Forbes (a pseudonym) v The Queen
[2018] VSCA 341
•18 December 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0027
| JAMES FORBES (a pseudonym)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]To ensure that there is no possibility of identification of the victim, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.
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| JUDGES: | FERGUSON CJ, WHELAN JA and MACAULAY AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 7 November 2018 |
| DATE OF JUDGMENT: | 18 December 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 341 |
| JUDGMENT APPEALED FROM: | DPP v Forbes (a pseudonym) [2017] VCC 1705 (Judge S Davis) |
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CRIMINAL LAW – Sentence – Multiple assaults and multiple rapes by former domestic partner – Not guilty plea – Total effective sentence of 10 years 10 months’ imprisonment with non-parole period of 7 years 3 months – Whether particular sentence, total effective sentence and non-parole period manifestly excessive – Relevance of particular features of offending – Relevance of context of domestic violence – Proposed ground not arguable – Leave to appeal refused – Jurj v The Queen [2016] VSCA 57 considered – Pasinis v The Queen [2014] VSCA 97 and Filiz v The Queen [2014] VSCA 212 applied.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr P J Smallwood | Pica Criminal Lawyers |
| For the Respondent | Ms S M K Borg | Mr J Cain, Solicitor for Public Prosecutions |
FERGUSON CJ
WHELAN JA
MACAULAY AJA:
On 12 May 2017 the applicant was found guilty by a jury of two charges of intentionally causing injury, one charge of common law assault, and three charges of rape.
Following plea hearings in July and October 2017, he was sentenced by a judge in the County Court on 17 November 2017 as follows:
Charge on Indictment F14236609 Offence Maximum Sentence Cumulation 1. Intentionally Cause Injury contrary to s 18 of the Crimes Act 1958 (Vic). Level 5 imprisonment (10 years) 12 months’ imprisonment 3 months 6.
Assault contrary to common law Level 6 imprisonment (5 years) 6 months’ imprisonment 1 month 7.
Rape contrary to s 38(1) of the Crimes Act 1958 (Vic). Level 2 imprisonment (25 years) 7 years’ imprisonment 18 months 9.
Intentionally Cause Injury contrary to s 18 of the Crimes Act 1958 (Vic). Level 5 imprisonment (10 years) 2 years’ imprisonment 6 months 11.
Rape contrary to s 38(1) of the Crimes Act 1958 (Vic). Level 2 imprisonment (25 years) 7 years’ imprisonment 18 months 12.
Rape contrary to s 38(1) of the Crimes Act 1958 (Vic). Level 2 imprisonment (25 years) 7 years’ imprisonment Base sentence Total Effective Sentence: 10 years and 10 months’ imprisonment Non-Parole Period: 7 years and 3 months Pre-sentence Detention Declared: 189 days 6AAA Statement: Not applicable Other orders:
- Sentenced as a serious sexual offender pursuant to s 6F Sentencing Act 1991 (Vic) in respect of charge 12; and
- Forensic sample order.
The applicant now seeks leave to appeal on the following ground:
The sentence imposed was manifestly excessive in that:
(i) The individual sentence imposed on Charge 11 was excessive.
(ii)The learned sentencing judge incorrectly characterized each offence as a ‘serious example’ of that kind of offence.
(iii)The learned sentencing judge gave insufficient weight to the applicant’s prospects of rehabilitation.
In the course of oral submissions counsel for the applicant clarified that by the proposed ground of appeal the applicant wishes to contend that the sentence imposed on charge 11, and the total effective sentence and the non-parole period fixed, are each manifestly excessive.
The indictment and the verdicts
There were 12 charges on the indictment, to which the applicant pleaded not guilty.
The first five charges concerned offences alleged to have been committed between 31 December 2012 and 1 January 2013. Those charges were a charge of intentionally causing injury (charge 1) and an alternative charge of recklessly causing injury (charge 2), and three charges of rape (charges 3, 4 and 5). The alleged victim in each case was a woman who was then the applicant’s domestic partner.
The further seven charges on the indictment concerned offences alleged to have been committed on 1 July 2013. The applicant was charged with one offence of assault (charge 6), three offences of rape (charges 7, 11 and 12), an offence of making a threat to kill (charge 8), and an offence of intentionally causing injury with an alternative charge of recklessly causing injury (charges 9 and 10). The alleged victim was the same woman who was the alleged victim on the first five charges on the indictment. The applicant and the alleged victim had separated at the time these offences were alleged to have been committed.
In relation to the offences allegedly committed between 31 December 2012 and 1 January 2013, the jury found the applicant guilty on the charge of intentionally causing injury (charge 1) which meant that no verdict was required on the alternative reckless charge (charge 2). The jury were unable to agree in relation to the three rape charges (charges 3, 4 and 5) and, following the discharge of that jury, the prosecution gave a notice of discontinuance in relation to those charges.
In relation to the offences allegedly committed on 1 July 2013 the jury found the applicant guilty on the assault charge (charge 6), guilty on each of the rape charges (charges 7, 11 and 12), not guilty on the charge of making a threat to kill (charge 8), and guilty on the charge of intentionally causing injury (charge 9) which meant no verdict was required on the reckless alternative (charge 10).
Circumstances of the offending
In her sentencing reasons[2] the sentencing judge said that she was sentencing the applicant on the basis of the relevant facts set out in the ‘Summary of the Prosecution Opening at Trial’, insofar as that document concerned the charges upon which the applicant had been convicted.
[2]DPP v Forbes (a pseudonym) [2017] VCC 1705 (‘Reasons’).
The relevant parts of that opening read as follows:
On 31st December 2012, the Accused and Complainant attended a New Years [sic] Eve party in Fitzroy, returning home at around 2.00a.m. As the Complainant was intoxicated, she required assistance from the Accused to climb the stairs to their bedroom. Once upstairs, an argument erupted in relation to the complainant’s friendship with a male at the party. The Accused began to yell and scream then the Complainant somehow found herself on the floor at the top of the stairs.
The Accused began to punch and kick the Complainant to the right leg, stomach and ribs whilst she attempted to crawl away from him and yell out for help. The Accused then kicked the Complainant to the head, causing her to fall down the stairs and lose consciousness. Charges 1 & 2 — ICI/RCI (in the alternative)
…
On 1st July, 2013, the Complainant invited the Accused to her premises to celebrate her birthday. She collected the Accused and they returned to her home at approximately 9.00p.m, where they both consumed a small amount of alcohol.
Whilst sitting on the couch, the Accused suggested to the Complainant that they have sex and the Complainant stood up and refused.
The Accused stood up and grabbed the Complainant, placing his right forearm around her neck. She resisted and said ‘No’ however he tightened his grip, blocking her airway. The Accused then released the Complainant before pushing her head down onto the couch, preventing her from moving. Charge 6 — Common law assault
The Accused pulled down the Complainant’s track pants whilst he knelt behind her, then penetrated her anus with his penis. The complainant said, ‘No, no, no, please stop’ however the Accused continued. Charge 7 — Rape
…
The Complainant told the Accused that she really needed to go to the toilet so he allowed her to stand up and go. He followed the Complainant towards the bathroom and she sprinted towards the toilet, attempting to close the door behind her.
The Accused forced the toilet door open and grabbed the Complainant by the arms, dragging her into the bathroom. He placed his forearm around the Complainant’s neck and squeezed, resulting in her loss of consciousness. Charges 9 & 10 — ICI/RCI (in the alternative)
When the Complainant regained consciousness, she was lying on the bathroom floor, naked from the waist down and the Accused was penetrating her vagina with his fingers. Charge 11 — rape
When her daughter began to cry out from the bedroom, the Complainant pleaded with the Accused to allow her to go and settle the child. He let her go and whilst the Complainant lay on the bed with her daughter, the Accused stood over her watching before holding a pencil to the child’s temple without saying anything.
Once their daughter was asleep, the Accused said, ‘She’s asleep, let’s go’ and they returned to the lounge room where the Accused grabbed the Complainant aggressively and pushed her to the floor, face down.
Whilst the Complainant lay on her stomach, the Accused pushed her face into the carpet then penetrated her anus with his penis. The Complainant pleaded with him to stop however the Accused continued until he ejaculated. Charge 12 — Rape
The reasons
The sentencing judge set out the relevant charges and the applicable maximum penalties.[3]
[3]Reasons [1]–[3].
She summarised the circumstances of the offending,[4] recounted certain evidence given concerning events after the offending,[5] and set out some of the procedural history.[6]
[4]Ibid [4]–[11].
[5]Ibid [12]–[13].
[6]Ibid [14]–[15].
The sentencing judge referred to a victim impact statement which had been read to the court by the victim from a remote facility. Amongst other things, the judge observed that the victim stated she had been ‘scarred for life’ by the offending conduct.[7]
[7]Ibid [16].
The judge referred to the fact that the applicant has a very limited criminal history. He has one prior conviction for an offence in South Australia of causing harm by dangerous driving, in relation to which he received a suspended sentence of imprisonment.[8]
[8]Ibid [17].
The sentencing judge set out the applicant’s personal circumstances and the material relied upon by the applicant on the plea.[9]
[9]Ibid [19]–[30].
The applicant was 28 years old at the time of the offending and was 33 years old at the time of sentence. He had lived overseas from the ages of 7 to 13. He reported having been sexually abused by a friend of his father between the ages of 9 and 11. Returning to Australia, his parents separated and the applicant had moved schools a number of times. He attempted Year 11 twice, but then left school and worked in various jobs in hospitality, in factories, in nightclubs, cleaning and labouring, and as a personal trainer. The applicant was involved in a serious motor cycle accident at the age of 22 which resulted in his friend, who was a passenger, suffering permanent brain damage.
The sentencing judge addressed at some length the applicant’s medical and psychological history.[10] He was at one time diagnosed as suffering from bipolar disorder and had also been diagnosed by his general practitioner (Dr Dodsworth) with a condition described as ‘pyroluria’. Amongst the evidence relied upon by the applicant on the plea was a report from a consultant psychiatrist, Dr Owens. The sentencing judge summarised Dr Owens’ relevant evidence as follows:
Dr Owens felt that there is a ‘significant possibility’ that you have bipolar disorder but that he was ‘not satisfied that this is the case’. Given your current and recent mental state, he did not consider that you need mood stabilising treatment. He noted that there were ‘likely alternative explanations’ for your mood instability since mid-adolescence, including the effects of drug and alcohol use and personality traits of emotional instability. He noted there were aspects of your past symptoms that are suggestive of traits of histrionic or emotionally unstable personality disorder. He concluded that you meet the criteria for a diagnosis of alcohol dependence, currently abstinent in a protected environment. Dr Owens noted that ‘pyroluria’ is not generally accepted as a bona fide medical diagnosis, nor is he aware of any broadly accepted evidence that psychiatric symptoms or psychiatric disorders are caused by such a condition. He noted your belief that your mental state was more stable when you take the dietary supplements prescribed by Dr Dodsworth. He did not consider that your current mental health status would make imprisonment weigh more heavily on you than on a prisoner without a mental health condition.[11]
[10]Ibid [20]–[27].
[11]Ibid [27].
The sentencing judge referred to positive personal references from the applicant’s stepfather, his two sisters, and an uncle.[12]
[12]Ibid [28]–[30].
The sentencing judge then dealt with submissions made on the applicant’s behalf.[13] In a written outline it had been contended on the applicant’s behalf that the principles in R v Verdins[14] were applicable, but the sentencing judge recorded a concession by counsel for the applicant made during the plea hearing that in the light of Dr Owens’ report the necessary link required by Verdins was ‘tenuous and speculative’.[15]
[13]Ibid [31]–[32].
[14](2007) 16 VR 269 (‘Verdins’).
[15]Reasons [31].
The judge then set out submissions made on behalf of the prosecution.[16] For present purposes, it is only necessary to note that the sentencing judge recorded the prosecution as having submitted that the third rape (charge 12) was the most serious because it was the last in a sustained period of violence and was an anal rape involving ejaculation.[17]
[16]Ibid [33]–[34].
[17]Ibid [33].
The sentencing judge turned to the gravity of the offending and said that she considered that each of the offences committed by the applicant was a serious example of that type of offence. She then went through each of the offences giving reasons for that conclusion.[18]
[18]Ibid [35]–[38].
The sentencing judge found that the principles in Verdins did not apply, relying in that respect on Dr Owens’ report.[19]
[19]Ibid [39].
The sentencing judge referred to the fact that the applicant had denied, and continued to deny, that he had committed the offences. She observed that there was no remorse on his part and that the offending had had quite a dramatic and long term impact on the victim, traumatising her and affecting her ability to trust others and engage in relationships.[20]
[20]Ibid [40].
The sentencing judge said that general and specific deterrence, denunciation and just punishment were sentencing considerations in the case, and that on charge 12 the serious offender provisions of pt 2A of the Sentencing Act 1991 applied. She observed that the prosecution did not seek a disproportionate sentence and that she did not intend to impose one. She noted the presumption of cumulation in respect of charge 12 and said she recognised that the principle of totality continued to apply.[21]
[21]Ibid [41].
The sentencing judge addressed the applicant’s prospects of rehabilitation, observing that the absence of any similar offending before or since was relevant. She referred to the applicant’s continuing denial of the offending. She observed that on balance she considered the applicant’s prospects of rehabilitation to be ‘guarded’.[22]
[22]Ibid [42].
The sentencing judge referred to submissions made as to cumulation and concurrency. She observed that the charges upon which the applicant had been convicted, other than charge 1, had occurred in one course of conduct, but she said that she considered appropriate weight had to be given to the fact that there were multiple acts of violence and sexual violence and to the fact that s 6E of the Sentencing Act required full cumulation in relation to charge 12 unless the court otherwise directed.[23] The judge observed that the principle of totality must be given appropriate weight and in the circumstances she did propose to direct partial cumulation.[24] In the sentences she then imposed the sentence on charge 12 was the base sentence and orders for cumulation in relation to the other sentences were made on that base sentence.
[23]Ibid [43]–[44].
[24]Ibid [44].
Submissions on the application for leave to appeal
In the applicant’s written case in support of the application for leave to appeal a submission was made that the offence of digital rape (charge 11) was ‘an inherently less serious charge than one of anal rape’. In the hearing before us that submission was withdrawn. Counsel for the applicant accepted that each offence of rape is to be assessed in the totality of the relevant circumstances.
In support of the contention that the sentence imposed on charge 11 (the digital rape), and the total effective sentence and the non-parole period, were each manifestly excessive counsel for the applicant relied upon five matters. They were:
1. The absence of certain features typically taken into account by sentencing courts in assessing the objective gravity of a particular offence of rape, as set out by this Court in Jurj v The Queen.[25]
[25][2016] VSCA 57 [79]–[81] (‘Jurj’).
2. The applicant’s very limited criminal record.
3. The significant delay which had occurred between the offences and the sentencing, during which period there had been no re-offending of any kind.
4. The importance of totality, and in that respect, reliance was placed on the fact that all of the offending, other than charge 1, occurred in the course of the same episode.
5. What was contended to be a disconformity between the sentence imposed on charge 11, and those imposed on charges 7 and 12.
The rapes which constituted the offending in charges 7 and 12 were said to involve circumstances of aggravation which did not apply to the rape which was the subject of charge 11. It was submitted that the fact that the same sentence had been imposed on each of the three rape offences ‘invited scrutiny’. Reference was made to the fact that the prosecution had submitted to the sentencing judge that the offence in charge 12 was the most serious one. The sentencing judge had referred to that submission in the Reasons, and had described the third rape in terms which indicated that she accepted that it had been the most serious offence.
Counsel for the applicant accepted that the three rape offences were each serious because they occurred in the context of domestic violence, and because of the following circumstances which were set out in the applicant’s written case:
·The applicant had been invited into the victim’s home.
·Their daughter was in the home at that time.
·He took advantage of the situation.
·Two of the rapes were anal rapes and likely to have been very degrading and humiliating.
·The first and second rapes were preceded by violence, which increased the applicant’s culpability, demonstrated his determination to commit those rapes, and would have increased the victim’s sense of fear and hopelessness.
·The repetition of the rapes aggravated the seriousness of the offending in its totality.
It was submitted, however, that there were certain features referred to in Jurj which were absent, namely:
·The offending had not been premeditated.
·The offender had acted alone, not in company.
·The offending had not taken place over an extensive period of time.
·No weapon had been used.
·Apart from brief unconsciousness, the victim had sustained no injuries.
·The victim was not vulnerable by reason of mental or physical impairment.
On behalf of the respondent it was submitted that the victim had been vulnerable, not by reason of mental or physical impairment, but because the offending took place in a context of domestic violence. In that respect reliance was placed upon the decisions of this Court in Pasinis v The Queen[26] and Filiz v The Queen.[27] The respondent submitted that there had been a sustained attack, which had been degrading, which had resulted in loss of consciousness, and which took place in circumstances where the victim was obviously fearful in relation to the child. It was submitted that the matters set out by this Court in Jurj should not be treated as some form of prescriptive list.
[26][2014] VSCA 97 (‘Pasinis’).
[27][2014] VSCA 212 (‘Filiz’).
Counsel for the respondent emphasised the sequence of events in relation to the offending on 1 July 2013. There was violence after the first refusal of a request for sex (charge 6) and the first rape then occurred (charge 7). There was a further assault after the victim had run away and that assault caused her to lose consciousness (charge 9); she was then raped again while on the floor of the bathroom (charge 11). That was the fourth assault upon her body that night. In response to the child’s cries, she was permitted to go to the child and console her. Counsel for the respondent referred to the fact that the applicant had held a pencil to the child’s temple while that occurred which, it was submitted, was a threat intended to subjugate the victim. After leaving the child, the third rape occurred (charge 12), which was the fifth assault on the victim’s body that night. It was submitted that that third rape was the culmination of all that had gone before and that, in the circumstances, the sentence imposed on charge 12 was to be seen as a ‘merciful’ sentence. It was submitted that the ‘merciful’ character of the sentence on charge 12 did not render the sentence on charge 11 manifestly excessive.
The respondent submitted that the applicant’s limited criminal record was a relevant but not a primary consideration. It was accepted that delay was relevant, but the respondent submitted that delay was a common characteristic of offences committed in circumstances of domestic violence. In relation to totality, it was submitted that the cumulations ordered were ‘modest’.
Analysis
As this Court has repeatedly emphasised, the ground of manifest excess will succeed only if it can be shown that the sentence imposed was wholly outside the range of sentencing options available to the sentencing judge. This means that it must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he or she did, if proper weight had been given to all of the relevant circumstances.
We do not consider it to be reasonably arguable that the sentence imposed on charge 11 was wholly outside the range of sentencing options available. The digital rape which is the subject matter of charge 11 was perpetrated in the victim’s own home, after she had attempted to flee from the applicant’s violent attacks, whilst she was unconscious as a result of a further assault upon her, with her child sleeping close by, by her former domestic partner.
We do not consider that the sentence on charge 12 in some way supports an argument that the sentence on charge 11 is manifestly excessive. In this respect we accept the analysis contended for by counsel for the respondent. A comparison of the relevant circumstances in relation to the two offences leads us to the conclusion that the sentence on charge 12 was ‘merciful’ rather than that the sentence on charge 11 was excessive.
As the sentencing judge observed, the applicant’s limited criminal history was relevant, but in the light of the applicant’s lack of remorse, his denial of the offending, and the circumstances of the offending conduct, the sentencing judge’s conclusion that the applicant’s prospects of rehabilitation were ‘guarded’ is one which was clearly open to her.
Notwithstanding the mitigating features relied upon by the applicant, the sentence imposed on charge 11 was, in our view, clearly within the range of sentences available to the sentencing judge. In this context it is important that the applicant could not rely on the significant mitigating effect of a guilty plea.
As to the total effective sentence and the non-parole period, counsel for the applicant rightly accepted that the three rape offences were serious because they occurred in the context of domestic violence and because of the other features of the offending which the respective counsel highlighted. It is true that certain of the features referred to in Jurj are absent. The offender did act alone, no weapon was used, and no injuries were inflicted apart from the temporary unconsciousness and the inevitable psychological impact of offending of this kind. But the features set out by this Court in Jurj, as the judgment in that case itself explained, are ‘descriptive, rather than prescriptive’.[28] The gravity of each offence must be considered in the totality of the circumstances which relate to that particular offence.
[28]Jurj [2016] VSCA 57 [81].
In our view the offending here was very serious for the reasons set out by counsel for the respondent when describing the sequence of the offences. The context of domestic violence is also very important. This Court in Pasinis[29] said:
Historically perpetrators of family violence were rarely prosecuted. Even when offenders were convicted of such offences, they often received lenient sentences. Fortunately the criminal law now gives greater recognition to the devastating effects of family violence. It has also been recognised that women who are killed by their husband, boyfriend or de facto partner have frequently been assaulted by them many times previously. This makes both specific and general deterrence very important factors in sentencing men who assault their partner.
The importance of general deterrence in this context, and its application to offending by former domestic partners, was again emphasised by this Court in Filiz.[30]
[29]Pasinis [2014] VSCA 97 [53].
[30]Filiz [2014] VSCA 212 [21].
For these reasons, in our opinion, it is not arguable that the total effective sentence or the non-parole period were outside the range of sentencing options available to the sentencing judge.
In the circumstances leave to appeal will be refused.
We would add that even if an arguable ground of appeal had been established in relation to the sentence imposed on charge 11, we would have refused leave to appeal under s 280(1)(b) of the Criminal Procedure Act 2009 on the basis that there is no reasonable prospect the Court of Appeal would reduce the total effective sentence even if a relevant error in relation to the sentence imposed on charge 11 were established.
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