DPP v Lian
[2019] VSCA 75
•8 April 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0118
| DIRECTOR OF PUBLIC PROSECUTIONS | Appellant |
| v | |
| THWANG ZA LIAN | Respondent |
S APCR 2018 0119
| DIRECTOR OF PUBLIC PROSECUTIONS | Appellant |
| v | |
| KAPLING THANG HLAWNCEU | Respondent |
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| JUDGES: | FERGUSON CJ, KAYE and WEINBERG JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 27 March 2019 |
| DATE OF JUDGMENT: | 8 April 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 75 |
| JUDGMENT APPEALED FROM: | DPP v Za Lian & Anor [2018] VCC 773 (Judge Lawson) |
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CRIMINAL LAW – Sentence – Director’s appeal – Pleas of guilty to rape – First respondent sentenced to total effective sentence of 8 years and 6 months with non-parole period of 6 years – Second respondent sentenced to total effective sentence of 7 years with non-parole period of 5 years – Offending in company – Unknown victim – ‘Rolled-up’ charges – Early pleas – Genuine remorse – Prospect of respondents being held in indefinite detention after completion of sentence – DPP v Dalgliesh (2017) 349 ALR 37 considered – Shrestha v The Queen [2017] VSCA 364 considered – DPP v Werry (2012) 27 VR 524 considered – Sentences not outside the range available to sentencing judge – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant: | Ms K Judd QC, Director of Public Prosecutions with Ms A J Roodenburg | Mr J Cain, Solicitor for Public Prosecutions |
| For the Respondent Za Lian: | Ms F Gerry QC with Mr R de Vietri | Victoria Legal Aid |
| For the Respondent Hlawnceu: | Mr D A Dann QC with Ms J Fallar | Emma Turnbull Lawyers Pty Ltd |
FERGUSON CJ
KAYE JA
WEINBERG JA:
On 24 May 2018, having pleaded guilty to one charge of rape, the respondent Thwang Za Lian was sentenced, to 8 years and 6 months’ imprisonment, with a non-parole period of 6 years. The respondent Kapling Thang Hlawnceu, also pleaded guilty to one charge of rape. He was sentenced to 7 years’ imprisonment with a non-parole period of 5 years.
The Director of Public Prosecutions has appealed against each sentence. The sole ground of appeal in each case is that the sentence imposed was manifestly inadequate.
Circumstances of the offending
On the night of 14 August 2017, the victim of these offences, RC, was raped by three men. The offending took place under the Werribee Bicentennial Bridge, where she had been sleeping. None of the three men were known to her.
It seems that RC had previously been in a relationship. However, she and her partner had fought, and she had left home several days earlier. She was ‘sleeping rough’ under the bridge.
The respondents Za Lian and Hlawnceu, together with a third offender who has pleaded not guilty, and is to be tried later this year, had been drinking at the Commercial Hotel in Werribee. They arrived at the hotel shortly after 7 pm, and left at about 9 pm. They parked their car in Comben Drive, in Werribee, at about 9.30 pm. The three of them got out of the car, and walked towards the bridge. They were carrying with them a six-pack of Corona beer.
Za Lian and the third offender approached RC while Hlawnceu watched them from nearby. Seeing the two men come towards her, RC yelled out ‘stay back’, and ‘go away’. She told them to leave her alone.
The two men continued to approach her, and she stood up. She tried to push them away, and then began to kick out and punch at them in fear. She screamed for help. At that point, Hlawnceu joined his friends and assisted them by covering her mouth to stop her from crying out.
RC was forced to the ground and dragged underneath the bridge. She was moved to a darkened area that could not be seen from the street. There, her clothes were removed. Her jeans and underwear were pulled down and left around one ankle. Her top was pulled up, exposing her breasts. Her legs were forced apart and held open.
Hlawnceu continued to restrain RC. He put a jumper over her face, which covered her eyes and her mouth and prevented her from calling out for help. Za Lian and the third man then each raped the victim by forcefully penetrating her vagina with his penis. She tried to fight them off. The third man received a scratch to the left side of his face. RC later said that she felt as though she were going in and out of consciousness during the attack.
Two witnesses, drove past and their headlights illuminated the scene. One called out to the offenders, saying ‘what are you doing?’. She then added ‘get out of here’. At that point the three men ran away, thereby ending the commission of the offence.
The other witness went to assist the victim as she was crawling up the embankment. She was seen to be bleeding from the vagina, and to have cuts to her knees, and bruising to her face. Her pants were down around her ankles. The police were called.
The three offenders were swiftly apprehended after they emerged from parkland. Members of the Dog Squad tracked the offenders heading away from the bridge. The police dog discovered a used condom that subsequently provided DNA evidence against Za Lian.
The victim was taken to Sunshine Hospital where she underwent a medical examination. She suffered significant genital injuries. The doctor who examined her concluded that the injuries in question were consistent with multiple acts of penetrative blunt force. These injuries included a full-length laceration of the right side interlabial sulcus, 75% length laceration of the left side interlabial sulcus, multiple small lacerations at the posterior fourchette and tenderness of the labia at the vaginal opening. Fresh blood was located in the vaginal canal and around the external genitalia.
When interviewed by police, Za Lian denied having raped the victim. He also denied that any of his friends had offended against her. He said that he was too drunk to recall the events in question.
Hlawnceu also told police that he was drunk at the time that the victim was attacked. He made a number admissions, however, regarding the offending. He acknowledged that his friends had raped her while he covered her mouth to prevent her from screaming.
The plea hearing — Za Lian
It was conceded, at the outset, that rape is always a very serious offence, and that this particular rape was a serious example of that offence.
Nonetheless, counsel for Za Lian submitted that this rape was not to be regarded as being in the worst-case category of offending. In particular, it was noted that there was an absence of aggravating features sometimes found in the commission of crimes of this nature.
It was submitted that the sentencing snapshot for rape showed that the median sentence for that offence was five years. Of the 185 offenders referred to in the snapshot, only 25 had received a sentence of eight years or more. It was, of course, accepted that sentencing was not an arithmetic process, and that statistics of this kind were of limited utility.
Counsel then raised with her Honour the respondent’s personal circumstances. A psychological report was tendered, which set out something of his background. He was born in Myanmar, and was of Chin ethnicity. His family spoke Hakha Chin, and were Christian. His immediate family were in Court, and supported him. Both parents worked in a meat factory in Brooklyn.
The respondent has a younger brother aged 20. Until the respondent was remanded, his family had relied upon his income. After he was incarcerated, his mother had to take on additional work to help financially.
The respondent grew up in poverty in rural Myanmar. The family had been persecuted by reason of their ethnicity. He had suffered from malaria as a child, and had missed the entire year in grade two. When he was aged 10 he was the victim in a motor car accident which led to him being hospitalised for a significant period of time. He had suffered broken ribs and facial injuries.
He stayed in school until year nine at which time he followed his parents from Myanmar to Malaysia. There, they were registered as refugees by the UNHCR. Life in Malaysia involved a precarious existence. The family eventually came to Australia in June 2013.
Za Lian had overcome adversity, and become a hard worker, with steady employment. He had also been heavily involved in the Church. He was supported in court by a large number of his community. Within the Church he was seen as a leader, and was treasurer of its youth section.
A series of character references were tendered on the plea indicating that he was a trustworthy and reliable young man. He looked after younger members of the community, and performed volunteering work to assist the elderly. He had no criminal history, and the psychological report found no predisposition to commit this type of offending.
Put simply, it was submitted that the only real explanation for what he did was his state of intoxication, coupled with peer pressure. There was nothing to suggest that he was the instigator of what occurred. He had little or no memory of the incident.
It was submitted that this was an opportunistic crime, with no evidence of any premeditation. The plea of guilty had been entered at a very early stage, at the committal mention. RC had never been cross-examined at Za Lian’s behest. This was said to be a very important mitigating factor so far as he was concerned.
The respondent had expressed remorse for his offending, acknowledging that his behaviour had been morally repugnant. This was his first time in custody, and he was determined to give up alcohol, and adhere more strongly to his faith. It was submitted that his behaviour was entirely out of character. While in custody, he has been in protection at Ararat. He is still young, only 22 at the time of the offence, and counsel relied upon that factor by way of mitigation.
Finally, it was noted that, having been granted a humanitarian visa, there was uncertainty as to what would happen to Za Lian at the end of his sentence. He would almost certainly be taken into immigration detention, and might spend many years there if he did not voluntarily return to Myanmar. It was highly unlikely that he would ever be in a position to go back to that country. The uncertainty as to his future would weigh heavily upon him, and would make his period in custody more burdensome than would be the case for an ordinary offender.
The plea hearing — Hlawnceu
It was submitted on Hlawnceu’s behalf that whatever sentence of imprisonment might be imposed upon him, a short non-parole period would be appropriate.
Counsel noted that delay was a factor in his case, as having turned 21 in January 2018, he had missed the opportunity for a Youth Justice disposition.
This respondent had come to this country as a refugee, by reason of ethnic and religious persecution. Assuming his visa were to be cancelled at the expiration of his sentence, he would face an uncertain future as he could not be returned to Myanmar. It was likely therefore that he would spend time indefinitely in a detention centre.
Hlawnceu was the only offender who had made full admissions. He had cooperated with police. He had expressed remorse in his record of interview. He was also the youngest of the three offenders. He had not himself sexually penetrated the victim.
Hlawnceu had offered to plead guilty at the earliest opportunity. As with Za Lian, he was Hakha Chin, having been born in the Chin State, in Western Myanmar. He was a Christian. The Hakha Chin were persecuted, and economically marginalised in Myanmar.
The respondent was one of three sons born to a poor farming family. He received only a perfunctory education, leaving school at the end of grade four. Even though he had attended English language school in Australia, he still found communication difficult.
The respondent had been in full time work for about two years, at a meat factory. The local Chin community were supportive of him.
It was submitted that the offending was spontaneous, opportunistic and certainly not planned. He claimed that he saw his friends approach the victim, but had no idea what they were doing, or planning. He heard her scream, and responded in shock by covering her mouth. His level of intoxication had contributed to his poor judgment as well. So too had his misguided loyalty to his friends.
It was said that there was genuine remorse and insight into what he had done. He was otherwise of good character and had no criminal history. He was still very young. His time in custody has been particularly difficult as he was isolated, Za Lian being kept in a separate unit. A character reference from a member of his Church was tendered.
Prosecution submissions on the plea
It was noted that each of the charges to which the respondents had pleaded guilty was a ‘rolled-up’ charge. In essence, that was because each offender was responsible, through the doctrine of complicity, not just for his own act of sexual penetration, but the act of sexual penetration perpetrated by the co-offender. In other words, although there was but a single maximum penalty of 25 years’ imprisonment available for this particular charge, each offender was to be dealt with on the basis that he bore responsibility for more than one act of sexual penetration.
The prosecution conceded that the plea of guilty had been an early plea, which had utilitarian value. It did not accept that the proceedings had been marked by delay. Nor in the case of Hlawnceu, could it be said that he had lost the opportunity of a Youth Justice order, given the gravity of the offending. It was conceded that the judge could take into account, by way of mitigation, the uncertainty that hung over the heads of each offender, as regards what would happen to them after they had served their sentences.
The prosecution did not accept that Hlawnceu should be treated more leniently than Za Lian merely because he had not himself engaged in an act of sexual penetration. He was present throughout the acts of rape, and assisted in their commission.
It was submitted that offending in company was an aggravating feature. It would have compounded the victim’s sense of powerlessness, and her terror and distress. It was further submitted that this was an extremely grave example of the offence of rape given that two offenders had taken turns to engage in penile penetration. Accordingly, it should be regarded as an offence that fell towards the higher end of the range.
The prosecutor referred the sentencing judge to this Court’s decision in Jurj and Miftode v The Queen; DPP v Miftode.[1] It was submitted that that decision contained several important statements of principle, and that it might be a useful comparator for the purpose of considering what sentences should be imposed upon these offenders.
[1][2016] VSCA 57 (‘Jurj’).
Finally, the prosecutor drew attention to a number of aggravating features of this offending. It was ongoing, lasting for somewhere between 23 and 33 minutes. The fact that it was committed in company was itself aggravating, as was the fact that the offending took place in a public place and that the victim was unknown to the offenders.
There was a significant degree of force used upon the victim, and in restraining her. The injuries inflicted upon her were indicative of violent penetration. Her victim impact statement spoke clearly of her humiliation, degradation and distress. She was extremely vulnerable at the time, alone, and in unfamiliar circumstances. She was set upon and her pleas ignored. The offending only stopped when the offenders were interrupted. They did not voluntarily desist.
As regards mitigating factors, the prosecution submitted that the fact that a condom had been used by Za Lian was of some weight, but not a great deal. Youth was a factor, but it was of diminished importance having regard to the gravity of this offending.
Sentencing remarks
The Director freely acknowledged that the sentencing judge had not fallen into any specific error in her sentencing remarks. Nor had she taken into account any irrelevant matters, or failed to have regard to any matters that she was obliged to take into account.[2]
[2]Save perhaps for the submission put by the Director that her Honour had failed to give proper weight to the maximum penalty for the offence of rape, 25 years’ imprisonment.
In her carefully constructed, and thoughtful sentencing remarks, the judge first summarised the facts. She then noted the harm which had been done to the victim by this offending.
Having summarised the personal circumstances of each respondent, and the submissions made on their behalf, her Honour referred specifically to various matters put in mitigation. In particular, she noted the early pleas of guilty, each of which had real utility, and the importance of having spared the victim of any further trauma by having to come to court to give evidence. She found that the pleas of guilty demonstrated remorse, and that there had been further expressions of remorse beyond that. She accepted that the offending was out of character. She noted that each respondent had previously been of good character, and she referred to their youth.[3]
[3]Her Honour applied the principles set out in Azzopardi v R (2011) 35 VR 43 (‘Azzopardi’) and R v Mills [1998] 4 VR 235 (‘Mills’).
The judge then observed that as a consequence of these convictions and sentences, each respondent would automatically fail the character test under the Commonwealth Migration Act 1958 and would almost certainly have his visa cancelled. This would result in a lengthy but indefinite period in immigration detention, even after the sentences had been served. It would mean that each respondent would be left uncertain as to his fate, while serving his sentence and this would increase the burden of imprisonment upon him.
As regards Hlawnceu, the judge observed that he had made full and frank admissions to the police from the outset regarding his involvement in these offences. He had demonstrated insight into the offending and had taken full responsibility. She found that he was genuinely remorseful, and noted his particularly young age. She also noted that, by reason of his language difficulties, his time in prison would be isolated, and he would not be able to access programs for at least a time. She concluded that there was some justification in his case for imposing a slightly lesser sentence than for Za Lian.
The judge concluded that this was a grave example of the offence of rape. She regarded the fact that it was committed in company as a ‘strong aggravating feature’.[4] She described it as a vicious and cowardly assault that was degrading and humiliating, carried out upon a victim who was vulnerable, alone at night and in an isolated place away from assistance. She described the situation created by the respondents as ‘terrifying’, and emphasised the need for both general and specific deterrence.[5] On behalf of the community, she denounced the respondents’ behaviour.
[4]DPP v Za Lian & Anor [2018] VCC 773 (Judge Lawson) [90].
[5]Ibid.
Analysis
Rape must always be regarded as a very serious offence. The maximum sentence available for rape, 25 years’ imprisonment, makes the gravity of that offence perfectly clear. Moreover, as the Director correctly submitted, these were serious examples of that always very serious offence.
At the same time, it is true to say that the offence of rape covers a wide spectrum of criminal liability. It goes without saying that sentencing is a principled, and not emotive exercise, and that each case must be considered in the light of its own particular circumstances.
The first thing to note about the charges brought in this case is that they were ‘rolled-up’ in nature. A ‘rolled-up’ charge is a collection of offences bundled together into a single charge. This can only be done by agreement with the defence, and only for the purpose of a plea of guilty.
Section 9(4A) of the Sentencing Act 1991 makes provision for the imposition of an ‘aggregate sentence of imprisonment’, in respect of convictions for offences that are the subject of ‘rolled-up’ or ‘representative charges’. The note to that subsection explains that a ‘representative charge’ is a charge for an offence that is representative of a number of offences of the same type alleged to have been committed by the accused. A ‘rolled-up’ charge differs in that it is a charge that alleges that the accused has committed more than one offence of the same type between specified dates.
In effect, a ‘rolled-up’ charge compresses a series of charges into a single charge in circumstances where, but for the agreement of the defence, the charge would be bad for duplicity.
When sentencing for a ‘representative charge’ a judge is not entitled to impose sentence in respect of other crimes.[6] When sentencing for a ‘rolled-up’ charge, the sentencing judge must recognise that the use of this technique is advantageous to the accused who might otherwise face a multiplicity of charges with the consequent increase in the possible maximum penalty.[7] The offender should not, however, obtain an additional benefit, beyond that which might be afforded to the plea of guilty. Rather, the offender is simply to be sentenced for a single offence, with the relevant maximum penalty being accordingly limited. However, the sentence to be imposed is not necessarily, or invariably, to be the sum of the individual sentences which would have been imposed if the ‘rolled-up’ offences had been presented in individual counts.[8]
[6]R v Jones [2004] VSCA 68 [13].
[7]Ibid.
[8]Ibid.
In the present case, Za Lian was to be sentenced on the basis that he was the actual perpetrator of the rape in which he engaged in penile penetration, and also complicit in the rape which he acknowledged had been committed by the third member of the group. Hlawnceu was to be sentenced on the basis that he was complicit in the rapes carried out by Za Lian, and the third member of the group. Both Za Lian and Hlawnceu acknowledged, by their pleas, that this third member of the group had committed rape, with their encouragement and assistance. The fact that he has not yet stood trial, and may ultimately have a defence to the charges brought against him, is of no relevance so far as the respondents to this application are concerned.
The main factors to which a sentencing judge must have regard, when dealing with an offence of rape of this kind, are denunciation, and deterrence. That will ordinarily include both general and specific deterrence. In general, the protection of the community will take precedence, as a sentencing factor, over rehabilitative concerns. The public must be left in no doubt that, when an offender behaves in this manner, he will receive condign punishment.
There can be little doubt that sentences for rape (and other forms of serious sexual offending) have increased somewhat in recent years. That increase accords with, and respects community expectations.
In a related context, sentences for incest have increased substantially since DPP v Dalgliesh (a pseudonym).[9] There, the High Court commented upon the approach to be taken to sentencing for that offence, given that ‘current sentencing practices’ appeared to have become entrenched at too low a level. It is to be noted that, when the matter of Dalgliesh came back to this Court, to be dealt with in accordance with the High Court’s criticisms of sentencing practices for incest in this State, the sentence on a single charge of incest was increased from 3 years and 6 months to one of 7 years and 6 months.[10]
[9](2017) 349 ALR 37 (‘High Court decision of Dalgliesh’).
[10]DPP v Dalgliesh (a pseudonym) [2017] VSCA 360. We would also note the recently decided case of DPP v Shearer (a pseudonym) [2019] VSCA 47, which was an appeal by the Director against sentences imposed on four charges of incest. The individual sentences of 4 years’ imprisonment were increased to 6 years’ imprisonment on each charge, and the total effective sentence from 8 years and 6 months to 10 years and 6 months. A non-parole period of 7 years was fixed. These sentences, though for offences characterised as incest were, in effect, imposed for what could have been characterised as rape. The child in each case had plainly not consented, nor was she old enough to be able to consent.
To some degree, sentences for rape have also been increasing, albeit more incrementally. The reason why those sentences have not increased as dramatically as those for incest may be because sentencing for incest came off a far lower base.
As previously indicated, the prosecution relied heavily upon the decision of this Court in Jurj as establishing relevant sentencing principles when dealing with the offence of rape.
In Jurj, the applicants, RSJ and DM were each convicted of multiple charges of rape, all involving the same victim, T. She was only 14 at the time of the offending. RSJ was convicted of five charges of rape, three as principal offender, and two as aider and abettor, and one charge of sexual penetration of a child under 16. DM was convicted of 10 charges of rape, seven as principal offender, and three as aider and abettor.
RSJ received a total effective sentence of 5 years and 5 months’ imprisonment with a non-parole period of 3 years and 7 months. DM received a total effective sentence of 6 years and 9 months’ imprisonment with a non-parole period of 4 years and 3 months. On a Director’s appeal, DM’s sentence was increased to a total of 12 years and 2 months’ imprisonment, and RSJ’s sentence to a total effective sentence of 9 years and 6 months’ imprisonment.
The offences in question were alleged to have taken place in the early hours of the morning. Shortly after midnight, the offenders offered T a lift from a suburban train station. She had been at a party, and was somewhat intoxicated.
The offenders first drove her to a coffee shop nearby. They then drove to a factory, where DM worked. He had keys to the factory. They went upstairs, where there was a couch and a mattress. On the couch, they each committed numerous acts of sexual penetration, including oral, penile and anal. They told T that she could ‘scream all she wanted because no one would hear her anyway.’[11]
[11]Jurj [11] quoting DPP v Miftode (Unreported, County Court of Victoria, Judge Gucciardo, 25 May 2015) [16].
The offending was described as ‘taking it in turn rapes’.[12] It occurred over several hours, and was unrelenting and remorseless. At trial, RSJ’s defence was that whatever occurred had been consensual. He also claimed that he had acted in the belief that T was over 16. DM’s defence, on the other hand, was that he had not been involved in any sexual conduct with T at all.
[12]Ibid [12].
On the appeal by the Director to this Court, it was noted that T was clearly confused and affected by alcohol. In that sense, she was exceptionally vulnerable. This was not a short episode involving multiple acts of penetration, but rather a course of conduct within which there were separate and discrete acts of rape. In addition, these offences were committed in company. They included one instance of particularly egregious conduct, involving both offenders simultaneously engaging in acts of penetration, oral and anal. No condoms were used. Both offenders displayed a callous and arrogant attitude towards T. She was treated as nothing more than an object for sexual gratification.
The Court observed that, in assessing the gravity of any particular offence of rape, a number of factors would ordinarily be relevant. These included:
· whether the offence was premeditated,
· did the offender act alone or in company?
· the length of the attack,
· whether the victim was raped more than once,
· did the offending involve violence, or threats of violence?
· whether a weapon was used,
· whether the victim was injured,
· whether the victim was humiliated or degraded,
· whether the victim was particularly vulnerable, and
· whether the offender ignored the pleas of the victim.[13]
[13]Ibid [80].
Importantly for present purposes, it was said that even if an attack of the kind carried out in that case could properly be characterised as ‘unpremeditated’ when it commenced, the offence lost that character once the conduct persisted, as it clearly had.
Although there were some mitigating factors present in Jurj, including youth,[14] prospects of rehabilitation, and delay, as well as some degree of mental impairment on the part of RSJ, the Court held that the sentences originally imposed were manifestly inadequate.
[14]At the time RSJ was 23 and DM was 20.
In resentencing RSJ, on each of five charges of rape, the Court substituted individual terms of 7 years’ imprisonment on two charges, and terms of 8 years and 6 months’ imprisonment on the remaining three charges. In the case of DM, the Court substituted individual terms of 7 year’s imprisonment on two charges, 8 years and 6 months’ imprisonment on three charges, and 9 years on the remaining five charges.
It may also be helpful to consider the decision of this Court in Shrestha v The Queen.[15] That was a case in which the appellant had been sentenced, after a trial in the County Court, to 6 years’ imprisonment with a non-parole period of 4 years, on a single charge of rape.
[15][2017] VSCA 364.
The case involved an appeal against sentence alleging manifest excess. The unusual feature of the case lay in the fact that the sentencing judge had expressed disquiet at what he considered to be the inadequacy of sentences in this State for digital rape. It was that observation, by his Honour that formed the basis of a submission to this Court that he had taken into account an irrelevant consideration in sentencing the offender.
The facts of that case were relatively straightforward. In the early hours of a Sunday morning, the appellant drove his car to the carpark of a nightclub. He intended to spy on his girlfriend, who he believed may have been involved with other men. The victim and her sister, who were not known to the appellant, left the nightclub intending to walk to a friend’s house nearby. He followed them in his car, with the headlights off.
The victim separated from her friends, and went to purchase some food from a nearby outlet. The appellant parked his car in a remote corner of a carpark expecting the victim to walk through after leaving the shop. The appellant called out to her as she walked past, but she did not respond. He then grabbed her from behind and pushed her to the ground. He got on top of her, and held her down. She managed to push him off and stand up. He grabbed her a second time, and again forced her to the ground. He straddled her with his legs, and forced his right hand under her skirt and inside her underwear. He inserted two fingers into her vagina and moved them in and out several times. She then managed to force him off her. He ran to his vehicle and drove away.
This Court rejected the submission that the sentencing judge had taken into account an irrelevant consideration, namely, the adequacy of current sentencing practices for digital rape, in sentencing the appellant. It also rejected the submission that the sentence of 6 years’ imprisonment was manifestly excessive.
After summarising the aggravating and mitigating features of the offending, and specifically noting its agreement with the judge’s comment that ‘stalking a woman at night and attacking her when she’s on her own in the dark is incredibly serious’,[16] the Court went on to discuss the adequacy, or otherwise, of current sentencing practices for digital rape.
[16]Ibid [19].
The Court endorsed the judge’s characterisation of the offending, as ‘an upper mid-level example of the offence’.[17] Whether characterisations of that kind are useful may be debated. However, on any view, the gravity of the offence was perfectly obvious.
[17]Ibid [24].
The Director invited the Court to comment upon the impact, if any, that Dalgliesh should have upon sentences for rape, and particularly digital rape. The Court accepted that invitation. It observed:
It is clear that the general run of sentences for digital rape is well below what is necessary to reflect the objective gravity of that offence, and the moral culpability of the offender.[18]
[18]Ibid [30].
The Court stated that there should be an upward adjustment in sentences for offences of digital rape committed in circumstances broadly similar in objective gravity to the offence of which the appellant was convicted. The appeal was dismissed.
The extent to which this Court’s approach to sentencing for rape appears to have altered in recent years may be seen from an examination of DPP v Werry.[19] There, a five member Court considered a Director’s appeal against sentence on one count of rape, for which the respondent had received a sentence of 7 years’ imprisonment, with a non-parole period of 5 years and 1 month.[20]
[19](2012) 37 VR 524 (‘Werry’).
[20]Werry pleaded guilty to a minor drug offence for which he received a short term of imprisonment cumulative upon the 7 years for the rape. That explains the additional month added to what would presumably have been a non-parole period of 5 years.
Werry was a case of ‘stranger rape’, though perhaps categorisations of that kind are of less assistance than focussing upon the particular features present in the individual case. The victim was a 17 year old girl, who had been drinking with her boyfriend at a railway station. They argued, and he left her. Shortly afterwards, she set out on foot to follow him. The respondent, Werry, pulled up beside her in his car. He persuaded her to get in. He asked her whether she was a prostitute, and offered her $500 to have sex with him. She refused. He then stopped at a petrol station where he purchased, among other things, a packet of condoms. He then drove to a reserve and parked at a remote spot. He pulled the victim out of the car and engaged in penile intercourse with her over the course of a few minutes. He then left her sitting on the ground crying, and drove off.
Werry pleaded not guilty at his trial. His defence was consent. On the plea, it was submitted, by way of mitigation that he had used a condom, and that his offending had been of relatively short duration. It was also noted that, for the period July 2003 to June 2008, the median sentence in this State for rape was 5 years’ imprisonment. It was submitted that a sentence not substantially above the median would be warranted.
On the appeal, it was proposed, on behalf of the Director, to argue that then-current sentencing practices for rape were inadequate, and should be uplifted. Curiously, however, the Director did not press for Werry’s particular sentence to be increased, and did not contend that a different sentence should have been passed in his case. In those circumstances, the Court characterised the Director’s appeal as a ‘vehicle for the ventilation of the general issue of the adequacy of current sentencing practices for rape’, and essentially, as seeking nothing more than an advisory opinion, which the Court declined to give.[21]
[21]Werry [7].
It should be noted however, the Court observed that the sentence of 7 years’ imprisonment was ‘clearly within the range’ reasonably available in the circumstances of that case.[22] The Court ordered that the appeal be dismissed.
[22]Ibid [5]
In the three years or so since the High Court delivered judgment in Dalgliesh, this Court has heard close to 20 appeals against sentences for rape. Most of these have been brought by applicants contending that the sentences in question were manifestly excessive. Several have been Director’s appeals.
Not surprisingly, the outcomes in those cases have varied considerably. However, one thing can be said with confidence. The 7 year sentence imposed in Werry would almost certainly not be described today as ‘clearly within range’.
That is not to say that sentences for rape have increased all that dramatically since Dalgliesh. In Djordjic, a case involving drugs, their Honours Beach and Kaye JJA explained the way in which Dalgliesh should be viewed, in its analysis of current sentencing practices in this State.[23] Their Honours commented:
importantly, as the High Court has recently emphasised in Dalgleish, while s 5(2)(b) of the Sentencing Act provides that current sentencing practices are relevant to the determination of a sentence in each case, nevertheless that factor is but one of a number of matters that must be taken into account in determining the appropriate sentence to be imposed in the particular case.[24]
[23][2018] VSCA 227.
[24]Ibid [74].
It should be noted that immediately prior to the passage extracted above, Beach and Kaye JJA had this to say as regards the use of comparable cases in assessing current sentencing practices in accordance with the requirements of the Sentencing Act:
Ordinarily, comparable cases are relevant to reveal the appropriate sentencing range for the offence that is under consideration, and thus to promote consistency of sentences. However, the courts have emphasised that the consistency, that is sought to be achieved, is not some mathematical equivalence of sentences, but, rather, consistency in the application of relevant legal principles. For that reason, so called ‘comparable cases’ are not precedents. Indeed, in the context of sentencing, no two cases can be alike, as the factors that are relevant to the exercise of the discretion in each case, and the weight to be attributed to those factors, vary significantly. While, reviewed as a whole, comparable cases may assist to reveal a possible pattern or range of previous sentences, it has been emphasised that such an examination of comparable cases does not have the consequence that a range or pattern of sentences, revealed by the cases, is necessarily correct, or that the upper or lower limits of those sentences are correct and immutable.[25]
[25]Ibid.
Bearing that admonition constantly in mind, it may still be useful to consider several post-Dalgliesh cases that have been determined by this Court. Indeed, we feel constrained to do so given the reliance, on the part of the Crown below, and in this Court, on at least one such authority as perhaps a useful comparator.
In DPP v Elfata, decided as recently as 21 March 2019, and therefore not the subject of either the plea hearing below, or the written cases filed before this Court, a Director’s appeal against a sentence of 2 years’ imprisonment on a charge of rape was dismissed.[26] That result was all the more unusual in that this sentence was imposed after a contested trial. Nonetheless, it illustrates clearly that there is a broad spectrum of offending in relation to rape, and that exceptional cases can lead to exceptional sentences.
[26][2019] VSCA 63, In DPP v McInnes [2017] VSCA 374, a case decided post-Dalgliesh, a Director’s appeal against a 3 year Community Correction Order, on a charge of rape, was dismissed.
Contrast Bolton v The Queen, where sentences of 10 years and 12 years respectively, after a trial, on two charges of rape (culminating in a total effective sentence of 21 years with a non-parole period of 17 years) were upheld.[27]
[27][2019] VSCA 21.
Other recent examples of lengthy sentences for rape, include the pre-Dalgliesh case of DPP v Granata.[28] There, original sentences of 8 years for individual rapes and a total effective sentence of 17 years with a non-parole period of 13 years were set aside on a Director’s appeal. The respondent, despite having pleaded guilty at trial, was resentenced by this Court to individual terms of 10 years’ imprisonment on the rape charges, and a total effective sentence of 23 years’ imprisonment. A non-parole period of 17 years was fixed.
[28][2016] VSCA 190.
Finally, in this regard, it should be noted that in Tom Gray (a pseudonym) v The Queen,[29] the applicant, who had pleaded guilty to a number of rapes, having abducted the victim, and repeatedly abused her, received individual sentences of 11 years, 10 years, 10 years again, and 8 years, with a total effective sentence of 19 years’ imprisonment, and a non-parole period of 15 years. His application for leave to appeal against that sentence was rejected.
[29][2018] VSCA 163.
An analysis of other recent decisions of this Court in relation to sentencing for rape indicates that sentences of 8 years’ imprisonment, after a trial, have not been uncommon.[30] There are also a number of instances where sentences, both after a plea of guilty and after a trial, of either 6[31] or 7 years’ imprisonment,[32] have been held by this Court to be within range.
[30]Samuels (a pseudonym) v The Queen [2019] VSCA 14; Zhao v The Queen [2018] VSCA 267; Cao v The Queen [2018] VSCA 98.
[31]Wheeldon v The Queen [2018] VSCA 344; Henson (a pseudonym) v The Queen [2018] VSCA 283; Tutchelll v The Queen [2018] VSCA 269; Shrestha v The Queen [2017] VSCA 364.
[32]Forbes (a pseudonym) v The Queen [2018] VSCA 342; Turner (a pseudonym) v The Queen [2018] VSCA 181.
As we have said, however, sentences imposed in other cases, though they may be of some assistance as comparators, are not to be viewed as precedents, and arithmetic consistency is not to be sought with such cases. Rather, it is consistency of approach, and application of principle, that must be the object, when sentencing.
The Director’s submission regarding current sentencing practices for rape
In the Director’s written case, under the heading ‘Maximum penalty’, she said as follows:
31.It is submitted that the learned sentencing judge failed to have sufficient regard to the high maximum penalty prescribed for this offence, namely 25 years, and failed to impose a sentence commensurate with current community expectations for offending of this nature and gravity.
32.The Appellant does not suggest that the learned sentencing judge departed from current sentencing practices. However, current sentencing practices are but one part of section 5(2) of the Sentencing Act. Further, it is submitted that current sentencing practices for “stranger rape” cases, such as the present case, are manifestly inadequate and not commensurate with community expectations in providing sufficient denunciation and general deterrence.
…
34.Since the High Court’s decision in DPP v Dalgliesh, there is now scope to permit greater relative account to be taken of the maximum penalty in circumstances where sentencing practice has not properly reflected the maximum sentences set by Parliament.
During the course of oral argument, the Director acknowledged that, despite what might be thought to have been submitted, when regard was had to paragraph 34 of her written case, she was not seeking to have this Court engage in the kind of general evaluation of current sentencing practices that it has, on occasion, carried out in the past.[33] Rather, she was asking this Court to conclude that the sentences under challenge in this case were manifestly inadequate by reason of the objective gravity of the offending, no doubt with a view to producing the result that, in future, rape cases of this kind would be dealt with more appropriately than, in her submission, had been done in this case.
[33]For example, in Winch v R (2010) 27 VR 658 a sentence imposed in relation to ‘glassing’ was uplifted incrementally by this Court. This Court considered the prevalence of ‘glassing’ attacks to afford primacy to general deterrence in sentencing. See also, Ashdown v R (2011) 37 VR 341 which was heard with Winch and concerned the sentence imposed for a count of recklessly causing serious injury by way of a single punch. Finally, see Hogarth v The Queen [2012] VSCA 302 for the approach to be taken when sentencing for ‘confrontational aggravated burglary’.
Conclusion
As we have indicated, these were extremely serious offences. These rapes were committed against a vulnerable woman, homeless, and through necessity ‘sleeping rough’. They were committed in company, itself a significant aggravating factor. The victim was justifiably shocked, humiliated, and degraded by what occurred. She suffered, and continues to suffer, real and lasting harm.
In addition, the charges were ‘rolled-up’, which meant that each of them had to be viewed as more serious than would be the case in relation to a single act of sexual penetration. The offences were, as was acknowledged, very grave indeed.
On any view, the sentence of 8 years and 6 months’ imprisonment for Za Lian, and the sentence of 7 years’ imprisonment for Hlawnceu were lenient. Had we been sentencing these offenders, they would certainly have received heavier sentences than these.
Of course, that is not the issue before this Court on a Director’s appeal. The question which we must determine is whether these sentences were wholly outside the range reasonably available to the sentencing judge. If the Director’s appeal is to be allowed, we must be persuaded that not only were these sentences inadequate, but manifestly so. Indeed, it has been said that such inadequacy must reflect ‘error of principle’.[34]
[34]High Court decision of Dalgliesh [53].
The objective gravity of the offending in this case is not in issue. Of course, that is not the sole determinant in considering whether the sentences imposed were wholly outside the range. Nor is the fact that the Director, in paragraph 32 of her written case, filed in this Court, very fairly acknowledged that she did not suggest that the sentencing judge departed from current sentencing practices, in so far as they are relevant, in relation to these offenders. Nonetheless, that concession is relevant, and must be taken into account because current sentencing practices are still required to be taken into account.
Most importantly, as the sentencing judge found, there were matters personal to each respondent that were significantly mitigating in this case. They included the early pleas of guilty which, of course, had utilitarian value. More importantly, these pleas spared the victim from having to go through the ordeal of giving evidence. In addition, as the judge found, they reflected genuine remorse on the part of each respondent.
The respondents were also entitled to have taken into account, to some degree, the fact that they were very young at the time of the commission of these offences.[35] They had no prior convictions, and were able to call in aid unusually powerful evidence of good character. Their prospects of rehabilitation had to be regarded as good, as the judge properly found.
[35]The respondent Za Lian was 22, the respondent Hlawnceu was 20. See generally Azzopardi as to the relevance of youth as a mitigating factor. See also, Mills.
In addition, the uncertainty concerning the immigration status of the respondents, and the fact that they were likely to be detained in immigration detention for an indefinite period, was an important and significant mitigating factor in determining the sentence to be imposed on each of them. During their young lives, they had both already departed from their homeland as refugees from it. As a consequence of their offending in this case, they each faced the very real prospect of being deported from the country in which they have found refuge and in which they had been accepted. In addition, they each faced the real possibility, if not probability, of spending some indefinite further time (after the completion of their prison sentences) in immigration detention, following which they may well be required to leave Australia for some other unknown destination. The uncertainty which would hang over each of the two respondents while they serve their prison terms would, realistically, add significantly to the burden of the term of imprisonment to be served by each of them. Moreover, the prospect — the likelihood of which cannot, at this time, be determined — that they will ultimately be deported from this country could well constitute a further punishing circumstance arising from the offences to which they each pleaded guilty. In that way, and for those reasons, the issues relating to the immigration status of each of the two respondents was, as already stated, a significant mitigating factor in their favour.[36]
[36]Guden v The Queen (2010) 28 VR 288, 294 [25] (Maxwell P, Bongiorno JA and Beach AJA); Konamala v The Queen [2016] VSCA 48 [34]–[36] (Maxwell P, Redlich and Priest JJA).
We are fully cognisant of the harm that these offences caused to the victim. She was treated in an outrageous manner. Her victim impact statement eloquently outlined her loss of trust in others, as well as her ongoing stress and anxiety.
The task of sentencing is always difficult. This was a particularly troubling case. As we have said, we would not, ourselves, have imposed the sentences that the judge below regarded as appropriate. However, the task of sentencing an offender is entrusted, primarily, to judges in trial courts. The role of this Court, when called upon to do so is a limited one. It is to consider the lawfulness of the particular exercise of the sentencing discretion, always bearing in mind the breadth of that discretion, and acting in accordance with the principles authoritatively laid down by the High Court in House v R.[37]
[37](1936) 55 CLR 499.
In this appeal, the Director did not contend that the judge fell into any specific error. She did not submit that her Honour took into account any irrelevant consideration, or failed to have regard to any matter to which she was bound to have regard, other than perhaps the maximum sentence of 25 years for rape, to which the judge did specifically refer.
We are not persuaded that, in the particular circumstances of this case, the sentencing discretion miscarried so as to warrant the intervention of this Court. The sentences, light as they were (and certainly somewhat lower than we ourselves would have imposed) does not mean that they meet the threshold requirement for an appeal of this kind, namely, manifest inadequacy.
The fact that we would have imposed longer (though not dramatically longer) sentences had we been sentencing these respondents is not sufficient to vitiate these sentences. They may have been at the bottom of the range reasonably available to the sentencing judge. However, they were not wholly outside that range.
Accordingly, this appeal must be dismissed.
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