up whilst you left the house and went about actions of some normality, such as obtaining petrol and checking the balance of the ATM and then returning to rape her.
…
He described your actions on the [24 August 2011] as being escalating in nature, having been proceeded by the earlier theft when you visited her home a week earlier. He characterised your action in stealing from your victim, after you had broken into her house and imprisoned and injured her and raped her as a gratuitous act, calculated to cause her maximum inconvenience by reason of stealing her passport and credit cards — things which would be essential if she was to leave for China as she had planned to do.
There was no challenge to this characterisation, either on the plea or on the appeal.
[3]Ibid [25], [27].
The sentencing judge referred to the victim impact statement filed by YG, in which she described the emotional impact of the offending on her:[4]
She still suffers from feeling fear and a sensation of suffocation, arising out of your actions in choking her by putting your fingers around her neck. She describes having terrible memories of that night of 24 August 2011, which still torture her. She is depressed, she is scared that such an event may happen again. She describes in her victim impact statement her bruises and the injuries of a physical nature caused by you and describes continuing to have headaches.
[4]Ibid [23].
The judge imposed sentences as follows:
Charge on Indictment Offence Maximum Sentence Cumulation 2 Theft (Crimes Act 1958 (Vic) s 74(1)) 10 y
(Crimes Act 1958 (Vic) s 74(1))3 m 1 m 3 Aggravated Burglary (Crimes Act 1958 (Vic) s 77(1)) 25 y
(Crimes Act 1958 (Vic) s 77(1))5 y 2 y 4 Intentionally Causing Injury
(Crimes Act 1958 (Vic) s 18)10 y
(Crimes Act (Vic) 1958 s 18)2 y 3 m 5 False Imprisonment (Common Law) 10 y
(Crimes Act 1958 (Vic) s 320)4 y 2 y 6 Rape (Crimes Act 1958 (Vic) s 38(1)) 25 y
(Crimes Act 1958 (Vic) s 38(1))6 y Base 7 Theft 10 y 6 m 3 m Total Effective Sentence: 10 y 7 m Non-Parole Period: 5 y Personal circumstances
The judge noted that Mr Costa’s primary work in Melbourne had been in the cleaning industry and that he had been very well regarded in that work. At the time he was arrested, he was working as an area manager, supervising cleaners on multiple sites.
His previous employer in the cleaning industry had provided a reference in which he described Mr Costa as a very dedicated and hard-working person, who gave great attention to detail and had an ability to make fair decisions. The employer described Mr Costa as honest and very trustworthy, and said he was prepared to offer him employment again as soon as he was released from prison. He described Mr Costa as having an outstanding track record in employment.
A reference from Mr Costa’s father urged the judge to sentence him in a way which did not destroy his potential to become a valuable and useful citizen in society. He described the ill-health of Mr Costa’s mother. The judge noted that this had caused Mr Costa much anguish.
Importantly, Mr Costa’s estranged wife had also provided a reference. She described the devastation they had both felt when they lost their child. She expressed a wish to reconcile with him and to build up a family again. She expressed confidence that he had the ability to lead a good life as a useful citizen in society.
Mr Costa himself had provided a letter to the judge, in which he described the devastation at losing his child and said that this had led to the separation between himself and his wife. He viewed that separation as being the beginning of ‘the chain of unfortunate events’. Mr Costa said that the time he had already spent in prison had taught him many lessons. He wished to have the chance to rebuild his ‘ruined life’ and to be with his family and parents, leading a normal life as a useful citizen.
Her Honour said that she took all of those matters into account, but added:[5]
I find it significant that your letter, prepared in anticipation of your plea hearing, does not contain any expression at all of regret or anything that could be characterised as remorse, in relation to the actions for which I am to sentence you today.
[5]Ibid [48].
Delay
Mr Costa was arrested on 24 August 2011, the day of the offending. He was tried before a jury in late 2012, and on 14 December 2012 was convicted of all charges. Before sentence was imposed, however, the trial judge received a letter from a juror which contained allegations of improper communications between her Honour’s tipstaff and several jurors. On 30 January 2013, this Court quashed the conviction, noting a Crown concession that on the basis of the police investigation to date, there might well have been a ‘serious departure from the prescribed processes for trial’.[6] A new trial was ordered.
[6]Tharaka Isuru Costa v The Queen [2013] VSCA 5, [5] citing Baini v The Queen (2012) 246 CLR 469, 479 [26].
Having been in custody since 24 August 2011, Mr Costa was granted bail on 7 February 2013 following the quashing of the convictions. The retrial took place in July 2013. On 1 August 2013, the jury returned guilty verdicts on all charges except one of common assault.
On the plea, defence counsel relied on delay as a mitigating factor. The submission relied on ‘the last six months, effectively’, that is, the period between the quashing of the conviction and the conclusion of the second trial.
In her reasons, the sentencing judge noted the defence submission that this period of time[7]
should be seen as weighing much more heavily on you, than if the trial had for instance simply been adjourned. [Counsel] suggests that it is more akin to a sentence of imprisonment that you have endured, given that your life was in limbo during that time with a conviction hanging over your head.
I accept that this is so, and it is a matter which I should take into account in sentencing you today.
[7]Reasons, [60]–[61].
With respect, the analogy with a sentence of imprisonment was not a valid one. It was undoubtedly true that Mr Costa had hanging over his head the prospect of the retrial, and of being convicted once again. But, however stressful that may have been, it could not properly be compared to the loss of liberty which a sentence of imprisonment entails. Nor, in our view, was the period of six months of any special significance as a mitigating factor.[8]
[8]Cf R v Merrett, Piggott and Ferrari (2007) 14 VR 392, 401–2 [38]–[44].
The non-parole period
Having pronounced the total effective sentence of 10 years and seven months’ imprisonment, her Honour then directed that a non-parole period of five years be served. Her Honour said:[9]
I note that this is a much shorter than usual non-parole period[.] I have deliberately sentenced you to a much shorter than usual non-parole period in order to accommodate the issues of rehabilitation, particularly the prospect that you have a job to go to on your release and that you have family support.
[9]Reasons, [84].
Her Honour had earlier found[10] that Mr Costa:
[10]Ibid [62].
(a) was a man of prior good character;
(b) was held in high regard by his close family and friends;
(c) had a job waiting for him when he was released from prison; and
(d) had shown the intention of undergoing courses in prison which would assist him when he was released.
Her Honour concluded:[11]
All that means[,] Mr Costa, that you have good prospects of rehabilitation and I accept further, in respect of those issues, your counsel’s submission that the offences took place in the context of a conflictual relationship. This makes it less likely … that you will be a danger to other members of the community when you are released.
[11]Reasons, [63].
The defence had relied on a report by Mr Gary McMullen, a consultant psychologist. Mr McMullen had seen Mr Costa on one occasion, and had administered a number of psychometric tests, as follows:
(a) the Personality Assessment Screener;
(b) the Inventory of Offender Risk, Needs and Strengths (‘IORNS’); and
(c) the Paulhus Deception Scales (‘PDS’).
Of these, only the results of the IORNS test and the PDS test were the subject of detailed analysis and commentary in the report. According to the report, the IORNS test
is a 130 item self-report measure that is intended to assess static risk, dynamic risk and protective strength factors as they relate to the risk of general, violent or sexual recidivism.
The relevant findings were that:
·Mr Costa was most likely seeking to present a positive impression;
·nevertheless, his risk factors for recidivism were low, whilst the factors protecting against criminal behaviour and recidivism were high;
·his score on the ‘Criminal Orientation Scale’ was high, reflecting:
oa ‘defeatist attitude … towards life’s goals’; and
ohis denial that he had hurt anyone through his criminal behaviour.
On the plea, defence counsel naturally relied on the finding that the risk factors for recidivism were low. It can be seen, however, that the findings on ‘criminal orientation’ were of real concern, not least because — even after conviction — Mr Costa was refusing to accept that he had hurt his victim.
Other tests also raised serious questions. The PDS test ‘measures a person’s tendency to give socially desirable responses on self-report measures’. The relevant findings were that Mr Costa had a high score on both ‘Impression Management’ (‘IM’) (suggesting that he was ‘faking good’) and on ‘Self-Deceptive Enhancement’ (‘SDE’), being the tendency to give ‘honest but inflated self-descriptions’. According to the report:
The [SDE] scale represents an unconscious favourability bias closely related to narcissism. High scorers show a form of self enhancement best described as rigid overconfidence akin to narcissism. The measure taps self-deception in the sense of a pervasive lack of insight. Mr Costa’s score was high.[12]
[12]Emphasis added.
Mr Costa thus had
[a]n IM high, SDE High profile [which] can be conceptualised as a ‘repressor pattern’. Individuals scoring high in both subscales tend to be restrained and generally well socialised, but when they do have problems they lack the insight to deal with them, and appear rigid. They may appear sanctimonious about others’ problems. In sum, they have a trait-like style towards self-enhancement as well as a tendency to be influenced by situational demands to response in a socially acceptable manner.
In conclusion, Mr McMullen said that Mr Costa
not only needs to develop insight into his own personality and behaviour, but also importantly to understand how his behaviour hurts others. One would hope that through insight he may also develop greater levels of empathy.
As her Honour noted, the defence submission was that the report supported the view that Mr Costa had good prospects for rehabilitation. Her Honour said that she accepted this submission, while also noting that the expert[13]
did not indicate anything which might suggest that you understand or regret that you have engaged in criminal behaviour towards your victim.
…
The results of some of the tests that he administered suggest … that you are lacking in insight, and that your personality is such that you tend not to take responsibility for your own criminal behaviour and that you are prone to self-deception and rigidity of thought.
[13]Reasons, [52], [54].
Any assessment of Mr Costa’s prospects of rehabilitation had, necessarily, to be qualified on account of his lack of insight, lack of empathy, lack of understanding of his criminal behaviour and refusal to take responsibility for it. For these reasons, in our view, Mr Costa’s prospects could be viewed as no better than reasonable.
What matters for present purposes is that there was nothing about Mr Costa’s circumstances which took his case — or the significance of his prospects of rehabilitation — outside the ordinary run of cases. Yet, as noted earlier, her Honour stated that it was because — and only because — of ‘the issues of rehabilitation’ that she had fixed the very low non-parole period which she did.
We turn finally to the question of manifest inadequacy.
Sentencing practice and non-parole periods
In their joint judgment in Kumova v The Queen,[14] Redlich and Osborn JJA noted that sentencing practice with respect to the setting of non-parole periods was to set a non-parole period somewhere between 60 per cent and 75 per cent of the head sentence. Their Honours said:
The concept of a range of usual non-parole periods expressed as a proportion of the head sentence is an element of sentencing practice which provides a general guide to the sentencing judge. The judge is obliged to have regard to sentencing practice. The judge having considered the individual circumstances of the case and arrived at a minimum sentence may then review the proportion of that sentence to the head sentence in the light of the usual range of non-parole periods. Understood in that way, the practice promotes consistency in sentencing in the application of the principles to which we have referred. But as the joint reasons of the High Court in Hili v The Queen in speaking of Federal sentences state, the usual range of non-parole periods cannot be used as a starting point or norm which will then be adjusted to allow for the special circumstances of the offence and the offender. Such an approach would be to embark upon an impermissible two tiered sentencing process with the attendant risk that the individual circumstances of the case will not receive their due weight.[15]
[14][2012] VSCA 212 (‘Kumova’).
[15]Ibid [30] (citations omitted).
Their Honours thus distinguished the notion of ‘a range of non-parole periods that are usual, expressed as a proportion of head sentences’[16] from the narrower concept, sometimes employed in sentencing reasons, of an offender being given ‘a shorter than usual non-parole period’.[17] As their Honours noted, the latter usage has been deprecated because it is apt to mislead and create false expectations, and to lead to misconceived appeals against sentence.[18]
[16]Ibid [35].
[17]Ibid [34].
[18]Ibid [34]. See Wallace v The Queen [2012] 35 VR 520, 523 [16]; Kneifati v The Queen [2012] VSCA 124, [24], [27].
The non-parole period is the minimum term which justice requires be served, having regard to all of the circumstances of the offences.[19] As will be apparent from the description set out earlier, this was very serious offending. The non-parole period had to be set at a level which would reflect the seriousness of the offending, and the important purposes of specific and general deterrence.[20]
[19]See Power v The Queen (1974) 131 CLR 623, 627–9; Bugmy v The Queen (1990) 169 CLR 525, 538.
[20]R v VZ (1998) 7 VR 693, 697–8 [15].
The non-parole period represented only 47 per cent of the head sentence, well outside the sentencing practice identified in Kumova.[21] Given the substantial head sentence, such a departure could only have been justified if the circumstances were truly exceptional. As the foregoing analysis shows, there was nothing exceptional about this case.
[21][2012] VSCA 212.
For these reasons, in our view, the non-parole period fixed was outside the range reasonably open to the judge in the circumstances of the case, and hence is properly characterised as manifestly inadequate.[22] We would allow the Director’s appeal and re-sentence Mr Costa. There having been no challenge to the head sentence, we would re-impose the same individual sentences and total effective sentence. We would direct that a non-parole period of seven years be served before he is eligible for parole.
[22]DPP v Karazisis (2010) 31 VR 634, 662–3 [127].
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