H a J v The Queen
[2012] VSCA 96
•17 May 2012
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2011 0246 | |
| HAJ | Appellant |
| v | |
| THE QUEEN | Respondent |
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JUDGES: | BUCHANAN and REDLICH JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 17 May 2012 | |
DATE OF JUDGMENT: | 17 May 2012 | |
MEDIUM NEUTRAL CITATION: | [2012] VSCA 96 | |
JUDGMENT APPEALED FROM: | R v [HAJ], County Court of Victoria, Judge Millane, 8 March 2011 | |
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CRIMINAL LAW – Sentence – Sexual penetration of a child – Cumulation – Discrete offences committed in one incident – Sentences of 3 months’ imprisonment for the indecent acts of kissing a 14 year old girl and rubbing her thigh manifestly excessive – No point of principle.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr T Kassimatis | James Dowsley & Assocs, Frankston |
| For the Crown | Mr D A Trapnell SC | Mr C Hyland, Solicitor for Public Prosecutions (Ms S Aridas) |
BUCHANAN JA:
The appellant was arraigned in the County Court and pleaded guilty to an indictment containing two charges of an indecent act with or in the presence of a child (charges 1 and 2) and six charges of sexual penetration of a child under the age of 16 years (charges 3‑8).
A plea was conducted and the appellant was sentenced to be imprisoned for 3 months on charges 1 and 2, for a term of 2 years on charge 3, for a term of 3 years on charges 4, 5, 6 and 8, and for a term of 4 years on charge 7. The sentencing judge directed that 1 month of the sentence on charge 1, 3 months of the sentence on charge 3 and 6 months of each of the sentences imposed on charges 4, 5, 6 and 8 be served cumulatively on the sentence imposed on charge 7 and upon one another. The total effective sentence was 5 years and 10 months’ imprisonment. A minimum term of 3 years and 10 months’ imprisonment was fixed before the appellant was to be eligible for parole.
The appellant was sentenced on charges 3 to 8 as a serious sexual offender. The sentencing judge said that she did not propose to impose a sentence that was longer than that which was proportionate to the gravity of the offences considered in the light of their objective circumstances.
The appellant has been granted leave to appeal against the sentence.
The victim of the offences was a 14‑year‑old girl. The appellant was aged between 29 and 30 years when the offences occurred.
The appellant met the complainant in 2008 when he delivered a pizza to her mother’s house. The appellant befriended the complainant and her mother. In early 2009, the appellant left the girlfriend with whom he had been living, and went to live with the complainant and her mother at their house.
In January 2009, when the appellant and the complainant were in his car at the beach, the appellant and the complainant spoke about sex and the appellant rubbed the complainant’s thigh and called her ‘babe’ (charge 1).
Charges 2, 3 and 4 occurred between 14 and 17 February 2009 when the appellant and the complainant were together at the Rye foreshore. Charge 2 concerned the appellant kissing the complainant on mouth. The couple then returned to the complainant’s house in Rye where, after the complainant had retired to bed, the appellant crept into bed with her and had sexual intercourse with her. He inserted his finger into her vagina (charge 3), before penetrating her vagina with his penis (charge 4). Charges 5, 6, 7 and 8 were constituted by acts of sexual intercourse between the appellant and the complainant in the period between March and September 2009.
In October 2009, the police recorded a telephone conversation between the complainant and the appellant in the course of which the appellant tried to persuade the complainant to lie to the police. When the appellant was interviewed by the police, he asserted that his relationship with the complainant was platonic and that the complainant had pursued him.
The appellant’s father left his mother when the appellant was two years’ old. The appellant’s mother worked as a prostitute. She left her three children with babysitters during the week, returning at weekends. The appellant was physically abused by his mother’s partner.
The appellant left school after year 10 and worked as a plasterer, baker and potter. He was in a long‑term relationship with a prostitute.
The appellant was addicted to amphetamine in his 20s. He has continued to use cannabis and to drink regularly. As a consequence of his drug use, the appellant apparently has been unemployed for some years before he was sentenced.
Two reports by a psychologist were tendered in the course of the plea. In the first report the psychologist expressed the opinion that the appellant was, ‘in the low to average range of intellectual ability’, and there was a low to moderate risk of him re‑offending.
The psychologist was more guarded in his second report. He said the appellant, ‘needs to become substance free’. The appellant’s prognosis was said to be uncertain.
The grounds of appeal are as follows:
1. In all the circumstances:
(a) the individual terms of imprisonment imposed;
(b) the orders for cumulation made on charges 1, 3, 4, 5 and 6; and
(c) the non-parole period fixed
resulted in a total effective sentence and non-parole period that offended the principle of totality.
2. In all the circumstances:
(a) the individual sentences imposed on charges 1 to 8;
(b) the orders for cumulation; and
(c) the non-parole period
are manifestly excessive.
Pursuant to the first ground, counsel for the appellant pointed out that, although there were eight offences, they took place on five occasions. On the first occasion the appellant committed one indecent act by rubbing the complainant’s thigh. On the second occasion he kissed the complainant, penetrated her vagina digitally and then with his penis. On the third occasion the pair went to bed and had intercourse during the night and then again in the morning. On the fourth occasion the couple had sexual intercourse at the beach and on the fifth occasion they had sexual intercourse at a party.
It was contended that orders for cumulation ought not to have been made on both charges 3 and 4 where charges 2, 3 and 4 represented a single incident. Similarly, it was said that orders for cumulation should not have been made on both charges 5 and 6 where the appellant and complainant shared a bed for a night and had intercourse twice.
It was submitted that in the circumstances in which the offences were committed, greater concurrency was required as the total effective sentence and the non‑parole period were not appropriate to offending of the range in which the appellant engaged.
I do not think that the sentencing judge fell into error because he cumulated sentences for offences which occurred in one incident. The appellant was guilty of discrete offences and it should not be forgotten that the appellant was sentenced as a serious sexual offender on most of the counts. The object of the serious sexual offender legislation is to make sentences to which it applies operate cumulatively rather than concurrently.
A more cogent complaint is that the sentences on charges 1 and 2 were manifestly excessive. On their face, sentences of three months’ imprisonment for offences constituted by a 29‑year‑old kissing a 14‑year‑old girl and rubbing her thigh and the cumulation of one month are excessive.
Counsel for the respondent submitted that the offences were to be viewed in the light of the other offences and were to be seen as grooming of the complainant by the appellant. In my opinion the offences are equally consistent with a commonplace progress of any love affair. The sentencing judge made no finding that the appellant groomed the complainant.
The sentences were to be viewed in a context which included the other offences but, even so, I do not consider that gaol terms were warranted. Accordingly, I am of the opinion that the sentencing discretion has been reopened.
The appellant could rely upon mitigating circumstances of some weight. He pleaded guilty, the sentencing judge found that there was a certain amount of remorse although she stated that the psychologist had found that the appellant had limited insight. Her Honour said that she approached the appellant’s prospects of
rehabilitation ‘with some caution’. The appellant had an extremely deprived and difficult childhood. It might be thought that it was hardly surprising that the appellant appears to have held rather lax views as to sexual mores in the light of the circumstances in which he was reared. The appellant had no prior convictions.
The offences themselves were serious. The appellant is more than twice the age of the complainant. The complainant was vulnerable and the appellant stood in a relationship with her which rendered him responsible, to some extent, for her well‑being. The complainant appears to have been ready to engage in sexual intercourse with the appellant and it is not suggested that any force was exerted by the appellant. On the other hand, the complainant’s willingness does not absolve the appellant.
I would re‑sentence the appellant to be imprisoned for a term of 18 months on charge 3, for a term of three years and six months on charge 4 and for a term of two years and six months on each of charges 5, 6, 7 and 8. I would cumulate three months of each of the sentences on charges 5, 6, 7 and 8 on each other and on the sentence on charge 4. I would order that on charges 1 and 2 the appellant be convicted and discharged. The total effective sentence is four years and six months’ imprisonment. I would fix a minimum term of three years imprisonment.
REDLICH JA:
I agree.
BUCHANAN JA:
The orders of the Court are as follows:
1. The appeal is allowed.
2. The sentence passed below is set aside and in lieu thereof the appellant is sentenced to be imprisoned for a term of 18 months on charge 3, for a term of three years and six months on charge 4 and for a term of two
years and six months on charges 5, 6, 7 and 8. Three months of the sentence on each of charges 5, 6, 7 and 8 are to be served cumulatively on each other and on the sentence on charge 4. On charges 1 and 2 the appellant is convicted and discharged. The total effective sentence is four years and six months’ imprisonment. A minimum term of three years’ imprisonment is fixed before the appellant is to be eligible for parole.
3. The appellant is sentenced as a serious sexual offender in respect of charges 5 to 8.
4. It is declared that the appellant must continue to comply with the reporting obligations imposed by Part 3 of the Sex Offenders Registration Act 2004 for the remainder of his life.
5. The order made in the Court below for the taking of a forensic sample is confirmed.
6. It is declared that a period of 436 days (not including today) is to be reckoned as already served under the sentence and it is ordered that the fact that that declaration has been made and its details be entered in the records of the Court.
It is declared that but for the plea of guilty, the sentence which would have been imposed upon the appellant was one of six years’ imprisonment with a minimum term of four years’ imprisonment.
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