Fowles v The Queen

[2011] VSCA 206

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0254
GREGORY BARRY FOWLES	Appellant
v
THE QUEEN	Respondent

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JUDGES:	HANSEN JA and WHELAN and ROSS AJJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 July 2011
DATE OF JUDGMENT:	19 July 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 206
JUDGMENT APPEALED FROM:	DPP v Fowles (Unreported, County Court of Victoria, Judge Pullen, 15 July 2010)

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CRIMINAL LAW – Sentence – Six counts of indecent assault – Two adult victims – Co-workers – Crown concession total effective sentence of four years’ imprisonment with non-parole period of two years manifestly excessive – Re-sentenced to total effective sentence of 27 months’ imprisonment with non-parole period of 15 months.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr R McCloskey with Mr J Tran, solicitor	Coolabah Law Chambers
For the Respondent	Mr T Gyorffy	Mr C Hyland, Solicitor for Public Prosecutions

HANSEN JA:

1. I will ask Whelan AJA to deliver the first judgment.

WHELAN AJA:

1. On 15 July 2010 the appellant was sentenced to a total effective sentence of four years’ imprisonment with a non-parole period of two years for six offences of indecent assault.  The appellant was granted leave to appeal these sentences on 18 February 2011.

1. The offences concerned assaults by the appellant upon two adult female co-workers.  At the time of the assaults the appellant was employed as a chef at an hotel.

1. I do not intend to go through the facts relevant to the offences or to go through the various matters relevant to mitigation because on the hearing of the appeal it was accepted that, with one minor possible qualification, the sentencing judge had set out all of the relevant matters in her reasons for sentence, and that she had not overlooked anything or mischaracterised anything. 

1. The possible qualification concerned the sentencing judge’s description of one offence.  The description she gave in her reasons did not precisely reflect the particular victim’s evidence-in-chief, although counsel for the appellant told the Court on the hearing of the appeal that the sentencing judge’s description was consistent with the evidence of the victim in cross-examination.  In any event, nothing turns upon that difference.

1. Counsel for the Crown conceded that there had been sentencing error.  On each of the six counts, a sentence of 16 months’ imprisonment had been imposed which, after directions as to concurrency and cumulation, resulted in the total effective sentence already referred to.  In the Crown’s written submission, the concession was made that the sentence was manifestly excessive.  A table of sentences for the offence of indecent assault committed upon an adult imposed in

the County Court in the period 2008 – 2010 was produced by the Crown.  That table revealed that a majority of offenders were not sentenced to an immediate term of imprisonment.  A copy of that table is annexed to these reasons.  In oral submissions, counsel for the Crown submitted that it had also been an error to impose the same sentence on all six offences when the offences differed significantly in seriousness.

1. The total effective sentence imposed by the sentencing judge was within the range which had been put to her at the plea hearing on behalf of the Crown.  The range which had been put to her was four to six years’ imprisonment.  The Crown now concedes that that range was erroneous.  The Crown now submits the appropriate range is two to two and a half years’ imprisonment with a non-parole period of 15 to 18 months.

1. Counsel on behalf of the appellant submitted that there should be an outcome which results in the immediate or very early release of the appellant.

1. I accept that the sentence imposed is manifestly excessive.  In consequence the appeal should be allowed and the appellant re-sentenced.

1. Turning then to re-sentencing, the relevant circumstances are, as I have previously indicated, set out in the sentencing judge’s reasons.  I will not refer to them or repeat them save so far as is necessary to do so in order to differentiate the seriousness of the respective counts.  I have had regard to the affidavit sworn by the appellant’s solicitor as to the appellant’s current circumstances and his activities in custody.  I have also considered the two Court of Appeal decisions particularly relied upon by the appellant, being Worsnop v R[1] and R v Elston,[2] mindful of the shortcomings inherent in the comparison of particular cases.

   [1][2010] VSCA 188.

   [2][1999] VSCA 137.

1. There are two relevant presentments.  Number YO1843673.1 concerns one victim, who I will call ‘R’.  Number YO1843673.2 concerns another victim who I will call ‘C’.  The appellant was found guilty by a jury on counts 1, 3, 5, 6 and 7 of the presentment concerning R and, at a separate trial, on Count 1 of the presentment concerning C.  The appellant had been charged with a number of other offences of which he was acquitted.  I will refer to the counts concerning R as counts ‘1R’, ‘3R’, ‘5R’, ‘6R’ and ‘7R’.  I will refer to the count concerning C as count ‘1C’.

1. The relevant sequence of events was as follows.

1. The appellant committed count 1R in around 2002.  In submissions before this Court, the appellant’s counsel described the offending behaviour as grabbing at R’s polo top to look down it in the cool room of the hotel.

1. The next offence was count 1C which was committed in 2003.  The appellant assaulted C by placing his hand under her top and over her bra.

1. The next offence was count 3R which happened on Caulfield Cup Day in 2007.  The appellant grabbed at the victim’s pants, trying to get his hands inside her pants and grabbing at her vagina area.  This occurred whilst the victim was attempting to drive a bus.

1. As a consequence of the incident on Caulfield Cup Day, the appellant was warned about his behaviour by the employer.

1. Within a few months of this warning, there was a further incident involving R which was the basis of counts 5R, 6R and 7R.  Count 5R concerned the touching of her breasts, count 6R concerned the touching of the area of her vagina, and count 7R concerned grabbing at her pants.  Whilst each of the offences occurred at approximately the same time, count 7R was the last to occur and occurred after R had moved to a different area of the hotel.

1. I accept the submission put on behalf of the Crown that the most serious offences are counts 5R, 6R and 7R.  They are the last of what are properly to be seen as repetitive offences by the appellant.  They occurred not long after warnings had been given to him by the employer.  Count 7R is the most serious of those three as it occurred  after the victim had moved to a different area.  Counts 5R and 6R were, broadly speaking, part of the same episode as count 7R.

1. Count 3R is also a serious offence.  It occurred prior to the warnings by the employer, but it was an invasive offence committed whilst the victim was in a vulnerable position, not only because she was a co-worker, but because she was attempting at the time to drive a motor vehicle. 

1. Count 1C involves the second victim.  It is less serious than the counts I have dealt with so far.  Count 1R is the first offence and is of a seriousness similar to count 1C save for the fact that count 1C represents a second incident with a new victim. 

1. Before this Court, counsel for the appellant and the respondent accepted the sentencing judge’s analysis that upon conviction and sentence to a term of imprisonment on counts 1R and 3R, the appellant was then to be sentenced as a serious sexual offender on counts 5R, 6R, 7R and 1C.  I would not depart from that approach.  The significance of that matter here is that every term of imprisonment imposed on a serious sexual offender must, unless otherwise directed by the Court, be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed on the offender whether before or at the same time as that term (s 6E Sentencing Act 1991).

1. The sentences I would impose are as follows:

Count 1R:	2 months
Count 3R:	9 months
Count 5R:	9 months
Count 6R:	9 months
Count 7R:	12 months
Count 1C:	3 months

1. I would make the sentence on count 7R the base sentence.

1. I would direct that one month of the sentence on count 1R and six months of the sentence on count 3R be served cumulatively with the sentence on count 7R and

the other sentences.  I would direct that six months of each sentence on counts 5R and 6R be served concurrently with the sentence on count 7R and the other sentences.  I would direct that one month of the sentence on count 1C be served concurrently.  Thus, the effect is as follows:

Count	Sentence	Cumulation
Count 7R:	12 months	Base
Count 1R:	2 months	1 month
Count 3R:	9 months	6 months
Count 5R:	9 months	3 months
Count 6R:	9 months	3 months
Count 1C:	3 months	2 months
Total effective sentence:	27 months

1. I would fix a non-parole period of 15 months.

HANSEN JA:

1. I agree.

ROSS AJA:

1. I also agree.

HANSEN JA:

1. The Court will make the following orders:

1.        The appeal is allowed.

2.        The sentences of imprisonment imposed below are quashed.  In lieu thereof the appellant is sentenced as follows: on presentment No

YO1843673.1 -  count 1, two months’ imprisonment (‘count 1R’);  count 3, nine months’ imprisonment (‘count 3R’);  count 5, nine months’ imprisonment (‘count 5R’);  count 6, nine months’ imprisonment (‘count 6R’);  count 7, 12 months’ imprisonment (‘count 7R’).  On presentment No YO1843673.2 -  count 1, three months’ imprisonment (‘count 1C’).

3.        The Court directs that one month of the sentence imposed on count 1R and six months of the sentence imposed on count 3R be served cumulatively upon each other and upon the sentence imposed on count 7R.

4.        The Court directs that six months of the sentence imposed on count 5R, six months of the sentence imposed on count 6R and one month of the sentence imposed on count 1C be served concurrently with each other and with the sentence imposed on count 7R.

5.        A non-parole period of 15 months is fixed.

6.        It is declared that the period of 397 days including this day is to be reckoned as already served under the sentence and it is ordered that there be noted in the records of the Court the fact that that declaration was made and its details.

7.        All other ancillary orders made in the County Court on 15 July 2010 are confirmed.

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ANNEXURE A

TABLE OF CASES HEARD IN THE COUNTY COURT 2008-2010 WHERE THE PRINCIPAL OFFENCE WAS INDECENT ASSAULT COMMITTED UPON AN ADULT

DATE	NAME	FACTS	PRIORS	SENTENCE[3]
18/1/08	Craig Geoffrey Smith	A and V in an on again/off again relationship. A tried to kiss V and grabbed her around the groin. Offence took place in the context of other domestic violence issues. Plea of guilty	Yes	CBO for 12 months
12/3/08	Noel Maurice Nankervis	V drunk and put to bed by friends in her underwear. A present but left her asleep. Returns to check on her. V wakes to find A touching her vagina and her underwear removed. Plea of guilty	No	24 months’ imprisonment wholly suspended
13/3/08	Leigh Matthew Kemp	V went to some pubs and left with the intent of going home. Her party met with A’s party and he offered her a lift home. Discussion about and requests about sexual conduct which V refused. V offered money. Whilst car stationary, A put his hands down V’s pants and touched her vagina. Plea of guilty	None relevant	Fine
31/3/08	Sebastian Caride	V was an employee of a real estate agent. A walked through a display home where V was working. He left and returned and told her she was beautiful and asked for a hug, a kiss and her telephone number. Another day he saw V at a house again and followed her in and locked the door. Spoke to her forcefully.  Put his hand on her thigh, she tried to resist, touched her breasts under her clothes. Plea of guilty	No	4 months’ imprisonment wholly suspended
2/4/08	Jess Neville Southurst	Some consensual activity between A and V. Put hands down her pants and moved a bottle as though he was going to introduce it into her vagina. Trial - acquitted of rape	None relevant	CBO for 24 months
8/5/08	Jacob Hills	After committing an armed robbery A went to live with family friends. Went into the bedroom to ask for a key. V asleep with her husband. Lay in her bed, kissed her on mouth, touched her breasts and vagina and rubbed his genitals against her. Plea of guilty	None relevant	18 months’ imprisonment
14/5/08	Barry Burgess	V travelled by taxi to St Kilda. A and V spoke when she got out of taxi.   Initially shared wine but then argued. Witnesses saw V lying on ground with trousers down. A was on top of her. V was distressed and calling out ‘no’.  A touched her vaginal area by pulling her underpants to one side. Plea of guilty	None relevant	300 days’ imprisonment, 32 of which suspended for 3 months
30/5/08	Pieter Van Lier	A and V known to each other for 10 years. A father figure. Whilst V painting A’s house, A put hand in front of V’s jeans near genital area. This happened on three further occasions. Plea of guilty	No	Fine
25/8/08	David Francis Bristow	V was wife of A at the time. A entered shower and pulled V out of it.   Followed her to the bedroom and pushed her on the bed. Licked her breasts and pressed his fingers outside of her vagina. Plea of guilty	None relevant	15 months’ imprisonment wholly suspended
3/9/08	Garry Johnston	A and V both worked for Benalla SES. A was in a senior role. V attended A’s house for additional training. A was a trained masseuse and offered to give V a massage. She took off all her clothes and in the course of a massage he touched her vagina. Similar incident on another occasion where A touched outside of  V’s anus. Plea of guilty	No	18 months’ imprisonment wholly suspended
11/11/08	Shane  Jackson	A and V had previously had consensual sex. A and friend went to V’s house and brought drugs and alcohol. The friend (Smiley) was convicted of aiding and abetting. A placed his fingers in V’s vagina and his penis in the area of her vagina. Trial - acquitted of rape	None relevant	ICO for 6 months
11/11/08	Jayden Smiley	Co-accused of Shane Jackson. A and V had consensual sex with V on the night of offences. A aided and abetted Jackson by words and conduct in relation to indecent assault. Trial – acquitted of rape	None relevant	4 months’ imprisonment wholly suspended
24/2/09	Stephen Prorok	A and V married but separated, although living under the same roof. A placed V’s hand on his penis over his clothes. A kissed her and pushed her hand between his legs.  A forcibly grabbed V and put his hand in her underwear. A picked her up by the legs, threw her on the bed and tried to touch her vagina. Plea of guilty	Yes	8 months’ imprisonment wholly suspended
25/2/09	William Matai	A was bouncer and knew V who was patron of hotel.  V was drunk and vomiting in toilet. A also drunk. A pushed her face and kissed her forcibly.  Tried to lift her dress up. A pulled her back, unzipped his pants and took out his erect penis near her face. Plea of guilty	No	15 months’ imprisonment wholly suspended
16/4/09	Frank Zagari	A was boarding with V. V fell asleep on couch and woke to find her breasts exposed, pants and underpants around her ankles. A was having oral contact with her vagina. Trial – acquitted of rape	No	16 months’ imprisonment
5/5/09	Mark Edward Gladman	A and V both worked for YMCA. They had attended an awards ceremony. A drove V and another friend home. More drinking took place. Whilst alone A began rubbing V’s thigh and vaginal area and placed her hand on his thigh and penis. All touching was over the clothes. Plea of guilty	No	Adjourned undertaking without conviction for 12 months
15/5/09	George Hamshari	A was a masseuse. Vs attended his premises for massage treatment. A massaged V1’s groin. A asked V2 to remove underwear and then placed finger on either side of vagina and rubbed clitoris. V2 could feel erect penis through clothes. A kissed V2 before massaging breast and asking to kiss her again. Plea of guilty	None relevant	One year imprisonment on each count. TES 18 months, 9 of which suspended for 3 years
24/8/09	Stephen Alfred George Boyce	V was drunk and unknown to V. They met at a hotel with pokies and shared drinks. V was driven back to A’s place. V slept on couch. A asked if he could kiss her, she said no. V woke to find A rubbing her feet and calves. Whilst she slept A pulled her pants and underpants down and rubbed her pubic hair and vagina. Plea of guilty	No	18 months’ imprisonment wholly suspended
8/10/09	Feng Li	A and V met via internet. A cooked V dinner and started making sexual overture. V kept resisting. A forced himself on her. A lay on top of her and tried to touch her breast.  A became more aggressive and moved his hands all over her body. Trial	No	3 months’ imprisonment wholly suspended
18/11/09	Matthew Paul Merrett	A was casual acquaintance of V. A went to V’s house and entered her bedroom whilst she was in the shower. A stopped her from leaving the bedroom, pulled off her towel, touched her breasts, exposed his penis and asked her to touch it. Plea of guilty	No	24 months’ imprisonment wholly suspended
1/12/09	Adnan Khan	A worked at clothing store. V went to store. A suggested he take photos with her for modeling. She gave him her details. Believing it was part of the modeling project, A asked V to strip to her underwear and remove her bra. She complied and A tweaked her nipple. Two months later V attended A’s apartment again for modeling project. V undressed at A’s request. He kissed her, put his hand inside her underwear and rubbed her vagina. Plea of guilty	No	12 months’ imprisonment wholly suspended
5/3/10	Trevor Chaproniere	V’s were employees of A’s motel.  Re V1, A grabbed her breast. On another occasion A grabbed her crotch over her clothes. Re V2, A placed hand around waist and put hand on breast and kissed her. On another occasion A put hands down her jeans. On another occasion A touched her bottom over her clothes. Final occasion A touched her crotch over her clothes. Plea of guilty	No	Fines and one month imprisonment wholly suspended
22/7/10	James William Goodwin	V working as male escort in Ballarat. A engaged V’s services. When V ceased being an escort they kept in touch. A became infatuated with the V. V and A drinking heavily. V asleep and A pulled down his pants and touched his buttock near his anus. Plea of guilty	Yes	CBO for 24 months
17/8/10	George Frith	Consensual kissing and fondling.  Days later V decided she didn’t want a relationship. Whilst V asleep, A lay on top of V, feeling her breasts, hand under bra. Trial – acquitted of rape	Yes	180 days’ imprisonment
13/9/10	James Barta	V and A were friends. After a night out, A was at V’s house. V went to sleep clothed. Whilst asleep, A removed her clothes, touched her vagina, rubbed her anus and fondled her breast. Plea of guilty	No	CBO for 2 years
3/12/10	Xiang Hu	A and V unknown to each other. A followed V on her way home from the railway station. He grabbed her from behind, touched her all over. A and V fell to the ground. A put his hand up her dress and touched her breast and then again rubbed her vagina. Plea of guilty	No	18 months’ imprisonment wholly suspended and CBO for 2 years

[3]Where there are multiple offences, the sentence indicated reflects the principal offence of indecent assault (not the total effective sentence).