Galuak v The Queen
[2015] VSCA 300
•16 November 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2015 0145
| JAL GALUAK | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | WHELAN and PRIEST JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 4 November 2015 |
| DATE OF JUDGMENT: | 16 November 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 300 |
| JUDGMENT APPEALED FROM: | DPP v Galuak (Unreported, County Court of Victoria, Judge Wilmoth, 26 June 2015) |
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CRIMINAL LAW – Appeal – Sentence – Rape – Sentence of 5 years’ imprisonment – Appellant aged 13 years at time of offending and 21 at time of sentence – Youth – Totality – Whether sentence manifestly excessive – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J E McLoughlin | Victoria Legal Aid |
| For the Respondent | Ms D Piekusis | Office of Public Prosecutions |
WHELAN JA:
The appeal should be dismissed for the reasons given by Priest JA.
PRIEST JA:
Introduction
Pursuant to leave granted on 5 October 2015, this appeal is brought against a sentence of five years’ imprisonment imposed on the appellant on 26 June 2015 for rape. The appellant relies on the following grounds:
1. The sentence is manifestly excessive in the light of
a. The early plea of guilty accompanied by remorse.
b. The [appellant’s] youth at the time of the offence.
c. The fact that the [appellant] was a youthful offender at the time of sentence.
d. The delay in the prosecution.
e. The [appellant’s] deprived and traumatic childhood.
f. The fact that the [appellant] suffered from PTSD at the time of the offence and continues to suffer from it.
g. The likelihood that imprisonment will be more burdensome for the [appellant] because of his background and traumatic history.
h. The fact that the [appellant] at around the time of the offence was assessed as having an intellectual disability.
i. The fact that the [appellant] had been in custody on other matters for 2 years 9 months as at the time of this sentence including 15 months during which he had been eligible for parole.
2. The learned sentencing Judge erred in applying the principle of totality by failing to consider what an appropriate total sentence would be for the present and the earlier offending.
3. The learned sentencing Judge erred in failing to take into account that the [appellant] remained a youthful offender at the time of sentence.
For the reasons that follow, I would dismiss the appeal.
Background
As I observed when granting leave to appeal, although there is some doubt about his exact age,[1] the appellant was aged 13 years on 8 April 2007 when he committed a terrifying rape on his 17 year old female victim.
[1]Immigration papers show the appellant’s ‘nominal’ date of birth to be 1 August 1993, but his Victoria Police Criminal History report records it as being 1 September 1993.
The appellant pleaded guilty to the rape in the County Court on 23 June 2015, and on 26 June 2015 was sentenced to be imprisoned for five years. Since the appellant was undergoing another sentence of imprisonment, the judge fixed a new non-parole period of three years and six months.
In summary, the appellant followed the victim from a suburban railway station; threatened her with a cricket bat; dragged her to a secluded location in a park; further threatened and humiliated her; and then raped her with his penis both vaginally and orally. The judge described the offending in more detail in her reasons for sentence:
[The appellant] accosted a 17 year old girl near a railway station, followed her into a park, threatened her with a cricket bat and raped her. It was a violent and terrifying attack. She reported it to the police three days later and swabs were taken from her and from the clothing she had been wearing at the time of the rape.
The complainant had been returning home from an outing when [the appellant] approached her and asked for a light for [his] cigarette. She obliged and then continued on her way along a pathway through the park. [The appellant] and another youth followed her and [he] pulled on her jacket, holding a cricket bat above her head as if to strike her. She was terrified and offered [him] her iPod and mobile phone and anything else [he] could find.
While the other youth watched, [the appellant] searched her and took her phone. [He] then patted her down, squeezing her breasts and feeling her vagina inside her underpants. [He] told her to, ‘Shut the fuck up’, and put her in a headlock and dragged her further into the park to a secluded location near a fence. After arguing with the other youth who exhorted [him] not to rape her, [he] dragged her further into the park and the other youth left, not to be seen again.
As [he] dragged her, [he] told her, ‘Shut the fuck up, bitch’, and then told her [he was] not going to rape her but that [he] had a condom. [He] still had the cricket bat in [his] hand and told her to undress. She complied out of fear and [he] told her [he] had a gun, patting [his] pocket, leading the complainant to believe that [he] did. Then, using the light from [his] mobile phone, [he] inspected her vagina and made a comment about it, before raping her with [his] penis.
[The appellant] continued to penetrate her in various ways for about 20 minutes, offering her money, which she refused saying she just wanted to go home. When [he] saw a person walking nearby, [the appellant] told the complainant to shut up and lie still, threatening that if the person came close, [he] would kill them. When the complainant’s phone rang twice, [he] turned it off.
After raping her vaginally, [the appellant] told her to give [him] oral sex, which she did. [The appellant] then told her to get dressed and returned her phone. [He] told her to forget what [he] looked like and threatened to kill her and any of her friends if [he] saw them in what [he] called, ‘My area’, and that [he] would follow her and find out where she lived.
The complainant walked away and met two friends who had come looking for her, as they had been worried when she had not arrived as expected. She was very fearful and upset and her friends comforted her.
It cannot be gainsaid that the effect on the victim was profound. As the sentencing judge observed, the victim provided an ‘articulate and thoughtful’ victim impact statement, in which she described the physical and emotional pain that she suffered, and, to some extent, continues to suffer. Unsurprisingly, the attack upon her affected the victim’s final year of school. The judge said that the victim was ‘anxious, she lost her independence and her self-esteem suffered’.
The identity of the victim’s assailant remained unknown until January 2012, when a DNA match was established between a sample taken from the appellant following a drink-driving offence on 27 August 2011 and semen found on the victim’s dress and underpants. On 24 January 2012, the appellant was arrested on unrelated matters. He was interviewed about the rape in April 2007 and gave ‘no comment’ answers. Another DNA sample was taken from the appellant, and another comparison was done. The resulting DNA likelihood ratios were extremely strong, leading to the appellant being charged in September 2014.
Despite his relative youth — he is aged 22 years — the appellant’s criminal history is, as I said in my reasons when granting leave, unenviable. That history reveals that on 12 May 2006, when he was aged 12 years, the appellant was sentenced to detention in a youth residential centre for serious driving and other offences, such sentence being substituted with probation by the County Court on 8 June 2006. Some six months or so later, on 18 January 2007, the appellant was sentenced to detention in a youth residential centre for dishonesty and serious violence offences. The sentencing judge noted that the appellant subsequently had ‘frequent appearances’ in the Children’s Court, including for ‘a number of serious charges of violence’ which resulted in sentences of detention. Indeed, between 2008 and 2012 the appellant was sentenced on various occasions for offences including breach of family violence orders, alcohol-related offending, violent offences, dishonesty and a raft of driving offences, culminating in the imposition of a sentence of three years and six months’ imprisonment, with a non-parole period of 20 months, on 19 September 2012. That offending included intentionally causing injury, false imprisonment, contravention of a family violence intervention order, affray and robbery, and the judge noted that the offences ‘were not dissimilar’ to the instant offences. The appellant was undergoing that sentence when sentenced for the present offence. I will later return to the appellant’s criminal history.
Before turning to the complaint that the sentence is manifestly excessive, it is convenient first to consider ground 3, and then ground 2.
Ground 3 — Asserted failure to take youth into account
In oral argument, many of the submissions pertinent to ground 3 were subsumed within the submissions on the first ground. Since it was maintained as a separate ground, however, it is necessary to address its gravamen. Hence, ground 3 asserts that the sentencing judge failed to take into account that the appellant ‘remained a youthful offender at the time of sentence’. In her reasons for sentence the judge said, ‘I must sentence you as a 21 year old now and take into account that you were 13 when you committed the offence’, and also referred to factors applicable to sentencing an adult for a crime committed when a child. The reasons for sentence do not record that her Honour gave any separate or distinct consideration to the appellant’s relative youth at the time that sentence was imposed as a matter which might mitigate sentence. Having regard to the conduct of the plea, however, and to the other of her Honour’s sentencing remarks that I have adverted to, in my view it is unthinkable that the judge did not take into account the appellant’s relative youth at the time of sentencing. Perhaps it might have been better if the judge had made perspicuous by her reasons that she had done so, but a judge cannot be expected to recite every factor taken into account for sentencing purposes (particularly one so obvious). I would not uphold ground 3.
Ground 2 — Totality
As with ground 3, in oral argument the submissions relevant to ground 2 were, in essence, subsumed within those relevant to ground 1. With respect to ground 2 as formulated, however, discussion on the plea demonstrates that the judge had turned her mind to the issue of totality. Her Honour’s reasons for sentence do not make plain, however, whether — and, if so, how — she had taken the principle of totality into account. It would, of course, have been preferable had they done so. In the circumstances, however, it is unlikely that the judge overlooked the principle of totality, and failed to apply it in fixing sentence.
Although one must ordinarily look to the reasons for sentence rather than any antecedent discussion or debate in order to divine the factors that a judge took into account when fixing sentence, the discussion of the topic on the plea indicates that her Honour was concerned to ensure that totality was reflected in any sentence that she passed. The plea hearing took place only three days before the judge passed sentence. In the course of that hearing, both the prosecutor and defence counsel raised the subject of totality with the judge. Thus, when the prosecutor contended that a custodial sentence was appropriate for the present offending, the judge observed that ‘the prospect of custody plus a CCO might be within the realms of possibilities given totality’. There was then further discussion which makes plain that her Honour was aware of the need for totality to be brought to bear when fixing a new non-parole period. Defence counsel then turned to the subject in her plea, and the following short (but telling) exchange took place:
[DEFENCE COUNSEL]: … My learned friend has already referred Your Honour to totality and the application of that principle. I perhaps don’t need to say too much more in respect of that.
HER HONOUR: No, I don’t think you do.
MS BROUGHTON: No. …
As I have said, the need for totality to be reflected in the sentence to be imposed was discussed a few short days before the sentence was passed. Despite the sentencing reasons failing to disclose how the judge accommodated totality, it is unlikely that in the few days intervening between the plea and sentence the judge had forgotten the requirement for the principle to have sway. Moreover, to my mind the head sentence and new non-parole period demonstrate that the judge cannot have overlooked the need for totality.
Ground 1 — Complaint that the sentence is manifestly excessive
Turning to the complaint of manifest excess, in oral submissions six ‘unusual things’ were advanced as supporting the central contention that, as counsel expressed it, the sentence imposed was ‘simply too high’. As I understood it, the six things were:
· first, the appellant was but 13 years of age when he committed the offence;
· secondly, the appellant came before the court some eight years after the offending;
· thirdly, despite the delay, the appellant was still a youthful offender when he came to be sentenced;
· fourthly, by the time he was sentenced for the instant offence, he was already undergoing sentence on other matters;
· fifthly, the combined effect of the sentence imposed and the offences being undergone was a notional total effective sentence of seven years and nine months’ imprisonment, with a non-parole period of six years and three months; and
· sixthly, the appellant had a traumatic early life, and functioned as if he had an intellectual disability.
It may be acknowledged that the appellant was a child at the time that he committed the rape, and that fact must, of course, mitigate his offending. Further, there were several features of the appellant’s personal circumstances — spelled out in the ‘particulars’ subjoined to ground 1 — which pointed towards leniency. Objectively, however, the appellant’s offending was very serious, and had a profound effect on the appellant’s teenage victim. As I have mentioned, the appellant used a cricket bat to threaten violence to his hapless young victim, and subjected her to humiliating and degrading conduct despite the entreaties of his companion that he not rape her. The applicant raped his victim with his penis both vaginally and orally. Despite the suggestion that he had a condom, the appellant deposited semen on the victim’s clothing, and it was only this that led to the detection of his crime.
Decisions of this Court recognise that, where offences which have been committed whilst an offender is a child and are not prosecuted until years after the event, there is good reason to mitigate sentence, particularly where there has been significant rehabilitation and no further offending in the intervening period. Although such an offender falls to be sentenced as an adult, both common sense and fairness dictate that, in assessing the nature and gravity of the crime and the offender’s moral culpability, the Court must take into account that what was done
was done as a child, and not as a more mature person.[2] Moreover, even absent statutory sanction,[3] general deterrence will ordinarily have a lesser role to play in the sentencing of children than in the case of adults.
[2]R v Nutter (Unreported, Court of Appeal, Charles and Callaway JJA and Vincent AJA, 8 November 1995); R v Better [2003] VSCA 71 (Charles, Buchanan and Vincent JJA); R v Boland (2007) 17 VR 300, 304 [16] (Nettle JA, Ashley JA and Dodds-Streeton JA agreeing); Sherritt v The Queen [2015] VSCA 1, [33]–[35] (Priest JA, Maxwell P agreeing) (‘Sherritt’).
[3]CNK v The Queen (2011) 32 VR 641; Sherritt, [35]. See Freiberg, A, Fox & Freiberg’s Sentencing: State and Federal Law in Victoria (3rd ed), [16.70].
In the present case, it cannot be said that there has been rehabilitation and no further offending in the years since the appellant committed the rape with which this case is concerned. Since 8 April 2007, when he raped his 17 year old victim, the appellant has amassed a significant number of convictions and findings of guilt. Thus, on 21 August 2007, the appellant was sentenced in the Children’s Court to detention for 14 months in a youth residential centre for indecent assault; four charges of armed robbery; assault with a weapon; theft; and driving offences (including exceeding the prescribed concentration of alcohol). Later, in the Children’s Court on 26 September 2008, the appellant was released on a good behaviour bond (with conditions) for assaulting police and being drunk in a public place. He was also released on a good behaviour bond by the Children’s Court on 30 April 2010 for resisting and hindering police, and for possessing a prohibited weapon (those charges later being dismissed as a result of compliance with the bond). A year later, on 8 April 2011, the appellant was released on probation by the Children’s Court for attempted aggravated burglary; unlawful assault; resisting police; theft; being drunk in a public place; and a host of other offences.
Since achieving an age which put him outside the jurisdiction of the Children’s Court, the appellant has been the subject of several sentences as an adult. Thus, in the Magistrates’ Court on 9 February 2012 he was fined for breaching a family violence intervention order; resisting police; and being drunk in a public place. Then, on 9 May 2012, the appellant was sentenced to be detained in a youth training centre for 12 months on charges including false imprisonment; recklessly causing serious injury; intentionally causing injury; making a threat to kill; and possessing a prohibited weapon. Several months later, on 19 September 2012, he was sentenced in the Magistrates’ Court for false imprisonment; intentionally causing injury; and contravention of a family violence intervention order; for which a sentence of three years and six months’ imprisonment, with a non-parole period of 20 months, was imposed. The following year, on 5 February 2013, in the Magistrates’ Court, the appellant was sentenced to four months’ imprisonment for affray and robbery.
We were told that some of the convictions for violence-related offending involved the appellant’s girlfriend. Thus, we were informed that in December 2011, the appellant punched his girlfriend and, after she fell to the ground, he kicked her. A little later, in January 2012, the appellant again caused injury to his girlfriend. Alcohol abuse, it was said, was a ubiquitous aspect of the appellant’s offending.
Counsel for the appellant submitted that the appellant’s antecedents revealed that he had not been dealt with for any other sexual offending, but as I have observed, he was dealt with in August 2007 for indecent assault. He has also been dealt with for a number of violent offences, much of the violence being directed towards a female.
Both convictions which occur prior to[4] and subsequent to[5] an offence for which a person is to be sentenced are relevant to the imposition of sentence. As King CJ explained in McInerney:[6]
Where the other offences have been committed before the commission of the immediate offence, their relevance is clear in the generality of cases. The offender has committed the offence not as a first offender but as a person whose character is affected by previous offending. He must be sentenced against the background of his record: Director of Public Prosecutions v Ottewell (1968) 52 Cr App R 679, at p681. The effect of the prior offences is more cogent if they have been the subject of conviction before the immediate offence. In such cases, the offender has committed the immediate offence notwithstanding the formal judgment and condemnation of the law in respect of the earlier offences and notwithstanding the warning as to the future which the conviction experience implies.
[4]Veen v The Queen (No 2) (1988) 164 CLR 465; R v O’Brien and Gloster [1997] 2 VR 714; Weininger v The Queen (2003) 212 CLR 629; R v Bui; R v Beedar (2002) 224 LSJS 286; R v McNaughton (2006) 66 NSWLR 566.
[5]R v Poulton [1974] VR 716; R v Kane [1974] VR 759; R v Rumpf [1988] VR 466; R v Bui; R v Beedar (2002) 224 LSJS 286.
[6]R v McInerney (1986) 42 SASR 111, 113.
In light of the appellant’s offending in the period since he committed the rape, it can hardly be contended realistically that the appellant has undergone any significant rehabilitation. Indeed, the appellant’s offending provokes little cause for optimism about his prospects of rehabilitation. The appellant’s bad character since the commission of the rape in April 2007 cannot operate so as to increase the sentence to be imposed beyond that which is appropriate, or so as to justify a disproportionate sentence. But his persistent offending since the commission of the rape certainly bears on the leniency to be afforded to him for the present offence.
Had it not been for the appellant’s youth at the time of offending — coupled with his plea of guilty and other mitigating features — I would have regarded the sentence of five years’ imprisonment imposed for the present offence as inadequate. When proper regard, however, is had to the appellant’s youth — both at the time of commission of the offence and at the time of sentencing — the reason for the relative leniency of the sentence is readily apparent. Moreover, although it might be acknowledged that the new global non-parole fixed represents a little over eighty per cent of the notional total effective sentence — and to that extent is relatively high — as has been explained more than once, there is no ‘usual’ non-parole period.[7] In the circumstances of this case, I do not regard the global non-parole period fixed as excessive.
[7]Kumova v The Queen (2012) 37 VR 538; Wallace v The Queen (2012) 35 VR 520.
Conclusion
For these reasons, the appeal must be dismissed.
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