Holland (a pseudonym) v The Queen
[2018] VSCA 241
•19 September 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2018 0090 | |
| ALEXANDER HOLLAND (A PSEUDONYM)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]To ensure there is no possibility of the identification of the victim of sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.
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JUDGES: | BEACH, WEINBERG JJA and CHAMPION AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 13 September 2018 | |
DATE OF JUDGMENT: | 19 September 2018 | |
MEDIUM NEUTRAL CITATION: | [2018] VSCA 241 | |
JUDGMENT APPEALED FROM: | DPP v [Holland] (Unreported, County Court of Victoria, Judge Mullaly, 21 March 2018) | |
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CRIMINAL LAW – Sentence – Appeal – Incest (sibling) 2 charges – Total effective sentence of 30 months with non-parole period of 15 months – Whether judge erred in taking into account aggravating circumstance warranting conviction for more serious offence – Error not established – Whether judge failed to take relevant circumstance into account – Error conceded – Whether sentence manifestly excessive – Not reasonably arguable that sentence manifestly excessive – No different sentence should now be passed – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr M A Reardon | Victoria Legal Aid |
| For the Respondent | Mr C B Boyce SC | Mr J Cain, Solicitor for Public Prosecutions |
BEACH JA
WEINBERG JA
CHAMPION AJA:
On 7 August 2017, the applicant pleaded guilty in the County Court to two charges of incest with his sister contrary to s 44(4) of the Crimes Act 1958.[2] On 21 March 2018, the applicant was sentenced as follows:
[2]As in force prior to the commencement of ss 15 and 16 of the Crimes Amendment (Sexual Offences) Act 2016 on 1 July 2017. See now s 50F of the Crimes Act 1958.
Charge Offence Maximum Sentence Cumulation
1 Incest (sibling)
[s 44(4) Crimes Act 1958, as in force before 1 July 2017]5 years’ imprisonment 15 months’ imprisonment 6 months 2 Incest (sibling)
[s 44(4) Crimes Act 1958, as in force before 1 July 2017]5 years’ imprisonment 24 months’ imprisonment
Base Total Effective Sentence: 30 months’ imprisonment Non-Parole Period: 15 months Pre-sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991: Nil Section 6AAA statement: But for the plea of guilty, a total effective sentence of 3 years and 6 months’ imprisonment with a non-parole period of 2 years and 3 months would have been imposed.
The applicant now seeks leave to appeal against his sentence on the following grounds:
1.The learned sentencing judge erred by taking into account as circumstances of aggravation conduct of the applicant which would have warranted a conviction for a more serious offence than the offences charged.
2.The learned sentencing judge erred by failing to take into account material considerations.
Particulars:
(a)the fact that imprisonment would weigh more onerously on the applicant than a person of normal health;
(b)the fact that there was a risk of imprisonment having a significant adverse effect on the applicant’s mental health.
3.The individual terms, order for cumulation and the non-parole period were manifestly excessive having regard to:
(a) the maximum penalty and objective gravity of the offending;
(b) the applicant’s reduced moral culpability;
(c) the applicant’s plea of guilty;
(d) the applicant’s lack of antecedents;
(e) the applicant’s prospects for rehabilitation;
(f)the applicant’s anguish at being unable to care for his partner during a period of imprisonment;
(g)the fact that a custodial sentence would weigh more onerously on the applicant than a person of normal health;
(h)the risk of imprisonment having a significant adverse effect on the applicant’s mental health.
Circumstances of the offending
The applicant was born in 1990. The complainant is the applicant’s biological sister. She is two years’ younger than the applicant, having been born in 1992. The complainant has an intellectual disability.
The facts comprising charge 2 occurred before the subsequent events that gave rise to charge 1.
Charge 2 was a representative charge of penile/vaginal penetration. This charge was representative of acts that were alleged to have occurred on two occasions between 1 January 2007 and 31 December 2014. While charge 2 was particularised as having occurred between 2007 and 2014, in argument we were told that the evidence was that the events probably occurred between 2012 and 2014.
The events comprising charge 1 occurred on 25 May 2016. Charge 1 was described on the indictment as a ‘composite charge’ comprising three separate acts of penetration that occurred on that day. While charge 1 was referred to by the parties as a composite charge, in argument the parties accepted that the expression ‘composite charge’ (an expression that is not defined in relevant authorities)[3] was used as a synonym for ‘rolled up charge’. That is, the parties accepted that charge 1 was in fact a rolled up charge. In view of the potential for confusion to be caused by the use of the undefined term ‘composite charge’, we think it preferable that those responsible for the drafting of charges or indictments, in future, ensure that the more recognised and understood term ‘rolled up charge’ is used.
Charge 2: the representative charge
[3]But cf Walsh v Tattersall (1996) 139 ALR 27, 50 where reference is made to the prosecution not being able to prove ‘all of the acts that have been rolled together in a single composite charge’. See also the references to ‘composite’ charges in DPP v Meharry [2017] VSCA 387 [157], [178].
The incident which occurred first in time took place prior to the applicant and the complainant’s parents separating, and approximately two years before their mother died in 2014. On this occasion, the complainant was in the applicant’s bedroom. The applicant closed the curtains, turned off the lights and shut the door. He bent the complainant over the bed and inserted his penis into her vagina. The applicant withdrew his penis and ejaculated onto the complainant’s back (charge 2 — first occasion).
The incident that occurred second in time took place at a house that the complainant, the applicant and their older brother had moved to following the death of their mother. The complainant was in the bathroom with a towel wrapped around her, after having had a shower. The applicant entered the bathroom while the complainant was getting dressed and grabbed her breasts. The applicant then removed the complainant’s towel, bent her over the basin and penetrated her vagina with his penis (charge 2 — second occasion). After some time, the applicant withdrew his penis from the complainant’s vagina and ejaculated onto her back.
Charge 1: the composite (or rolled up) charge
In early 2016, the applicant (who had for a time lived elsewhere) moved into the house then being shared by the complainant and their older brother.
On 25 May 2016, the complainant was at home. The complainant’s boyfriend had spent the previous night at the house and had left around 11:30 am that day to go and see his dog. The complainant’s older brother had left for work earlier that morning, leaving the applicant and the complainant at home together.
Soon after the applicant’s boyfriend had left the house, the complainant asked the applicant to go to the shops for her as she was feeling unwell. The applicant agreed and the complainant went into her room to get some money to give to the applicant. The applicant followed the complainant into her bedroom and, as she was counting the money on her bed, he began to unbutton her clothing. The applicant then put his hands down her top and bra, grabbing at her breasts. The complainant felt scared and uncomfortable. The applicant then put his hands inside the complainant’s leggings, and penetrated her vagina with his finger (charge 1 — first act).
Following this penetration, the applicant then bent the complainant over her bed, with her upper body on the bed and her feet on the ground. The complainant asked the applicant what he was doing, and he pulled her leggings down to her ankles. In an effort to deter the applicant, the complainant told him that she had her period, and to stop what he was doing. The applicant told the complainant not to worry, and that he would ‘pull out of her.’ The complainant was scared and crying. While the complainant was bent over the bed, the applicant held his hands on her breasts and inserted his penis into the complainant’s vagina (charge 1 — second act). The penetration lasted for approximately 5 minutes.
The applicant then withdrew his penis from the complainant’s vagina and inserted it into her anus (charge 1 — third act). After having penetrated the complainant’s anus for a short period of time, the applicant withdrew his penis and ejaculated on the complainant’s back and buttocks. The applicant then pulled up his pants and left the room without saying anything.
The complainant contacted her boyfriend in a series of text messages and told him what had occurred. She also contacted her father by phone and told him what had happened. The complainant’s father attended her address and took her back to his house. A short time later that day, the complainant’s boyfriend took her to the police station to report the matter.
The complainant attended a hospital on 25 May 2016 and was forensically examined. The analysis revealed the presence of sperm on the top of the complainant’s buttocks. The applicant was arrested and interviewed that same day. He denied the allegations put to him by police and stated that he had never had any sexual contact with the complainant. On 26 May 2016, the complainant participated in a VARE statement with police. It was during this interview that she disclosed the earlier offending.
The plea hearing
In argument, we were told that the applicant was originally charged with rape but that this charge was withdrawn when the applicant agreed to plead to charges of incest. In opening the matter to the judge, the prosecutor, when identifying ‘some particular aggravating features of [the applicant’s] offending’ said:
There is an element of force, in the very least persistence, in the face of the complainant’s crying and attempts to deter him.
No objection was taken by the applicant’s plea counsel[4] to this statement and, notwithstanding the applicant’s proposed ground 1, no submission was made to the judge, and no reference was made, by the applicant’s plea counsel, to any authority preventing his Honour from taking the asserted aggravating feature into account.
[4]Not counsel who appeared in this Court.
On the plea hearing, the prosecutor tendered a victim impact statement from the complainant. In her victim impact statement, the complainant described being raped by the applicant. She said:
I felt scared, betrayed, hurt, angry, violated and disgusted when I was raped. I have had a lot of trouble sleeping and I had lots of nightmares. I feel paranoid that I am not safe and am anxious all the time. I am always looking over my shoulder. I felt really depressed and had thoughts about cutting myself. I think about the rape a lot and it is really distressing to me. I don’t want to think about it, but the thoughts come. I feel upset and sick when I have these thoughts. I feel upset that it happened. I didn’t eat as much for a long time because I felt sick. I feel upset because I used to be close to [the applicant] and now I have lost that whole relationship with him. [The applicant] was my brother. Things are difficult now in my family.
The applicant tendered four reports dealing with his cognitive, psychiatric and psychological functioning, as follows:
·Dr John Reid, forensic psychiatrist;
·Ms Miriam Latif, psychologist;
·Mr Martin Jackson, consultant clinical neuropsychologist; and
·Mr Peter Guganovic, mental health practitioner.
The reports tendered disclosed that the applicant had been diagnosed, when he was a child, as having an intellectual disability. More recent cognitive testing, however, disclosed that the applicant had a full-scale IQ of 82, being in the ‘low average to average range’. As it was put by Dr Reid, although part of the applicant’s schooling occurred at a special school, recent testing indicated that he did not actually have an intellectual impairment.
The judge was told in detail about the applicant’s background and personal circumstances. Notwithstanding that the applicant appears now not to have an intellectual impairment, he suffers from ADHD, is distractible and has never been able to work. He had no prior criminal history, although he had a subsequent conviction for an incident involving a former housemate. There was an argument, the argument became physical and the applicant injured his housemate. He subsequently pleaded guilty and received a good behaviour bond.
It was submitted on behalf of the applicant that Verdins’[5] principles 2, 5 and 6 were engaged.[6] Counsel for the applicant submitted that a community correction order was an appropriate sentencing disposition.
[5]R v Verdins (2007) 16 VR 269 (‘Verdins’).
[6]Those principles are that an accused’s impaired mental functioning is relevant to sentencing in at least the following ways:
‘2The condition could have a bearing on the kind of sentence that was imposed and the conditions in which it was to be served.
5The existence of the condition at the date of sentencing (or its foreseeable recurrence) could mean that a given sentence would weigh more heavily on the offender than it would on a person in normal health.
6Where there was a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this factor would tend to mitigate punishment.’
On the plea, the prosecutor did not dispute that Verdins had relevant application in the applicant’s case. The prosecutor specifically accepted that Verdins principle 5 had application. She also accepted that it was appropriate for there to be a moderation in respect of general deterrence. She did not, however, make the same concession in respect of specific deterrence. Ultimately, the prosecutor submitted that a period of incarceration was required. As it was put on the plea:
The Crown position will be firm that at best for [the applicant] a community correction order combined with incarceration for the period that we’re limited to [12 months].
Sentencing reasons
The judge commenced his reasons for sentence with a description of the applicant’s offending.[7] In describing the offending, the judge referred to the applicant’s offending on 25 May 2016 as three ‘attacks’ by the applicant on his sister.[8]
[7]DPP v Holland (a Pseudonym) (Unreported, County Court of Victoria, Judge Mullaly, 21 March 2018) [1]–[8] (‘Reasons’).
[8]Ibid [6], [7], [8].
The judge described the ‘deep impact’ of the applicant’s offending upon his sister,[9] before describing the applicant’s offending as ‘a grave example of incest between siblings’.[10] The judge then said:
Your treatment of your sister was not as a family member to be cherished, rather she was sexually abused by you to satisfy your own selfish sexual urge. I note with concern that your attack on 25 May 2016 was only a matter of days after returning to reside in the house with your sister and brother, after your own relationship … had ended.
Your attitude to the victim immediately after your sexual abuse reveals a concerning lack of insight. Not a lot has occurred since to indicate that your insight has developed. In the end, when assessing the gravity of your crimes, I cannot overlook the overpowering that was involved, and the ignoring of any feelings your victim/sister had as you penetrated her digitally and with your penis to the point of ejaculation of her vagina and her anus.
That assessment is not to be seen as considering this crime of incest as another crime, one you are not charged with. What I need to make clear is that the circumstances of this example of sibling incest has significant aggravating and concerning aspects to it. Your moral culpability is complicated by reason of your own lower functioning. You were considered to be intellectually disabled yourself, but that assessment has been reconsidered in the updated reports tendered on your plea.
However, I have factored in your deficits and your lower functioning in seeing your moral culpability is not as high as it might be for another who committed like crimes without the problems you have. This matter does not mean the obvious denunciation of your crime is significantly moderated, such as was discussed by the High Court in the case of Muldrock, but it is a matter that does moderate your penalty slightly.[11]
[9]Ibid [9]–[10].
[10]Ibid [11].
[11]Ibid [11]–[14].
Next, the judge described in some detail the applicant’s personal circumstances and the expert opinions set out in the reports tendered on the plea.[12] As to an assessment of the applicant having a ‘moderate — low risk of sexual reoffending’, the judge said that this was ‘as accurate as such predictions can get’.[13] The judge concluded that in respect of reoffending, the applicant’s ‘prospects are good, especially if [he gets] appropriate directed sexual offending treatment’. The judge, however, said that the applicant was not someone that he had complete confidence in would not reoffend in like manner if the opportunity again presented itself.[14]
[12]Ibid [15]–[28].
[13]Ibid [26].
[14]Ibid.
The judge then described the submissions made to him about the appropriate sentencing disposition, and his consideration of whether a community correction order was appropriate. Specifically, the judge said:
The thrust of the plea, made with great skill and considerable preparation by Ms Munster, was that the just and appropriate sentence was one of a community corrections order. In her submission, the constellation of your personal matters meant that a sentence of incarceration was not required to meet all sentencing purposes. She conceded the gravity of your crimes and your lack of empathy, and remorse, and insight. However, these, if absent, simply do not allow for greater mitigation. I do take into account what was expressed as to your regret.
In her submission, your low functioning, your commitment to treatment, your stable relationship and the help that you provide to your partner, and importantly your plea of guilty, meant that punishment, deterrence and rehabilitation could be adequately met by a lengthy, onerous therapeutic community corrections order.
I keep well in mind the guideline judgment of the Court of Appeal in Boulton in this regard.
Notwithstanding the gravity and the repetition involved in the two crimes, and the dreadful impact on the victim and the high need for denunciation and deterrence to others, the prosecution submitted that a penalty of a combined community corrections order and imprisonment was in range. I had you assessed, and you were found to be a medium risk of reoffending, but suitable nonetheless for a community corrections order. The recommendation was for a community corrections order that required and allowed time for a sex offenders' course.
I have given this matter very anxious consideration, particular to all of the matters that I have referred to, especially those raised in mitigation. I am well mindful of the statutory prohibition on imprisonment unless all the sentencing purposes cannot be met by a sentence not involving incarceration.
The primary sentencing purposes are denunciation, just punishment, and deterrence, together with establishing conditions that will facilitate your reform. This repeated, grave example of disgraceful sexual abuse of your vulnerable sister must be denounced in a way that the community can sense that proper values are being reasserted. Decent family relationships are fundamental in our society. Conduct such as yours, in exploiting vulnerable siblings, must be met with stern punishment.
So too must the message of deterrence be unambiguously expressed by the court. That is, if you embark on sexual abuse of the vulnerable, the punishment that awaits will, except in unusual circumstances, be terms of imprisonment.
Here it is said that your own problems must mean that the circumstances are sufficiently different to allow for a community corrections order. The importance of a sentence being appropriate for the unique circumstances of the offending and the offender was recently restated by the High Court in Dalgliesh. Although both parties considered a community corrections order as within range — although the prosecution submission was in combination with some imprisonment, I have come to the very grave conclusion that the just and appropriate sentence must be one of imprisonment, and for a period that disallows a community corrections order as part of the sentence. There must be some cumulation for the two separate offences, which themselves are representative, as it were, of separate examples of penetration or incest.
I keep well in mind that the maximum term here is five years. However, as I have said, this is a serious example of the offence of incest between siblings. Also, your personal circumstances, though important, are not at a level where the moral culpability is so significantly reduced, or general deterrence so significantly moderated, that a penalty other than that that I have turned to is authorised.
I will allow for a significant period of potential parole, though I have sentenced you on the basis that you may have to do each day of the head sentence. However, I urge you and the parole authorities as far as I can to that organisation, that a sex offenders course while in custody, and continued in the community, would likely facilitate and consolidate your rehabilitation.[15]
[15]Ibid [29]–[38].
Parties’ submissions
Under ground 1, the applicant submitted that the judge took into account, as an aggravating circumstance, the complainant’s lack of consent, contrary to what was said by the High Court in R v De Simoni.[16] On the authority of De Simoni, it was submitted that the absence of the complainant’s consent could not be relied upon for purposes of sentence because that circumstance disclosed the more serious charge of rape (an offence with a 25-year maximum term of imprisonment). The applicant submitted that the judge’s repeated reference to the applicant’s ‘attack’ on his sister and the ‘overpowering’ of her demonstrated the judge’s error.[17]
[16](1981) 147 CLR 383 (‘De Simoni’).
[17]Reasons [6], [7], [8], [11], [12].
In his written case, the applicant conceded that, notwithstanding the complainant’s reference in her victim impact statement to having been raped by the applicant, no De Simoni point was made on the plea. The applicant, however, said that if he had been sentenced for an offence for which he was not convicted then there was a miscarriage of justice that requires correction.
Under ground 2, the applicant submitted that the judge failed to take relevant matters (being Verdins principles 5 and 6) into account. It was submitted that the applicant had relied on the plea on Verdins principles 2, 5 and 6, and nowhere in the judge’s reasons was there any reference to principle 5 or principle 6. The applicant relied upon what this Court said in Tannous v The Queen:[18]
While reasons for sentence need not be lengthy, it is necessary that they expose why the judge has imposed the sentence he or she has and, in the case of mental impairment, how that circumstance has affected the sentence to be imposed. In this regard, it is important that the judge’s reasons include more than an overarching statement that the offender’s mental impairment has been taken into account. The reader should not be left to ask how it has been taken into account. Rather, the judge’s reasons should provide the answer to that question.[19]
[18][2017] VSCA 91.
[19]Ibid [35].
The applicant submitted that the absence of any reference to principle 5 or principle 6 of Verdins, in what are otherwise detailed sentencing remarks, leads to the conclusion that those principles were not taken into account. Moreover, the sentence ultimately imposed was reflective of a failure to take those matters into account.
Under ground 3, the applicant submitted that the individual sentences, order for cumulation and non-parole period were all manifestly excessive having regard to each of the matters particularised in that ground of appeal. Specific emphasis was placed upon the fact that the maximum penalty was only five years. This, together with the other matters relied upon (reduced moral culpability, plea of guilty, lack of antecedents, prospects for rehabilitation, anguish and Verdins principles 5 and 6) required a conclusion that the sentence actually imposed by the judge was wholly outside the range of permissible sentencing options.
In response to ground 1, the respondent submitted that the judge committed no error as alleged by the applicant. The respondent noted that the judge expressly stated that he was not sentencing the applicant for some other crime (rape).[20]
[20]Reasons [13].
Additionally, the respondent submitted that even if the judge concluded that there was a lack of consent and that this was an aggravating circumstance, that conclusion was one that could permissibly be made consistently with authority. In that regard, the respondent referred to this Court’s decision in Clarkson v The Queen.[21] Clarkson was a case involving sexual penetration of a child under the age of 16 years. In that case, the Court[22] said:
[21](2011) 32 VR 361, 371 (‘Clarkson’).
[22]Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA.
As counsel for the appellants pointed out, the Sentencing Act 1991 (Vic) requires Victorian sentencing judges to have regard, amongst other things, to:
·the nature and gravity of the offence;
·the offender’s culpability and degree of responsibility for the offence; and
·the impact of the offence on the victim.
It followed, so the appellants contended, that the victim’s consent must be capable of being a mitigating factor. The fact that the sexual contact was consensual would — or would be likely to — make the offence less grave, reduce the offender’s culpability and lessen the impact on the victim.
In our view, the provisions of the Act to which we have referred preclude the sentencing court from approaching consent in this way. The necessary implication of the provisions is that the presence of consent does not of itself make the offence of sexual penetration of a child under 16 (or of committing an indecent act in the presence of a child under 16) any the less serious. Of itself, the child’s ‘consent’ is irrelevant to the criminality of the conduct. The presumption of harm is unaffected by consent. It follows that neither the gravity of the offence nor the culpability of the offender is altered in any way by the victim’s consent alone. (On the other hand, proven absence of consent will significantly increase both the gravity of the offence and the culpability of the offender. Proof that the offender knew or suspected that the child was not consenting would found a charge of rape.[23])
[23](2011) 32 VR 361, 371 [34]–[36] (citations omitted).
In the respondent’s written case, in response to ground 2, the respondent conceded that it was not apparent from the judge’s reasons that his Honour took into account Verdins principles 5 and 6. As expressed in its written case, the respondent said:
The respondent is prepared to concede that, in this case, the learned judge’s apparent failure to take into account the likely experience of the applicant in custody consequent upon the applicant’s mental condition amounted to an ‘error’ within the meaning of s 281(1)(a) of the Criminal Procedure Act 2009.
As to the evidence about the applicability of Verdins principles 5 and 6 to the applicant, in its written case, the respondent said:
Whilst in the end the evidence did not establish that the applicant suffered from an intellectual disability (properly so called), he was certainly of very low intellectual capacity and he suffered from other infirmities the most pronounced of which was ADHD. The strong opinion of the medical professionals was to the effect that the applicant, by virtue of his mental condition, would find the custodial environment particularly burdensome and that there was a real risk that prison could have a further detrimental effect on his condition.
On the basis of these submissions, the respondent conceded that leave to appeal should be granted on ground 2 and the question that would then arise is whether a different sentence should be imposed.[24] The respondent’s submissions on that issue merged with its submissions in response to ground 3 (the complaint of manifest excess).
[24]See s 281(1)(b) of the Criminal Procedure Act 2009.
In response to ground 3, the respondent, in its written case, submitted that the total effective sentence of 30 months with a non-parole period of 15 months, ‘while very high in the range, does not wholly sit outside the range’s upper limit’. Accordingly, the respondent submitted that the appeal should be dismissed.
The respondent having conceded error in respect of ground 2, in the hearing before us, counsel for the applicant tendered an affidavit sworn by the applicant on 10 September 2018. The affidavit describes the programs and courses that the applicant has engaged in since being sentenced. The affidavit was silent as to whether incarceration had had any detrimental effect upon the applicant’s cognitive or psychological condition.
Upon being provided with a copy of the affidavit, counsel for the respondent submitted that, accepting the truth of the contents of the affidavit, and in the absence of any evidence of any detrimental impact of incarceration on the applicant of the kind referred to in Verdins principles 5 and 6, no different sentence should now be imposed upon the applicant.[25]
[25]Kentwell v The Queen (2014) 252 CLR 601, 617–8 [42].
Analysis
In our view, leave to appeal should be granted but the appeal should be dismissed. We deal first with the applicant’s De Simoni complaint.
The applicant submitted that a miscarriage of justice occurred because he was sentenced for a crime for which he had not been convicted (rape). That submission must be rejected. First, the judge expressly stated that he was sentencing the applicant for incest and not ‘another crime’ with which the applicant had not been charged.[26]
[26]Reasons [13].
Secondly, it is far from clear to us that the judge went so far as to find that the applicant, in committing incest against his sister, committed the crime of rape.[27]
[27]Cf Reasons [12].
Thirdly, a difficulty with the applicant’s submission that no account should be taken of any ‘unwillingness’ by the victim is that if that unwillingness could be demonstrated to amount to rape then no account could be taken of it where, in a different case, not amounting to rape, such an unwillingness would be an aggravating circumstance capable of being taken into account. Thus, on the applicant’s submissions, what might be regarded as objectively more serious criminal conduct, involving sentencing for the same offence, would fall for lesser punishment.
Fourthly, the applicant’s submissions in this Court ignored the fact that his pleas to incest were the product of an agreement with the Crown not to pursue a charge of rape, in circumstances where the agreed prosecution summary on the plea contained, as aggravating facts, the fact that penetrations of the complainant occurred against her wishes. In our view, the applicant should not now be allowed to seek to depart from the agreed basis upon which the plea proceeded in front of the judge.
Fifthly, De Simoni is, in any event, distinguishable from the present case. De Simoni was a case concerning a robbery where the accused had also wounded his victim. In that case, there was an act of violence in the course of the robbery that was part of the offence charged, but the resultant wounding was not — the wounding should have been charged as a particular under a provision of the Western Australian Criminal Code (s 582), creating a different offence.[28] In the present case, one of the elements of the offence with which the applicant was charged was the sexual penetration of his sister. The circumstances, method and mode of that penetration were clearly relevant matters to be taken into account as part of the sentencing synthesis. In contrast, in De Simoni, the wounding by the accused gave rise to a different offence.
[28]De Simoni (1981) 147 CLR 383, 394 (Gibbs CJ).
The penetration of the complainant by the applicant occurred in circumstances involving her being overpowered. While De Simoni prohibited the applicant from being sentenced for an offence with which he was not charged, that case did not require the judge in the present case to ignore the very circumstances that constituted the offence with which the applicant was charged.
Sixthly, the actual sentences, order for cumulation and non-parole period imposed on the applicant by the judge strongly suggest that the applicant was not in fact punished for the crime of rape. If the judge had sentenced the applicant as if he
had committed a rape then, notwithstanding that the maximum penalty for incest with a sibling is only five years, one might have expected a significantly longer sentence than that which was imposed by the judge. Before dealing, however, with the appropriateness of the sentence imposed, we turn to consider the applicant’s complaint about the judge’s failure to make reference to Verdins principles 5 and 6.
The judge’s sentencing reasons are clear and detailed. Having regard to the detail of those reasons on other matters, the submissions made on the plea, and the expert evidence tendered showing that incarceration would be more burdensome for the applicant and that there was a risk that incarceration would make his condition worse, it is surprising that the judge made no reference to these matters in his reasons for sentence.
In other circumstances, we might have been persuaded that a judge as experienced in the criminal law as his Honour was unlikely to have overlooked the multiple ways upon which Verdins was relied upon in this case. Ultimately, however, we have decided to accept the respondent’s concession that the judge’s reasons, in failing to make reference to these issues, disclose error. The judge’s reasons contain detailed descriptions of parts of the expert reports about the applicant’s cognitive and psychological functioning, but none of the parts discussed or extracted in the reasons relate to those parts of the reports that dealt with the increased burdensomeness of incarceration or the increased risk of an adverse reaction to incarceration. If, in discussing the expert evidence, the judge had extracted any of those parts of the reports, we may have come to a different conclusion.
Having accepted the respondent’s concession as error, the question now becomes whether some different sentence should now be passed. There is an overlap between that question and the issue of whether the sentence that was actually passed is manifestly excessive. We will thus deal with those questions together.
In our view, the judge was correct to describe the applicant’s offending as a grave example of incest between siblings.[29] The offending was not isolated. It involved the imposition of the applicant’s will over the complainant, without regard to her feelings. It was selfish and, notwithstanding the applicant’s withdrawal, it involved the risk of sexually transmitted infection and pregnancy.
[29]Reasons [11].
Notwithstanding the mitigating factors relied upon by the applicant, to which we have already referred, a total effective sentence covering the completeness of the applicant’s offending against the complainant of only 50 per cent of the maximum term of imprisonment for one offence was imposed. In our view, there is nothing inappropriate in the imposition of such a term. Moreover, a non-parole period of 50 per cent of the total effective sentence was, if anything, moderate.
Indeed, notwithstanding our acceptance that error has been shown in the judge’s failure to make specific reference to Verdins principles 5 and 6, we think it likely that the sentence imposed by the judge was in part reflective of a real acceptance by the judge of the applicant’s psychological and cognitive deficits and their mitigative effects. In any event, however, having regard to the seriousness of the applicant’s offending, we are not now persuaded that any different sentences, order for cumulation or non-parole period, should now be made.
It follows from the above that the applicant’s complaint of manifest excess is not reasonably arguable. As has been said many times before, manifest excess is a stringent ground, difficult to make out. To succeed on this ground, the applicant must show that the sentence is wholly outside the permissible range of sentencing options that were open to the judge. Having found that no different sentence should now be passed, the applicant’s complaint of manifest excess cannot be upheld
Finally, we should say for the sake of completeness that to the extent that the respondent maintained its written submission that the sentence was ‘very high in the range’, we reject that submission is being overly generous to the applicant. In our view the sentence was appropriate at the time it was passed and, as we have already said, no different sentence should now be passed.
Conclusion
Leave to appeal will be refused on grounds 1 and 3. Leave to appeal will be granted on ground 2. The appeal, however, will be dismissed.
- - -
8
5
0