El-Waly v The Queen
[2012] VSCA 184
•16 August 2012
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No S APCR 2010 0463
| YASER EL-WALY | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | NEAVE and WEINBERG JJA and BELL AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 28 June 2012 |
| DATE OF JUDGMENT | 16 August 2012 |
| MEDIUM NEUTRAL CITATION | [2012] VSCA 184 |
| JUDGMENT APPEALED FROM | DPP v El-Waly (Unreported, County Court of Victoria, Judge Mullaly, 6 December 2010) |
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CRIMINAL LAW — Appeal against conviction — Appellant convicted after trial of one count of abduction for the purpose of sexual penetration (count 1) and one count of rape (count 2) — Presentment amended to allege penetration by part of appellant’s body, penile penetration or penetration by unknown object — Whether trial judge erred in allowing amendment in light of complainant’s evidence that penetration penile — Jury directions — Jury directed that unanimity not required as to mode of penetration— Whether jury unanimity required — Appeal dismissed — R v Walsh (2002) 131 A Crim R 299, Bui v The Queen [2011] VSCA 404, R v Klamo (2008) 18 VR 644 considered; R v Castles (2007) 17 VR 329 approved.
CRIMINAL LAW — Application for leave to appeal against sentence — Appellant sentenced to four years and six months’ imprisonment on count 1 and 11 years’ imprisonment on count 2 — two years and six months of sentence on count 1 cumulated upon sentence on count 2 making total effective sentence of 13 years and six months with non-parole period of 11 years — Whether sentence manifestly excessive — Whether appellant doubly punished — Leave to appeal granted — Appeal allowed — Appellant resentenced to three years’ imprisonment on count 1 and ten years and ten months’ imprisonment on count 2 — Total effective sentence of 12 years and 4 months’ imprisonment —Non-parole period of nine years and four months’ imprisonment —Pearce v The Queen (1998) 194 CLR 610 applied.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr M D Stanton | Victoria Legal Aid |
| For the Crown | Mr T Gyorffy SC | Mr C Hyland, Solicitor for Public Prosecutions |
THE COURT:
After a trial in the County Court at Melbourne, the appellant, Yaser El-Waly, was convicted of one count of abduction with intent to take part in an act of sexual penetration, and one count of rape. He was sentenced on the count of abduction to four years and six months’ imprisonment, and on the count of rape to 11 years’ imprisonment. Two years and six months of the sentence imposed on the count of abduction were cumulated upon the sentence for rape, making a total effective sentence of 13 years and six months’ imprisonment. The sentencing judge fixed a non-parole period of 11 years.
The appellant now appeals, by leave, against his conviction. The question whether he should be granted leave to appeal against sentence has been referred to this Court for determination.
The background facts may be briefly stated. On 20 July 2006, at approximately 10am, the complainant, then aged 20, was walking along a footpath beside a service road in a Melbourne suburb. She is legally blind, with no sight in her right eye and only limited sight in her left eye. As it happened, this was the first time she had ever walked alone in public. She was en route to a medical centre in a nearby shopping complex. She had a walking cane with her.
The appellant was driving a white tray truck when he came upon the complainant. He had driven his truck in the wrong direction along the service road in order to approach her. He spoke to the complainant while he was still in the driver’s seat. He then alighted and approached her. He put his arm around her waist and grabbed her hand. He told her that he was from a care centre, and that he would assist her. He escorted her to the passenger side of the truck, and then forced her to get in. He got into the driver’s side and drove off.
The appellant told the complainant that he was taking her to the shopping complex. Instead, he drove first to a nearby park and then to a housing estate in which a number of houses were under construction. He stopped near a particular house that was partly built and guided the complainant to the garage. He pulled the garage door down, and then used a large rock on the site to keep it closed.
Inside the garage the appellant seized the complainant’s cane. He threw her bag aside and began hugging and touching her all over her body and between her legs. She protested, and asked him what he was doing. She told him to let her go and attempted to kick him in the groin. The appellant said to her, more than once: ‘calm down or I may have to drug you’.
The complainant said that the appellant pushed her onto the ground and undressed her. She said she had a memory of him putting on a condom. She was trying to close her eyes, and not look. The appellant then raped her by penetrating her vagina with his penis while she lay on the ground.
The Crown case had always been that the penetration was either penile or digital, and that it mattered not which. However, its case had originally been particularised as one of penile rape, or rape by some object. The presentment was subsequently amended to insert a reference to penetration by ‘part of the [appellant’s] body’. It seems that this amendment was made because the Crown entertained doubt as to whether an act of digital penetration could fall within the particulars as originally drawn. It should be noted that the sentencing judge was entirely satisfied that the penetration was penile.[1]
[1]DPP v Yaser El-Waly (Unreported, County Court of Victoria, Judge Mullaly, 6 December 2010) [11].
When the attack was over, the appellant drove the complainant to the vicinity of the medical centre. He apologised to her during the drive back saying words to the effect that he felt the need for sex and was ‘just looking for someone to do it with’.
At the medical centre the complainant immediately reported the rape to her doctor. She was taken to a hospital and examined there. It was found that she had two small abrasions to her vagina and a small amount of blood in the area of those injuries. Expert evidence was given at the trial that this was indicative of recent vaginal penetration. However, it could not be said whether the penetration had been penile, digital, or by some object. Likewise, it could not be said whether the penetration had been consensual or non-consensual.
Later that day, the complainant took police to the garage where she had been attacked. There, a condom was found. DNA extracted from that condom was later linked to the appellant.
Approximately two years later, the appellant was arrested in New South Wales. He had committed a sexual assault in 2002 in Western Australia. As a result, authorities in that State had obtained his DNA. Co-operation between the various State police forces led to his DNA being matched to that extracted from the condom.
After his arrest, the appellant declined to take part in a formal record of interview. He made a statement, however, to the effect that some two years earlier, in Keysborough, he had been involved in a sexual encounter with a girl. He claimed that the contact was consensual, but denied penetration. He said that he had only engaged in masturbation. The Crown led evidence of that statement at trial.
In essence, the defence case was that the complainant had consented to accompany the appellant in his vehicle, that she had consented to sexual activity, but that there had been no actual sexual penetration. The appellant did not give evidence.
Grounds of Appeal - Conviction
The appellant originally sought to rely upon some five grounds in support of his appeal against conviction. He was granted leave to appeal upon one ground only. That ground is in the following terms:
Ground 1: With regard to the possibility of digital penetration by the applicant of the complainant’s vagina, the learned trial judge erred in:
i) allowing the Crown to amend the presentment in circumstances where the contemporaneous statement of the complainant was clear that the method of alleged penetration was penile;
ii) leaving the possibility of digital penetration open to the jury in circumstances where the complainant had given direct and unequivocal viva voce evidence that she had not been digitally penetrated and that the penetration had been penile;
iii) leaving the possibility of digital penetration open to the jury in circumstances where the jury was directed to disregard the possibility of penetration by an ‘unknown object’; and
iv) directing the jury that it did not need to be unanimous about the method of penetration.
The appellant also sought leave to appeal against conviction upon the ground that the verdicts were unreasonable and could not be supported having regard to the evidence. Rather than leave being granted by a single judge of this Court, that ground was referred to the Court as presently constituted for determination.
Grounds of Appeal – Sentence
The appellant originally sought leave to appeal against sentence on some eight grounds. However, in his written case, he relied instead upon four grounds which were in the following terms:
Ground 1: The learned sentencing judge erred in imposing sentences that were manifestly excessive, in particular; (i) the sentence of 4 years, 6 months’ imprisonment on count 1; (ii) the sentence of 11 years’ imprisonment on count 2; and (3) the non-parole period of 11 years.
Ground 2: The learned sentencing judge erred in giving insufficient weight to the principle of totality, and in failing to ensure that the sentences imposed did not doubly punish the applicant with regard to the circumstances of the offending.
Ground 3: New evidence concerning the burden of the applicant’s imprisonment shows that a different sentence should be passed.
Ground 4: The learned sentencing judge erred in imposing a non-parole period that is disproportionate to the head sentence.
As we have noted, the question whether leave to appeal against sentence should be granted was referred to this Court.
The appellant’s submissions
It was submitted, in support of ground 1, that the trial judge had erred in granting leave to the Crown to file over a fresh presentment which amended count 1 to specify that the appellant had sexually penetrated the complainant ‘by introducing his penis, unknown object or part of his body into her vagina’.
Counsel who appeared on behalf of the appellant at trial initially opposed the amendment, but withdrew his objection in light of the prosecutor’s reliance upon R v Castles.[2]
[2](2007) 17 VR 329 (‘Castles’).
It was said that the depositional material on the part of the complainant made it clear that, at about the time of the incident, she had no doubt that the appellant had inserted his penis into her vagina. She adhered to that evidence at the trial. She said that she saw the appellant put a condom on his penis, and that he put his penis into her vagina. Her evidence was clear, and unequivocal, on that point.
It was submitted that the difficulty created by this account was that there was no adequate explanation as to why, when the condom was examined, it had on it no DNA from the complainant. The appellant called Dr Brian McDonald, a consultant in molecular genetics with 20 years’ experience in the testing, analysis and interpretation of DNA, mainly in the field of maternity and paternity testing. Dr McDonald testified that vaginal fluid was recognised as one of the higher yielding sources of DNA. Accordingly, it would be expected that the complainant’s DNA would have been on the condom if there had been penile penetration.
On the other hand, the Crown called Ms Fiona O’Toole, a forensic scientist at the Victoria Police Forensic Service Centre. She gave a series of possible reasons why the complainant’s DNA may not have been found on the condom. First, any DNA present may have degraded, or such DNA as was present may have been below the detection limit. Second, whether a person leaves any DNA depends on many factors, including the surface to which it is transferred. In particular, she said that moisture may cause less DNA to be recoverable from an item. The appellant submitted that Ms O’Toole’s evidence lacked plausibility.
It was submitted that the trial judge had no logical justification for directing the jury that there was no basis for a finding that there had been penetration by an ‘unknown object’, as his Honour did, but at the same time leaving to the jury the possibility of a finding of digital penetration. The decision in Castles, where the complainant was unable to ‘throw any light’[3] on the issue of penetration, was said to be distinguishable in that respect. In those circumstances, a verdict that essentially amounted to a finding that penetration had occurred by an unascertained method was perfectly open. It was submitted that such a verdict was not open where the evidence was unequivocal that any penetration had to be penile.
[3](2007) 17 VR 329, 330.
It was further submitted that by leaving the issue of digital penetration to the jury as a possible finding, the trial judge had brought about a miscarriage of justice. That was because the effect of leaving that matter to the jury was to open a pathway of reasoning to guilt that outflanked the doubt cast by the evidence about the absence of the complainant’s DNA on the condom.
Moreover, it was submitted that the jury should not have been directed that they did not need to be unanimous about the method of penetration. That direction was repeated after a jury question on the issue.
With regard to the ground upon which leave was not granted, but which was referred to this Court, it was submitted that the jury had to have entertained a reasonable doubt as to whether the appellant had committed the offences alleged. In particular, cross-examination of the complainant had raised a number of doubts about her credibility, some of them based on prior inconsistent evidence given at committal.
It is unnecessary to do more than summarise some of the salient points upon which the appellant relies. He points to the following alleged inconsistencies in the complainant’s evidence:
i) the manner in which the complainant was ‘guided’ to the truck;
ii) whether the complainant was crying;
iii) whether the complainant saw the applicant use a condom;
iv) whether the complainant saw the applicant’s penis;
v) the duration that the complainant was in the cabin of the vehicle;
vi) whether the applicant assisted the applicant to close the shed door;
vii) whether or not the applicant [lay] on top of her;
viii) the manner of penetration;
ix) the purported post-offence conduct of the applicant; and
x) whether or not the applicant made a threat concerning a gun.
Finally, in support of this ground, it was submitted that the expert evidence given by Dr McDonald had to raise a doubt as to whether there had been penile penetration. That of itself cast doubt upon the credibility of the complainant, and should have led the jury to reject her evidence when considering the pivotal question of consent.
In relation to the referred application for leave to appeal against sentence, it was submitted that both the sentence of four years and six months on the count of abduction, and the sentence of 11 years on the count of rape, were manifestly excessive, as was the non-parole period of 11 years.
It was noted that the Crown had proffered a total effective sentence of between nine and 11 years with a non-parole period of between seven and nine years when asked to provide a MacNeil-Brown[4] range, and that the sentencing judge had gone well above those figures.
[4](2008) 20 VR 677.
It was accepted that the offending was ‘most serious’ and had had a devastating effect on the complainant and her family. It was also accepted that the appellant had a significant relevant criminal history. Nonetheless, it was said that the very limited duration of penetration, which the complainant had agreed at committal had been a ‘split-second’, the absence of gratuitous violence, and the personal background and history of the appellant, warranted a lesser sentence. So too, it was said, did the fact that the appellant was in protective custody, as to which affidavit evidence was subsequently filed, and which forms the basis of proposed ground 3. Finally, it was submitted that the sentence imposed was not consonant with current sentencing practices as discussed, for example, in Hasan v The Queen[5] and other authorities.[6]
[5][2010] VSCA 352.
[6]Singh v The Queen [2011] VSCA 317; R v Gill [2010] VSCA 67; DPP (Vic) v Maynard [2009] VSCA 129.
In support of proposed ground 2, it was submitted that in his orders for cumulation the sentencing judge had failed to give sufficient weight to the principle of totality, and also failed to ensure that the sentences imposed did not ‘doubly punish’ the appellant.
It was acknowledged that, on the plea, there had been a concession that some cumulation between the counts was appropriate despite the offending conduct having been part of the one episode. It was also acknowledged that the sentencing judge had been careful to state that the appellant should not be doubly punished.
Notwithstanding that, it was submitted that his Honour must have taken into account the circumstances of each count when determining the sentences to impose upon them both. The objective circumstances of the abduction, including its relatively short duration and the absence of gratuitous violence and humiliation, meant that the circumstances of the rape must have been taken into account to some degree when determining to fix a sentence of four years and six months’ imprisonment for an offence that carried a maximum of only ten years. Moreover, it was said that it was contrary to the principle of totality to add a further two years and six months to an already substantial sentence of 11 years for rape.
Finally, it was submitted that the non-parole period of 11 years was disproportionately high when considered against the head sentence of 13 years and six months. In that regard, it was noted that the non-parole period was approximately 81 per cent of the total effective sentence.
The respondent’s submissions
It was submitted on behalf of the Crown that the trial judge had correctly applied Castles, and that his Honour’s decision to permit the presentment to be amended had been unimpeachable. At no time had it been suggested by the defence at trial that the amendment would, in some way, prejudice the appellant, or cause any detriment to the case for the defence. It was further submitted that the Crown had been entitled to put its case on the basis of either penile or digital penetration because there were some elements of uncertainty as to that matter in earlier accounts given by the complainant, notwithstanding the fact that she was firm in her evidence at trial that the penetration had been penile.
In the course of argument before this Court, the Crown submitted that the jury had been correctly directed that they need not be unanimous as to the mode of penetration, but only as to fact of penetration itself.
With regard to the referred ground relating to the verdicts being unreasonable, the Crown submitted that the case presented to the jury had been a powerful one. The very notion underlying the defence, that a visually impaired woman on her way to a medical appointment would voluntarily enter a stranger’s truck and accompany him to a garage on a construction site to have him put on a condom and masturbate in her presence, was ludicrous. No jury could accept such a scenario, yet that was the defence put forward.
As regards the supposed inconsistencies in the complainant’s account upon which the appellant relied, the Crown submitted that, on a closer examination, many of them were marginal and entirely explicable. They did not cast significant doubt upon her credibility. Rather, she was a truthful and reliable witness whose evidence was essentially unshaken.
The Crown submitted that the absence of the complainant’s DNA on the condom had been adequately explained by its expert, Ms O’Toole. This was an issue that was squarely before the jury, which they were entitled to determine.
In relation to sentence, the Crown submitted that this was a ‘very serious example of an abduction’ for sexual penetration, coupled with a grave instance of rape. The complainant was a visually-impaired young woman who, it seemed, had never previously had sexual intercourse. These factors took the case well outside the normal or median range of sentences for these offences.
It was further submitted that these were separate and distinct offences, and that a significant measure of cumulation between them was warranted. It was said that the principle of totality had not been infringed, and that the total effective sentence was within the permissible range.
With regard to the affidavit material upon which the appellant relied regarding the circumstances of his imprisonment in protective custody, the Crown ultimately did not object to its reception, but submitted that it did not warrant any interference by this Court with the sentence imposed.
Finally, it was submitted that there was no error in fixing a non-parole period of 11 years relative to a total effective sentence of 13 years and six months.
Appeal against conviction
Ground 1
As earlier outlined, this ground asserts that the trial judge erred in both permitting the presentment to be amended to include reference to penetration by ‘part of the [appellant’s] body’ (in addition to penetration by the appellant’s penis or by an ‘unknown object’), and in directing the jury that they need not be unanimous as to the precise method of penetration.
The case ultimately went to the jury on a somewhat narrower basis. The trial judge directed them that the case had to be one of either penile penetration, or digital penetration. In other words, his Honour withdrew from their consideration the possibility that there had been penetration by some ‘unknown object’.
As amended, the presentment specified that the appellant had:
… intentionally sexually penetrated [the complainant] by introducing his penis, unknown object or part of his body into her vagina without her consent while being aware that she was not consenting or might not be consenting.[7]
[7](emphasis added).
As we have earlier indicated, counsel for the appellant at trial withdrew his objection to the presentment in that form in light of the decision in Castles.
In that case, Bongiorno J (as his Honour then was) rejected a submission that it would be duplicitous to amend a presentment to allege ‘penetration by the accused of the vagina of the victim, using his penis, a part of his body or some other object’.
His Honour said:
[i]t seems to me that to allege an act of sexual penetration, as is sought to be effected in this case by the amendment proposed by the prosecutor, is to allege only one offence. To particularise the method of penetration by reference to three of the possibilities created by s 35 [of the Crimes Act 1958] is to do no more than to advise the accused that the Crown will prove a penetration within the meaning of s 35 of the Act but will not be able to prove any particular characteristic of such penetration as it might be able to do in another case.[8]
[8](2007) 17 VR 329, 332.
Bongiorno J noted that there was in fact no uncertainty as to the real allegation the prosecution sought to prove, and consequently no prejudice to the accused.[9]
[9]Ibid. See generally Rixon v Thompson (2009) 22 VR 323, 327, 341 (Maxwell P, Weinberg JA and Kyrou AJA); Walsh v Tattersall (1996) 188 CLR 77, 104-112 (Kirby J); R v S (1989) 168 CLR 266, 285 (Gaudron and McHugh JJ).
The respondent contends that the trial judge in this case correctly applied Castles, and that ground 1 should therefore not succeed.
We think that submission is correct, and that the result in Castles is amply supported by authority. In this case, the jury was presented with various modes of penetration, any one of which, if accepted, was sufficient to make out the one offence of rape. In those circumstances, the relevant question is whether the trial judge was correct to direct the jury that they were not required to be unanimous as to the precise mode of penetration. It is important to note that no direction as to unanimity was sought by the appellant’s trial counsel in this case.
In R v Walsh, Phillips and Buchanan JJA, having conducted an extensive analysis of authority, distinguished between two classes of case:
The cases give rise to two situations at least … The first is that exemplified by the cases concerning murder and manslaughter, where, when alternative legal bases of guilt are proposed by the Crown but depend substantially upon the same facts, there is no need for a direction on unanimity about one or other or more of those bases, at least if they do not "involve materially different issues or consequences". (How far in cases of murder or manslaughter this qualification extends - having regard especially to Clarke and Johnstone which has been long accepted in Victoria and to the similar practice in New South Wales - is of no present relevance). The second situation is where one offence is charged, such as obtaining property by deception, but a number of discrete acts is relied upon as proof and any one of them would entitle the jury to convict. If those discrete acts go to the proof of an essential ingredient of the crime charged, then the jury cannot convict unless they are agreed upon that act which, in their opinion, does constitute that essential ingredient. In this type of case, much will depend "upon the precise nature of the charge, the nature of the prosecution's case and the defence and what are the live issues at the conclusion of the evidence".[10]
[10](2002) 131 A Crim R 299, 316-7 (emphasis added) (citations omitted).
The question of which of the two categories outlined above applies in any case is not always an easy one. The issue was recently considered by this Court in Bui v The Queen.[11] The appellant in that case had pleaded guilty to one count of kidnapping and one count of unlawful imprisonment. He was found guilty, after a trial, of murder. The appellant sought leave to argue that the trial judge had ‘erred in failing to direct the jury that they must be unanimous as to the essential facts relied upon in proof of each element constituting the murder count.’ It was said that some members of the jury might have been satisfied beyond reasonable doubt that the appellant (together with his co-offender) ‘had agreed to inflict really serious injury on the victim and other members of the jury might have been satisfied beyond reasonable doubt that [the appellant] had aided and abetted [a co-offender] to kill the victim’.[12] It was said that the factual basis for the conviction was therefore uncertain.
[11][2011] VSCA 404.
[12]Ibid [139].
Neave JA, with whom Redlich and Hansen JJA agreed, in rejecting the appellant’s application for leave to appeal against conviction, said:
In my opinion, this case involves ‘alternative legal formulations of liability which rests on the same or a substantially similar factual foundation.’[13] Here the Crown relied on the evidence of Johnston and other circumstantial evidence to prove that [the appellant] was guilty of murder, either because he had agreed with Adam Hargrave to inflict really serious injury on Daou or because he had aided and abetted Adam Hargrave to kill the victim. The alternative bases of criminal liability did not involve materially different issues or consequences.[14]
[13] Michaels v State of Western Australia [2009] WASCA 174 citing Mouritz v State of Western Australia [2006] WASCA 165, [9] –[17], [28].
[14]Ibid 168.
Similar issues were also considered by this Court in R v Klamo.[15] In that case, this Court quashed the appellant’s conviction for manslaughter on the basis that the trial judge erred in failing to direct the jury that they must be unanimous as to which of two alternative acts (either shaking the infant victim on the night of his death, or shaking him on a previous occasion) was the basis of their decision to convict. Maxwell P said:
Although the presentment charged only that the applicant had killed the child, the case against him was that he was guilty of manslaughter by dangerous and unlawful act. Proof of an act having both those characteristics was essential to conviction. The prosecution relied on – and the judge left to the jury – two ‘discrete acts’, some days apart, each of which was said to be capable of constituting the crime charged. On the authority of Walsh – and the cases on which the analysis was based – the jury could not convict unless they were ‘agreed upon that act which, in their opinion, does constitute’ the crime.
[15](2008) 184 A Crim R 262 (‘Klamo’).
A similar result had earlier been reached in R v Trotter[16] in which a conviction for indecent assault on a person under 16 was set aside. The complainant in that case had given evidence of two assaults, one in a bedroom and another in a bathroom. The Court of Criminal Appeal said:
Whilst it is clear that the jury must have been unanimous that the applicant had committed an indecent assault… it is impossible to know whether there was unanimity on the part of the jury in respect of one or other of the two acts of the indecent assault. All members of the jury might have been unanimous on the fact that the applicant had committed an indecent assault … but some members of the jury might have arrived at that conclusion on the basis of the bathroom assault and others on the basis of the bedroom assault. There is no way of knowing which was the act which the jury found to be an indecent assault… In our view, then, the conviction of indecent assault is uncertain and there has been a miscarriage of justice.[17]
[16](1982) 7 A Crim R 8 (‘Trotter’).
[17]Ibid 18 (McInerney, Anderson and Gobbo JJ).
We are of the view that this case is relevantly distinguishable from both Trotter and Klamo. The question in the present case was not so much whether one of two truly separate acts was relied upon by the jury, but the mode of perpetrating the single act in question, namely penetration. In other words, this is not a case where ‘a number of discrete acts is relied upon as proof and any one of them would entitle the jury to convict’.[18]
[18] Walsh (2002) 131 A Crim R 299, 314 (Phillips and Buchanan JJA).
The question of the need for a direction on unanimity in this case must, as was recognised in Castles, be considered in light of the statutory provisions relating to the offence of rape. Under s 35 of the Crimes Act 1958, sexual penetration can be effected by any one of a number of methods which are sufficient to make out an offence under s 38(1).
Further, the various modes of penetration asserted do not ‘involve materially different issues or consequences’.[19] It is true that the jury faced different obstacles in reasoning to either digital or penile penetration in this case. Owing to the expansive definition of ‘sexual penetration’ in s 35 of the Crimes Act, however, there is only one possible consequence if either of those modes of penetration is demonstrated: a finding of guilt within the terms of the statutory offence of rape in s 38. In those circumstances, unanimity on the precise mode of penetration was unnecessary.
[19]Ibid 312 (Phillips and Buchanan JJA); Michaels v The State of Western Australia [2009] WASCA 174.
The provisions of the Crimes Act cannot be ignored. Their importance in this context was correctly recognised in Castles. The approach taken in that case reflects the observation by Phillips and Buchanan JJA in Walsh that whether a unanimity direction is required depends to a large extent upon the ‘precise nature of the charge’.[20]
[20](2002) 131 A Crim R 299, 316.
We do not think the appellant’s argument that Castles can be distinguished on the basis that in that case the complainant could not ‘throw any light’ on the issue of the method of penetration. It was said that in the present case there was a notable difference in the quality of evidence supporting a finding of penile, as opposed to digital, penetration owing to the complainant’s clear evidence on that point. Arguments as to quality of the evidence do not detract from the generality of Castles. Irrespective of the quality of the evidence pointing to any particular conclusion (at least so far as there is a general basis for a finding of digital penetration), the question of the manner of penetration was properly a matter for the jury’s consideration.
In the course of argument, we were taken to the decision of the English Court of Appeal in R v K.[21] That case concerned the trial judge’s decision to permit the Crown to amend the indictment to refer not simply to vaginal rape, but to rape either by penetration vaginally or anally. The evidence was equivocal as to whether the penetration was anal or vaginal. The Court said:
We have no doubt that [the Crown’s submission] is correct. The rules in relation to duplicity are essentially rules which are intended to ensure fairness to a defendant in being able to know and understand what the case against him is and to enable a jury’s verdict to be clear and understandable for the purposes of sentence… The only question of doubt was whether that one act of penetration was of the vagina or of the anus. Whether it was one or the other was of no materiality in itself. The defendant denied that the act had taken place at all. It accordingly caused him no prejudice that there was the possibility of doubt about which orifice had in fact been penetrated.[22]
[21][2009] 1 Cr App R 24.
[22]Ibid [11].
The respondent submitted that the reasoning in that case is applicable in the circumstances of this case. The decision appears to us to be effectively an affirmation of Castles, and to provide further support for the conclusion we have reached.
We consider that there is no merit in the balance of ground 1, which variously asserts that the judge erred in leaving the possibility of digital penetration to the jury in circumstances where the complainant gave evidence of penile penetration and penetration by ‘unknown object’ had not been left to the jury.
There was no uncertainty as to the case the appellant had to meet. At all times, he faced an allegation that he had sexually penetrated the complainant without her consent, while aware that she was not consenting or might not be consenting.
We think that there is nothing in the appellant’s point about a perceived inconsistency in leaving digital rape to the jury, but not leaving rape by an ‘unknown object’. As the trial judge explained to the jury, rape by an ‘unknown object’ was simply ‘not the way the evidence came out’. There was, for example, no object adverted to in the evidence relevantly said to have been used to penetrate the victim, and none discovered at the scene. In any event, removing the matter from the jury’s consideration could not have in any way prejudiced the appellant.
Further, there was a basis for leaving digital penetration to the jury. Notwithstanding that the complainant’s evidence was that the penetration was penile, it was nevertheless open to the jury to conclude that she had been mistaken. First, the evidence of Dr Nicola Cunningham was that the complainant’s injuries were consistent with either penile or digital penetration. Secondly, the complainant’s evidence was that she had shut her eyes at some point during the attack, and so may not have been aware of the precise mode of penetration at that time. Thirdly, a conclusion of digital rape might have been open depending on the view the jury ultimately took as to the DNA evidence.
We would therefore dismiss ground 1.
Proposed Ground 2
This proposed ground, which alleges that the verdicts are unreasonable and cannot be supported having regard to the evidence, can be quickly disposed of.
The test to be applied is that set out in M v The Queen, where Mason CJ, Deane, Dawson, Toohey and Gaudron JJ said:
Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.[23]
[23](1994) 181 CLR 487, 493.
As the respondent’s submissions on this ground point out, and as we have noted above, the defence case was effectively that the complainant, while on her way to visit her doctor, voluntarily got into a stranger’s truck and accompanied him to a construction site where that stranger then masturbated in her presence. Counsel for the appellant submitted that that was not necessarily fanciful. We reject that submission.
We also reject the appellant’s reliance on the inconsistencies said to be inherent in the complainant’s evidence. The jury had the opportunity to witness the complainant give evidence. The inconsistencies raised by the appellant’s counsel were put to the complainant in cross-examination. The jury evidently accepted her evidence as to the abduction and rape as truthful. The jury were entitled to accept her explanation that she had remembered further details of the event following her initial statements to police.
So too did the jury have the benefit of witnessing both the appellant’s expert and the Crown’s expert give evidence as to absence of the complainant’s DNA on the condom. There was no basis for dismissing the evidence of Ms O’Toole on this point as implausible. The jury were clearly not bound to accept the evidence of Dr McDonald.
On the whole of the evidence, we consider that it was plainly open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of both counts on the presentment.
We would therefore refuse the appellant leave to appeal against conviction on ground 2.
Application for leave to appeal against sentence
As noted earlier, the appellant relies on four grounds in support of his application for leave to appeal against sentence.[24]
[24]Set out above at [17].
Ground 1
Ground 1 of the appellant’s application for leave to appeal against sentence asserts that the sentences imposed on each count and the non-parole period were manifestly excessive.
In our opinion, the sentence imposed on count 1 of four years and six months’ imprisonment was manifestly excessive. However, the sentence imposed on count 2 was within range.
The abduction was without doubt a serious offence involving, as it did, the deprivation of a particularly vulnerable victim’s liberty, with the intention of taking part in an act of sexual penetration. It must be borne in mind, however, that the abduction itself was carried out without gratuitous violence, and indeed without the use of any significant force. No threats of violence were made to compel the complainant to enter the appellant’s truck and, unlike the position in many other cases, no weapon was used. Moreover, the abduction occupied only a relatively short period of time.
A sentence of the order imposed, for an offence carrying a maximum penalty of ten years was, in the circumstances, ‘wholly outside the range of sentencing options available to the sentencing judge’.[25]
[25]DPP v Karazisis (2010) 206 A Crim R 14, 44 (Ashley, Redlich and Weinberg JJA) citing R v Boaza [1999] VSCA 126, [42] (Winneke P).
As we have said, the sentence of 11 years on count 2, severe though it was, does not strike us as having been manifestly excessive. Indeed, even though we have concluded that the sentence on count 1 should be reduced, with implications for the total effective sentence and the non-parole period, we are not persuaded that any different sentence on count 2 ought to be passed.
The appellant contended that the sentence of 11 years was outside the range, in part, at least, because it was not ‘consonant with current sentencing practices’.[26]
[26]Written Case for the Applicant dated 23 August 2011, page 8.
We reject that submission. As counsel for the appellant properly acknowledged, this was a particularly serious example of the crime of rape. It was perpetrated against a young woman who was legally blind, and exceptionally vulnerable. The sentencing judge aptly described the appellant’s conduct as ‘predatory’. Moreover, the appellant had a significant and relevant criminal history which had to be taken into account in determining the sentence to be imposed.
The sentencing judge paid particular regard to current sentencing practices for rape, as he was bound to do. He was, however, entitled to conclude that a sentence well beyond the median was warranted in the particular circumstances of this case. Both general and specific deterrence carried substantial weight. Moreover, the appellant’s conduct had to be denounced in the strongest possible terms.
Ground 2
This ground has two limbs. It asserts that the sentencing judge (a) gave insufficient weight to the principle of totality, and (b) failed to ensure that the sentences imposed on each count did not doubly punish the appellant. In support of that double punishment contention, the appellant asserts that the sentencing judge ‘must have taken into account circumstances of each count when determining the sentences to be imposed’.[27]
[27]Ibid 9.
In Pearce v The Queen, the High Court observed that:
To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts.[28]
[28](1998) 194 CLR 610, 623 (McHugh, Hayne and Callinan JJ) (emphasis added).
We consider that this ground, insofar as it relates to double punishment, is made out. As we have previously indicated, the sentence imposed on count 1, four years and six months’ imprisonment (for an offence carrying a maximum of ten years), was, in the particular circumstances of this case, manifestly excessive. It was so high as to be explicable only on the basis that the sentencing judge must have been influenced, when assessing the gravity of the abduction, by what the abduction led to, namely the rape itself. To test that hypothesis, it is only necessary to ask what sentence would have been appropriate had the appellant not gone on to rape the complainant, but instead desisted from that plan. It is inconceivable, had that been the situation, that he would have received a sentence of anything like four years and six months.
If one puts to one side the fact that the abduction led, ultimately, to an atrocious rape (for which the appellant was to be separately and severely punished), we consider that a sentence of no more than three years’ imprisonment would have been warranted on count 1.
The sentencing judge ordered that two years and six months of the sentence on the count of abduction be served cumulatively upon the sentence imposed on the count of rape. In doing so, his Honour noted that the appellant fell to be sentenced as a serious sexual offender. Under s 6E of the Sentencing Act 1991, the sentences imposed upon him were to be served cumulatively unless ‘otherwise directed by the Court’. The effect of that provision is to moderate the regard which would ordinarily be had to the principle of totality.[29] In those circumstances, counsel who appeared for the appellant on the plea properly conceded that some degree of cumulation was warranted.
[29]R H McL v The Queen (2000) 203 CLR 452, 476-7.
In the circumstances, we consider that one year and six months of the sentence imposed on count 1 should be served cumulatively upon the sentence imposed on count 2. That degree of cumulation appropriately addresses the totality of the appellant’s criminal conduct.
Ground 3
This ground in support of the appellant’s application for leave to appeal against sentence relies upon what is said to be new evidence as to the burden of his conditions of imprisonment. Counsel who appeared for the Crown did not object to the reception of further evidence relating to that matter, and the Court made orders, on the hearing of the appeal, that Corrections Victoria provide an affidavit setting out in detail the conditions under which the appellant was then held. Further submissions were received from both parties directed to the contents of that affidavit.
The following affidavits were tendered:
(a)Affidavit of Megan Bridgett, Manager, Sentence Management Unit, Corrections Victoria, sworn 13 July 2012; and
(b)Affidavit of the appellant affirmed 19 July 2012.
Following receipt of the parties’ further written submissions on this matter, we were advised that the appellant had been moved to the Banksia unit of Barwon Prison, which is a protection unit. It may be that a substantial portion of the evidence we received remains generally relevant, if not specifically so. That is because the evidence reveals that the appellant has been, and may continue to be, regularly moved between prisons.
In summary form, Ms Bridgett’s affidavit states that:
(a)the appellant was first placed in protective custody in August 2008 by reason of the nature of his offending;
(b)in December 2010, he was transferred to Port Phillip Prison and placed in a protection unit. It appeared that some prisoners had discovered the nature of his offending with consequential risks to his safety. Precautions were taken to create safe accommodation for him;
(c)on 28 December 2011, the appellant was assaulted and spent some time in hospital. Following that assault, various placement options were discussed. Difficulty was experienced in placing the appellant due to the possibility that he would ‘clash’ with certain prisoners at other prisons. He was subsequently transferred to Marngoneet Correctional Centre early in 2012;
(d)several prisoners (across at least two prisons) have been identified as persons from whom the appellant requires protection;
(e)two prisoners have been identified as persons requiring protection from the appellant, one by reason of an assault said to have been carried out by the appellant; and
(f)the facilities for prisoners in protective custody at Marngoneet are designed to be equal to mainstream facilities. The appellant [had] access to library facilities, work, and educational facilities.
Ms Bridgett’s affidavit concludes with the statement that the ‘allocation to a prisoner of a protection status should not, of itself, generally result in the prisoner being exposed to disadvantageous conditions in comparison to the mainstream prison population’. She also deposes that the appellant is likely to remain designated as a protection prisoner for the foreseeable future.
The appellant’s affidavit confirms that he has been in protective custody since August 2008, and describes the assault upon him on 28 December 2011 in fuller detail. It sets out the injuries he suffered, and the ongoing medical problems he experiences as a result. He denies ever assaulting another prisoner and states that he feels ‘constantly frightened and alone in custody’.
Overall, the evidence establishes that there is a strong basis for the appellant’s placement in protective custody owing to the threats made against him, and that his protection status will continue for the foreseeable future. Counsel for the appellant, having reviewed the affidavit from Corrections Victoria, submitted that his client’s sentence should be ‘significantly moderated because of the burden of his imprisonment’. Counsel for the respondent submitted that the conditions set out in the appellant’s affidavit did not demonstrate sufficient hardship, in serving the sentence imposed, to warrant this Court’s interference with the sentence.
In this context, the following statement by Hansen JA in CCR v The Queen is particularly apposite:
In these circumstances, it seems that little can be done at present to integrate the appellant with other prisoners, and particularly bearing in mind that the authorities – and not this Court – bear the legal responsibility for the safety and welfare of the appellant.[30]
[30][2012] VSCA 163, [77].
In R v Males, Whelan AJA said:
Where a prisoner is being held in protective custody, that is a factor relevant to sentence. The extent to which it is to be taken into account in the prisoner's favour depends upon the source of the need for protection and, of course, upon the particular circumstance and likely duration of the protection.[31]
[31][2007] VSCA 302.
The affidavit material makes clear that the prison authorities are continually monitoring the conditions in which the appellant is serving his term of imprisonment. While the assault upon him on 28 December 2011 is regrettable, and unacceptable, we do not consider that anything put forward by way of fresh evidence warrants interference by this Court with the sentence imposed, or leads to the conclusion that a different sentence should now be passed.
Ground 4
This ground asserts that the non-parole period imposed by the trial judge was disproportionate to the head sentence. It was submitted that a non-parole period of 81 per cent of the head sentence could not be justified.
Because we have already indicated that the total effective sentence must be reduced, we will also fix a new non-parole period. Accordingly, it is not necessary to decide whether this ground is made out.
We note, however, that although there is no single correct non-parole period,[32] the fixing of a non-parole period amounting to 81 per cent of the head sentence may invite scrutiny.[33] In this case, the trial judge gave no reasons for fixing such a lengthy non-parole period, though he may have considered that the seriousness of the offending warranted that course.
[32]Hili v The Queen (2010) 242 CLR 520, 534 (note that this was confined to federal appeals).
[33]R v Detenamo [2007] VSCA 160, [23]−[28]; R v Tran and Tran [2006] VSCA 222 [26]−[28]; Romero v The Queen (2011) 206 A Crim R 519, [25]. See also the comments about the desirability of giving reasons for fixing a non‑standard non‑parole period, in the context of a statutory provision fixing standard periods in Muldrock v The Queen (2011) 244 CLR 120, 132.
Presentence detention
Counsel for the appellant raised, for the first time in his further submissions following receipt of the affidavit material, the question of presentence detention served by the appellant. The sentencing judge had declared, pursuant to s 18(4) of the Sentencing Act 1991, that the appellant had served 850 days under the sentence which he imposed.
In his further submissions, counsel advised the Court that for three months of the period during which he was on remand for the offending subject to this appeal, the appellant was serving a sentence of six months’ imprisonment for various driving-related offences. Three months of that sentence were served by the appellant, with the remaining three months suspended for 18 months. Accordingly, counsel submitted, the appellant was not entitled to presentence detention with respect to that three month period. Instead, it was submitted, that time should be taken into account under the principles set out in R v Renzella.[34]
[34][1997] 2 VR 88 (‘Renzella’).
Counsel for the respondent submitted that such an adjustment would be futile because it was likely that the same result will be achieved irrespective of whether that period is regarded as presentence detention or taken into account under Renzella.
The relationship between s 18 of the Sentencing Act 1991 and the principles in Renzella can be summarised as follows:
(a)Section 18 permits the period during which an offender is on remand for more than one set of offences at the same time to be declared as presentence detention when the offender is first sentenced. Although the period spent in remand must relate to the offences for which the offender is being sentenced, it is not necessary, as was previously the case, that the period relate only to those offences.[35]
(b)If an offender is detained on remand for one offence, while serving a sentence for another, s 18 does not apply to the period during which the offender was on remand.[36]
(c)The Renzella discretion permits a sentencing judge to take account of a period which the offender spent in custody which is unrelated to the offence for which the offender is currently being sentenced, even if that period is not covered by s 18.
(d)The Renzella discretion was originally exercised in circumstances where, with hindsight, the offender should not have spent a period in custody for earlier alleged offences, because he or she has been acquitted of those offences, had the charges withdrawn, or the Crown has entered a nolle prosequi (a period often described as ‘dead time’).[37] As noted in Karpinski,[38] the discretion has even been exercised in cases where the period on remand which the offender should not have served arose out of conduct unrelated to the offences for which the offender falls to be sentenced and occurred some time in the distant past.
(e)Where Renzella applies the Court may take account of the whole period during which the offender was in custody, or some lesser period.
[35]Karpinski v The Queen [2011] VSCA 94, [36] (Tate JA) (‘Karpinski’).
[36]R v Broad [1999] 3 VR 31, 36 [11] (Brooking JA).
[37]Warwick v The Queen [2010] VSCA 166
[38]At [5]-[7] (Weinberg JA); [60]-[62] (Tate JA).
We would have thought that this case, where the appellant was on remand for the current offences, while at the same time serving a term of imprisonment for another offence which cannot be claimed as presentence detention under s 18, raises an issue of totality, rather than calling for the application of Renzella.[39] We note however, that in Wheldon v The Queen[40] the Crown conceded that such a period should be treated as Renzella time. In Wheldon, the Court accepted that concession.
[39]Cf Karpinski [2011] VSCA 94, [70]-[75].
[40][2011] VSCA 83 (‘Wheldon’).
Whether the correct analysis depends on the application of Renzella, or the principle of totality, we would reduce both the total effective sentence and the non-parole period by two months.
It follows from the reasons set out above the appeal against sentence must be allowed. That necessitates new orders as to cumulation, and a new non-parole period. It also means that this Court must itself declare the appropriate period of presentence detention.
Because the appellant seems to us to be entitled to two months’ credit, whether as Renzella time or under the principle of totality, we would reduce the sentence of 11 years otherwise affirmed on the count of rape by that period. We would also reduce the non-parole period by that same period.
Conclusions
We would dismiss the appellant’s appeal against conviction.
We would grant the appellant leave to appeal against sentence on grounds 1 and 2, but not otherwise. On the basis of those grounds, we would allow the appeal for the purpose of reducing the sentence on count 1, and adjusting the order for cumulation of that sentence upon the sentence imposed on count 2.
We would set aside the sentence of four years and six months’ imprisonment imposed on count 1, and substitute, in lieu thereof, a sentence of three years’ imprisonment. We would order that one year and six months of the sentence on count 1 be cumulated upon the sentence of 11 years on count 2, which we will reduce by two months for the reasons earlier discussed. That makes a total effective sentence of 12 years and four months.
We would fix a non-parole period of nine years and four months’ imprisonment.
The following table sets out the sentence we would impose:
Count Offence Sentence Cumulation 1 Abduction 3 years’ imprisonment 1 year and 6 months 2 Rape 10 years and ten months’ imprisonment Base sentence Total effective sentence
12 years and 4 months’ imprisonment
Non-parole period
9 years and 4 months’ imprisonment
We note that in submissions filed after the hearing of the appeal the Crown accepted that the appellant should be subject to reporting obligations under the Sex Offenders Registration Act 2004 for a period of 15 years.[41]
[41]See R v Cheetham (2006) 13 VR 304, 308 (Nettle JA).
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