DPP v Husar
[2011] VSCA 70
•16 March 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2009 0672 | |
| DIRECTOR OF PUBLIC PROSECUTIONS | Appellant |
| v | |
| ZANAK JOHN HUSAR | Respondent |
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JUDGES: | ASHLEY, BONGIORNO and HANSEN JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 10 March 2011 | |
DATE OF JUDGMENT: | 16 March 2011 | |
MEDIUM NEUTRAL CITATION: | [2011] VSCA 70 | |
JUDGMENT APPEALED FROM: | R v Husar (Unreported, County Court of Victoria, Judge Gaynor, 13 May 2009) | |
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CRIMINAL LAW – Sentencing – Director’s appeal – Sexual penetration of a child under ten (5 counts), indecent act with a child under 16 (6 counts), false imprisonment, intentionally causing injury, threat to kill – Respondent pleaded not guilty – No remorse – Total effective sentence of seven years with non-parole period of four years and six months – Individual sentences of 15 months and two years on sexual penetration counts manifestly inadequate – DPP v Grabovac [1998] 1 VR 664 – Respondent’s health – Double jeopardy – Discretion not to intervene – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr T Gyorffy | Mr C Hyland, Solicitor for Public Prosecutions |
| For the Respondent | Dr G J Lyon SC with Mr G M Hughan | Victoria Legal Aid |
ASHLEY JA:
I agree with Hansen JA, for the reasons which his Honour gives, that the Director’s appeal should be dismissed. I wish to add two matters.
First, in my opinion this appeal had, from the very beginning, extremely limited prospects of success. Although complaint could legitimately be made about the way in which the judge structured the sentences, the total effective sentence very improbably demonstrated such inadequacy as was required for a Director’s appeal to succeed. That this was so was emphasized by several statements made by the prosecutor on the plea – statements which, I should make clear, cannot be criticised.
I note that the prisoner filed notice of applications for leave to appeal against both conviction and sentence on 26 May 2009. The Director’s appeal was dated 10 June 2009 and was filed on 17 June. I draw no conclusion from that chronology, or from what I consider was the weakness of the Director’s appeal. There is occasion, however, to emphasize the heavy burden which is cast upon the Director in determining to lodge an appeal against sentence.
Second, the consequence of the appeal is that at least some individually inadequate sentences are being permitted to stand. No doubt they will form part of the next Sentencing Snapshot for the particular offence. This illustrates yet again the pitfalls of sentencing statistics.
BONGIORNO JA:
I agree with Hansen JA that this Crown appeal should be dismissed for the reasons his Honour has expressed.
HANSEN JA:
Zanak John Husar (‘the respondent’) was tried in the County Court on a
presentment containing 16 counts to which he pleaded not guilty. He was acquitted on counts 13 and 16, and convicted of the remaining 14 counts. The offences occurred in December 2005 when the respondent was aged 57. He was aged 61 at the date of sentence, with no prior convictions. Following a plea in mitigation, on 13 May 2009 he was sentenced as follows:
Count Offence Verdict Maximum Sentence Cumulation 1 False imprisonment G 10 yrs 9 mths 4 mths 2 Indecent act with a child under 16 G 10 yrs 9 mths 4 mths 3 Sexual penetration of a child under ten G 25 yrs 15 mths 6 mths 4 Indecent act with a child under 16 G 10 yrs 6 mths 4 mths 5 Sexual penetration of a child under ten G 25 yrs 15 mths 6 mths 6 Indecent act with a child under 16 G 10 yrs 9 mths 4 mths 7 Sexual penetration of a child under ten G 25 yrs 15 mths 6 mths 8 Indecent act with a child under 16 G 10 yrs 9 mths 4 mths 9 Indecent act with a child under 16 G 10 yrs 9 mths 4 mths 10 Indecent act with a child under 16 G 10 yrs 9 mths 4 mths 11 Sexual penetration of a child under ten G 25 yrs 2 yrs BASE 12 Sexual penetration of a child under ten G 25 yrs 15 mths 6 mths 13 Indecent act with a child under 16 NG 14 Intentionally cause injury G 10 yrs 10 mths 4 mths 15 Threat to kill G 10 yrs 8 mths 4 mths 16 Intentionally cause injury NG[1] Total Effective Sentence: 7 years
Non-parole Period: 4 years 6 months[1]The respondent was also acquitted on an alternative count of recklessly causing injury.
The judge declared that the respondent had served 55 days pre-sentence detention. The judge sentenced the respondent as a serious sexual offender in relation to counts 4 to 12 inclusive, and declared that he was to be registered pursuant to s 34 of the Sex Offenders Registration Act 2004 with life reporting conditions.
The respondent sought leave to appeal against conviction and sentence but abandoned each application.
There remains, however, an appeal by the Director of Public Prosecutions against sentence on the ground that the sentences imposed on each count, the total effective sentence, and the non-parole period were manifestly inadequate in all the circumstances.
Nature of the offending
The complainant in respect of counts 1 to 13 inclusive was a girl called S who was seven years old when the offending occurred. Apart from count 1 (false imprisonment), all counts relating to S were sexual offences. The complainant in respect of counts 14 to 16 inclusive was S’s twin brother C. The counts relating to C were offences of violence rather than sexual offences.
The offending occurred in December 2005, shortly after the respondent resumed a friendship with the de facto partner of the complainants’ mother. The respondent became a regular visitor at their home and struck up a friendship with the complainants. As the complainants’ mother was suffering from poor health at the time, the respondent often looked after the complainants at their home and also at the respondent’s flat. For present purposes, it is sufficient to adopt the following description of the offending from the judge’s sentencing remarks:
4Count 1, a charge of false imprisonment, occurred between 1 and 31 December 2005 on an occasion where the twins were visiting at your flat. You shut S in a room putting something under the door, and then at that time took a shaver and asked her to “shave your rude part”.
5Count 2, indecent act, relates to the same occasion [as count 1] when you asked S to touch you on the penis. You told her to “touch my rude part or else” and you grabbed her hand telling her that she was to touch you under your clothes. At first she just touched your thigh, and then you told her to grab “the right spot”, indicating your genital area, which she did grab and pretended to touch it. She says she did not really touch it until you told her to and she then grabbed it quickly.
6Count 3, sexual penetration, occurred on the same occasion [as count 1] when S was trying to kick down the door in the room. She said that you touched her on the bottom saying, “Well, I’m touching your bum now”, and she said that you touched her bottom, “On the inside under her clothing”, which she said was “disgusting.” This sexual penetration alleged is that you placed your finger in S’s anus.
7Count 4, indecent act, also relates to the same occasion [as count 1] in the same room when you were talking about putting butter on her bottom. Ultimately you did this, then S asked to go to the toilet, and then her brother C got the door open. She said she went to the toilet and wiped the butter off.
8Count 5, a count of sexual penetration, occurred on another occasion at the twins’ home, also in the same month. On this occasion they were playing a game of Teachers with you using pens and pencils. During the game you and C started arguing over chairs, and then you told C to go away. When C left, according to S, you said, “Good, now he’s gone, now I can do it”, and then you put a pencil inside her vagina.
9Count 6, a charge of indecent act, relates to an occasion in the same month, that is December 2005, when S was at your home. You locked the doors and offered her $20 to strip and dance on the cupboard. Ultimately she did this, that is, she danced and took off her clothes for you.
10Count 7, a charge of sexual penetration, also occurred in December 2005 when S was in your garage where you had a number of teddy bears in a box. She said whilst out there you picked up a syringe, that is the plastic part of the syringe without the needle, and pushed it into her anus, which S said hurt her.
11Count 8, indecent act, occurred at the twins’ house where S was outside picking fruit from a tree at the side of the house and you touched her on the breast and vagina under her clothing.
12Count 9, a count of indecent act, also occurred at the twins’ home when S was making a sandwich in her kitchen and you told her to put some butter on your genital area saying she could then bite it. She refused, and you then touched her vagina under her skirt.
13Count 10, a charge of indecent act, occurred in the play room at the twins’ house when you told S to touch your penis, which she grabbed, and you told her to “play around with it”.
14Count 11, a charge of sexual penetration, referred to another occasion at the twins’ home when S was fixing her brother’s bike in the backyard and you came behind her and penetrated her anus with your penis.
15Count 12, a charge of sexual penetration, occurred also in December 2005 in the loungeroom of the twins’ home where S was doing backflips off the couch and you put your fingers in her vagina.
16Count 14 [intentionally causing injury] relates to S’s twin brother, C. Count 14 … refers to an occasion later on the same day that the activities comprising Counts 1 to 4 on the presentment occurred. Back at the twins’ house later in that day you came over to the twins’ house and played Teachers with them, and at this time you punched C in the mouth causing his lip to swell.[2] You also hit C on the head. This apparently occurred in the loungeroom.
17Count 15 [threat to kill] refers to an occasion in December 2005 when you told C that if he said anything about what you had done to his twin sister S you would kill him. You threatened C with a knife saying “I’ll kill you, I’ll kill you when you are sleeping, I’ll cut your neck”, and pretended to cut him.
[2]In her charge the judge described count 14 as a punch to the head giving a fat lip and also a kick to the groin. It is clear from the summary of prosecution opening that count 14 was alleged on the basis of both a kick and a punch.
Procedural history
On 10 March 2006, the complainants told their mother that the respondent had offered S money to dance naked on the table. On 12 March, S attended at the Sunshine Sexual Offence and Child Abuse Unit where she made a Video and Audio Evidence (‘VATE’) statement. On 16 March, S made a second VATE statement. C also made a VATE statement on that day. On 11 April 2006 the police searched the respondent’s flat and seized a number of items, and the respondent was arrested and interviewed. On 22 May 2007 the respondent was charged on summons and on 27 November 2007 he was committed for trial and released on bail. The trial commenced on 16 March 2009 and concluded with a verdict on 20 March 2009. The defence called no evidence.
Sentence
The judge said the following in her sentencing remarks:
18I now turn to your personal circumstances. You are 61 years old and have no prior convictions. You were born in Germany 1948 of a Polish father and Romanian mother. You have a sister two years younger than you. Your parents emigrated to Australia when you were four. Your family settled in Shepparton where you lived in your childhood years, then moved to Footscray when you were a teenager. You completed Year 12 at the Footscray Institute. You then joined the Commonwealth Public Service in the Department of the Navy where you eventually held a specialised role with a high level of security, details of which did you not wish to be divulged to the court.
19In your late 30s early 40s the Department was reorganized and you were retrenched. You received a lump sum benefit. You have not worked since, living both off that benefit and eventually on sickness benefits on which you were placed.
20Since childhood you have suffered from muscular dystrophy, a condition you apparently inherited from your father. This condition clearly retarded your growth. You have a limp, you cannot lift heavy objects and you have trouble climbing stairs. You are, however, able to ride a pushbike. You also take medication for epilepsy. You have never married or had children. At the time of this offending you were living in a flat owned by your sister. You still have contact with your sister, but only told her of the court hearing at the conclusion of the trial after you had been remanded in custody.
21Your counsel told the court you were reticent on a number of matters including your physical disabilities. I had particular concerns over the effect your obvious physical disabilities would have on your capacity to endure imprisonment.
22I received a report from Dr Foti Blaher, the Medical Director of St Vincent’s Correctional Health to the effect that muscular dystrophy is a condition which deteriorates over time and that you would experience decreased mobility and strength due to your condition, and indeed your counsel told me the main problem that you experience with your condition is a continuing decline in your strength capacity. Dr Blaher believed that this condition could affect your ability to work in the prison and could present mobility problems such as climbing stairs and getting into top bunks. He believed you could be moved to a cell appropriate to your level of disability. Your epileptic condition appears to be stable.
23I am satisfied that due to your age and physical difficulties a term of imprisonment will be more onerous for you than other prisoners, and this is a matter I take into account in sentencing you. It appears you are a fairly solitary man, and I apprehend that you will have few visitors during the term of imprisonment I impose, and this is also a matter I take into account.
24At the end of the day, however, this was most serious offending involving, as it did, the serious sexual abuse of a young child, with the aggravating feature that at the time of the sexual penetrations S was only 7, that is a child under the age of 10.
25The offending against her brother C was particularly nasty involving, as it did, physical and verbal intimidation and abuse. At this time you had worked your way into the trust of the twins’ mother who was unwell, providing you with an opportunity to have greater access to her young children, a situation which I am satisfied you thoroughly exploited.
26You have shown no remorse for your actions and I am informed by your counsel maintain your innocence as to the charges. Unsurprisingly your actions have had some effect. The victim impact statements from the twins’ mother reveals that S has nightmares, will not sleep in her bed and will not sleep with the light off, all manifestations since this offending against her.
27No mention was made of the effect on C. It was conceded by the prosecution that four years down the track thankfully both children otherwise presented as bright and undisturbed children when giving evidence at the special hearing.
28It is clear, however, that principles of denunciation, just punishment and general deterrence, are paramount in the sentencing exercise I must undertake. The proposition was not resisted by your counsel that the only appropriate sentence I should impose upon you is one of imprisonment to be immediately served.
The appeal
In his submissions counsel for the Crown focused on the sentences on the counts of sexual penetration of a child aged under ten. He submitted that the sentences were so disproportionate to the seriousness of the offending, and so ‘out of kilter’ with sentencing practice, as to demonstrate manifest inadequacy that warranted appellate intervention and re-sentencing. He referred to the Sentencing Snapshot which reveals that between 2003 and 2008, for those persons sentenced to prison for that offence, the median length of imprisonment was three years and six months. In the present case, the sentences for the sexual penetration of a child aged under ten were two years on one count and 15 months on each remaining count. The latter represented a mere five percent of the maximum penalty.
Although in his oral submissions counsel focused on the sexual penetration sentences, it is to be noted that his written outline also took issue with the sentences on the other offences. As to the offence of indecent acts with a child aged under 16, the Sentencing Snapshot reveals that between 2003 and 2008, for those persons sentenced to prison for the offence, the median length of imprisonment was one year and six months. In the present case, the sentences for this offence were six months on one count and nine months on each remaining count, which were well below the median sentences. Similarly, it was submitted that the sentences on the violence offences did not reflect the seriousness of the offending and the maximum penalties. Further, counsel emphasised the young age of the complainants, the fact that the offending largely occurred in the family home when the respondent had the care and supervision of the complainants, the respondent’s lack of remorse, and the lack of any psychological or psychiatric disorder which contributed to the offending.
Conclusion
Although she did not say so in terms, the judge appears to have approached the sentencing exercise by first considering what the total effective sentence should be, and then formulating the sentences and cumulation on each individual count to produce what she regarded as an appropriate total effective sentence. However, as Ormiston JA observed in DPP v Grabovac:[3]
In general a court should avoid imposing artificially inadequate sentences in order to accommodate the rules relating to cumulation. In other words, as the High Court said, where practicable when applying accepted rules of sentencing as to totality, proportionality and the like and in order to fashion an appropriate total effective head term in relation to a series of offences, it is preferable to achieve a satisfactory result by passing appropriate individual sentences and to make those sentences wholly or partially concurrent, rather than by an order or orders for the cumulation of unnecessarily reduced individual sentences.
[3][1998] 1 VR 664, 680.
In my view, the sentences imposed on the counts of sexual penetration of a child aged under ten were manifestly inadequate, having regard to current sentencing practice, the maximum penalty, the objective seriousness of the offending and the respondent’s personal circumstances. This consequence was produced by proceeding, as in my view her Honour did, in the way discountenanced by Ormiston JA in Grabovac; that is, the judge imposed artificially low sentences on the individual counts of sexual penetration of a child aged under ten and made substantial proportions of those sentences cumulative in order to reach a total effective sentence of seven years. The judge should have imposed sentences on the individual counts which properly reflected the gravity of the offending, and then made orders for concurrency and cumulation so as to arrive at an appropriate total effective sentence. For the purpose of the disposition of this appeal it is sufficient to refer to the judge’s error in respect of the sexual penetration offences as this is where the error had more substantial impact.
Notwithstanding this, the question is whether the Court should intervene and impose a heavier sentence. In my view, in the particular circumstances, it should not do so. That is for several reasons.
The principles of double jeopardy apply to this appeal. And, in addition, the Court has a residual discretion to decline to intervene even if satisfied that the sentences, the total effective sentence and the non-parole period are manifestly inadequate. In the first place, as counsel for the Crown conceded, even if the appeal was allowed and the respondent was re-sentenced, the total effective sentence would not increase very much. That concession was correct and responsibly made. Whether or not that concession took account of the effect of the double jeopardy considerations, it was accurate as to the extent of success, at best. Then, in addition there were the factors concerning the respondent’s general health and physical condition to which the judge evidently ascribed much weight.
In my view, notwithstanding the manifest inadequacy of the individual sentences on the counts of sexual penetration of a child aged under ten, and the merciful total effective sentence and non-parole period, regarding the matter overall, the Court should decline to intervene.
For these reasons I would dismiss the appeal.
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