Jacob Turner (a pseudonym)[1] v The Queen
[2018] VSCA 24
•15 February 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0250
| JACOB TURNER (a pseudonym)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]To ensure that there is no possibility of identification of the complainant, this judgment has been anonymised by the adoption of a pseudonym in the place of the name of the applicant.
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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE (DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009)
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| JUDGE: | TATE JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | Determined on the papers |
| DATE OF JUDGMENT: | 15 February 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 24 |
| JUDGMENT APPEALED FROM: | DPP v Turner (a pseudonym) (Unreported, County Court of Victoria, Judge Dean, 20 October 2017) |
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CRIMINAL LAW – Sentence – Application for leave to appeal – Rape – Pregnancy – Plea of guilty – Complainant intellectually disabled daughter of de facto partner – Sentenced to seven years’ imprisonment – Non-parole period of five years – Whether judge erred in treating offending as an act of commission rather than omission – Whether state of mind of not giving any thought to whether the complainant was not consenting or might not be consenting rendered offender less culpable – Manifest excess – Leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | No appearance | Doogue + George Defence Lawyers |
| For the Crown | No appearance | John Cain, Solicitor for Public Prosecutions |
TATE JA:
This is an application by Jacob Turner (‘Turner’) for leave to appeal against the sentence imposed on him by a judge of the County Court following his guilty plea to one charge of rape. He was sentenced on 20 October 2017 as follows:[2]
[2]DPP v Turner (a pseudonym) (Unreported, County Court of Victoria, Judge Dean, 20 October 2017) (‘Sentencing reasons’).
Charge on indictment Offence Maximum Sentence Cumulation 1. Rape - s 38 Crimes Act 1958 25 years 7 years N/A Total Effective Sentence: 7 years Non-Parole Period: 5 years Pre-sentence detention declared: 2 days 6AAA Statement: 9 years’ imprisonment with a non-parole period of 6 years.[3] Other relevant orders: The applicant was ordered to comply with the requirements of the Sex Offender Registration Act 2004 for 8 years. [3]Although the judge declared a notional non-parole period of seven years under s 6AAA in his sentencing reasons, the Record of Orders signed by the judge shows a non-parole period of six years in the s 6AAA declaration.
Turner seeks leave to appeal on the following grounds:
Ground 1
The sentencing judge erred in treating the applicant’s offending as an act of commission rather than omission:
(a)the sentencing judge erred in finding the offending to be ‘predatory and opportunistic’;
(b)the sentencing judge erred in finding that the applicant’s lack of explanation for the offending betokened a lack of remorse.
Ground 2
The sentence is manifestly excessive having particular regard to:
(a) the applicant’s level of culpability being one of inadvertence;
(b) the nature and gravity of the offending;
(c) the applicant’s guilty plea;
(d) the applicant’s circumstances;
(e) current sentencing practice.
For the reasons that follow, I would refuse leave to appeal.
The offending and the judge’s findings
On 31 July 2014, Turner took the complainant, the daughter of his partner, to the doctor because she was feeling unwell. A test revealed she was pregnant and a decision was taken to terminate the pregnancy. An order of VCAT was required as the complainant, who suffers from a moderately severe intellectual disability and has an IQ of 49, was not competent to consent to the procedure. Biological samples were retained following the termination and DNA testing revealed Turner to be the father.
At the time of the offending Turner had been residing with the complainant’s mother for approximately nine years. He was then aged 52. The complainant was aged 21. Her disability means that 99.9 per cent of the adult population function at a higher level than she does. As a result of her moderately severe intellectual disability, she functions as a primary school child and requires full time care to carry out conceptual tasks and the decision-making of day to day life. The judge found that
[Turner] had known [the complainant] for nine years and must have been fully aware of the nature and consequences of her disability. [Turner] must have known that she functioned in ways akin to that of a child.[4]
[4]Sentencing reasons [9].
Turner denied having sexual intercourse with the complainant in two records of interview and advanced explanations, which the judge described as ‘plainly untenable’,[5] as to how she had become pregnant. Ultimately, Turner admitted having sexual intercourse with her in his defence response filed with the court, but raised an issue about the capacity of the complainant to consent to an act of sexual penetration. The judge was of the view that it was clear that the complainant did not have the capacity to consent to sexual activity.
[5]Ibid [8].
Although Turner pleaded guilty, the plea was not an early one. It was made after committal and after the matter was listed for trial, two days of pre-trial argument had taken place, and a special hearing had been conducted in respect of the complainant’s evidence at which she was cross-examined.
The judge referred to a victim impact statement prepared on behalf of the complainant by a former carer and friend. He accepted that the offending and its consequences had ‘a deeply traumatic effect’[6] on the complainant. After the termination, the complainant left the family home and went into supported care, it would seem because her mother elected to continue living with Turner. The judge found that the fact of the pregnancy and termination aggravated Turner’s rape of a vulnerable disabled person in his care. He held that:
Vulnerable persons such as the complainant must be protected by the courts from offending of this nature. The sentence that I impose must be calculated to deter others from offending in this matter. You have exhibited no remorse or insight into your offending. You have offered no explanation for it and, in my opinion, specific deterrence is a relevant sentencing consideration in your case.
Your predatory and opportunistic crime must be the subject of unequivocal denunciation by this court and you must be punished for what you have done.[7]
[6]Ibid [12].
[7]Ibid [13]-[14].
The judge did not accept a submission in mitigation that Turner had a less serious state of mind because he had not given any thought to whether the complainant was not consenting or might not be consenting. He said:
I do not accept that it mitigates your offending to any significant degree in this case. The complainant was an intellectually disabled person who was in your care. She was dependent upon you. ...
In the circumstances of this case, not giving any thought to whether she was consenting or might not be consenting is closely related to an awareness of that fact.[8]
[8]Ibid [9]–[10].
The judge did accept, however, that Turner had no relevant criminal history, and had suffered from abuse and disadvantage during his childhood and developmental years. He noted that Turner had limited schooling and his literary capacity ‘is correspondingly limited’.[9] In terms of the effect of imprisonment, the judge accepted that Turner’s range of health issues, which will require treatment and medication, ‘will no doubt compound the hardship that you will experience’.[10] He also observed that this would be the first time that Turner would be incarcerated.
[9]Ibid [15].
[10]Ibid [17].
On the question of remorse, the judge recorded that Turner’s counsel had submitted that the plea of guilty, made after a number of steps in the process had taken place, ‘is only limited evidence of remorse and he specifically stated that true remorse is not relied upon in this case’.[11] Later, the judge said:
In the circumstances of this case I am satisfied that your prospects for rehabilitation are to be approached with caution. You have shown little or no remorse for your offending. The offence, as I have said, was both predatory and opportunistic and you have offered no explanation for it at all. It was a gross breach of trust that was placed in you … .[12]
[11]Ibid [3].
[12]Ibid [19].
Ground 1 —omission rather than commission?
In relation to proposed ground 1, Turner submits that this case is unusual because his state of mind falls into that category identified by s 38(2)(a)(ii) of the Crimes Act,[13] as it was formulated at the time, namely, that he did not give any thought to whether the complainant was not consenting or might not be consenting. This state of mind has been described as ‘inadvertence recklessness’.[14] Given the particularisation of the charge[15] and the absence of any information about the circumstances of the offence, Turner submits it was not open to the judge to conclude that Turner’s conduct was ‘predatory and opportunistic’. He argues that inadvertence cannot be predatory or opportunistic. He claims that the judge’s use of this language indicates that he mischaracterised the offending as an act of commission rather than one of omission. Further, while the judge was clearly influenced by the absence of an explanation from Turner, in a case of inadvertence ‘the matter does not admit of much or any explanation.’
[13]At the relevant time, s 38(2) provided: ‘A person commits rape if — (a) he or she intentionally sexually penetrates another person without that person’s consent — (i) while being aware that the person is not consenting or might not be consenting; or (ii) while not giving any thought to whether the person is not consenting or might not be consenting; …’.
[14]Dale Smith, ‘Reckless Rape in Victoria’ (2008) 32 Melbourne University Law Review 1007, 1008.
[15]The charge on the indictment refers to penetration ‘while being aware that [the complainant] was not consenting or might not be consenting, or while not giving any thought to whether she was not consenting or might not be consenting.’ The offence is stated to be contrary to s 38(1) of the Crimes Act 1958 as amended by the Crimes Amendment (Rape) Act 2007 and in operation between 1 January 2008 and 30 June 2015. It was apparent from the plea that Turner pleaded guilty to the charge that he intentionally sexually penetrated another person without that person’s consent and while not giving any thought to whether the person is not consenting or might not be consenting.
The Crown submits that Turner’s characterisation of his offending as acts of ‘omission’ rather than commission is incorrect. He intentionally penetrated the complainant. This was not a case of failing to act when he was legally required to do so.[16] The state of mind of inadvertence was merely one possible form of liability under s 38(2), not a matter which mitigated his conduct. Given that Turner had known the complainant through his nine year relationship with her mother and was acquainted with her intellectual disability, his decision to have sexual intercourse with her and not give any thought to whether she was not or might not be consenting was particularly serious. The description of that behaviour as predatory and opportunistic was apt; knowing her limitations, he picked her to engage in a deliberate act whether or not she was consenting. The Crown submitted that, contrary to Turner’s submission that inadvertence does not admit of any explanation, an explanation may have assisted the sentencing process by providing some insight into his conduct. The lateness of his guilty plea following earlier denials, and its limitations, were also matters showing his lack of remorse.
[16]See Lane v The Queen (2013) 241 A Crim R 321, 337–8 [59]-[62] (NSW Court of Criminal Appeal), Burns v The Queen (2012) 246 CLR 334.
I agree.
In my view, Turner’s use of the word ‘omission’ is apt to mislead. This is not a case of a failure to discharge a duty, or an oversight. There was no lack of action on Turner’s part. Turner actively engaged in the conduct that resulted in the complainant’s pregnancy; that is, his plea of guilty indicates that he accepts that the penetration was intentional. Moreover, the circumstances demonstrate that the offending was a gross breach of trust. As the judge found, Turner well knew that the complainant was essentially a child in an adult woman’s body. In my view, Turner’s failure to consider whether or not the complainant was consenting to the intimate physical penetration of her body reveals a reckless disregard for her humanity and her dignity as a person of inherent moral value. I consider that the judge’s use of the words ‘opportunistic’ and ‘predatory’ was entirely appropriate. Turner found himself in circumstances in which he could engage in conduct for his own gratification in relation to a person with severely compromised human agency. This is fundamentally predatory.
Furthermore, Turner’s use of the word ‘inadvertence’ warrants scrutiny. It may misleadingly suggest that this fault element is the equivalent of negligence, reflecting less culpability than recklessness. In the article, ‘Reckless Rape in Victoria’, authored by Associate Professor Dale Smith, relied upon by Turner, Smith makes it clear that, in his opinion, failing to consider whether the complainant is not consenting is not a form of negligence; it is not a question of falling below a standard imposed by law but rather having a culpable state of mind.
He says:
[O]ne might regard ‘inadvertence recklessness’ as a type of negligent rape, since the accused is being punished for the absence of a certain state of mind (that is, for failing to consider whether the complainant is consenting), rather than for the presence of a particular state of mind (such as awareness that the complainant might not be consenting). However, ‘inadvertence recklessness’ is best regarded as a type of reckless rape because the focus is on the presence or absence of a particular mental state, rather than on whether the accused met a standard of reasonableness imposed by the law. More generally, while the word ‘reckless’ does not appear in the relevant provisions of the Act, ‘reckless rape’ is a useful label for a certain type of rape case — that is, one in which the accused was not aware that the complainant was not consenting, and yet is still liable because of the accused’s state of mind at the time. This is quite different to liability being imposed for failing to meet a standard of reasonableness imposed by the law.[17]
[17]Smith, above n 14, 1008-9 (emphasis in original) (citation omitted).
He sets out the basis upon which the relevant amendments had been made to the legislation and states:
In its final report into sexual offences, the VLRC [the Victorian Law Reform Commission] stated that ‘[n]o accused should be acquitted just because he has completely failed to turn his mind to the question of consent.’
Similarly in R v Kitchener, Kirby P stated:
To criminalise conscious advertence to the possibility of non-consent, but to excuse the reckless failure of the accused to give a moment’s thought to that possibility, is self-evidently unacceptable. … Such a law would simply reaffirm the view that our criminal law, at crucial moments, fails to provide principled protection to the victims of unwanted sexual intercourse, most of whom are women.[18]
[18]Ibid 1011 (citations omitted).
He goes on to express his agreement that a failure to consider whether a complainant is consenting, ‘inadvertence’, is appropriately treated as satisfying the fault element for rape:
I agree. Inadvertence recklessness — that is, a failure to consider whether complainant is consenting — should be treated as a further way of satisfying the fault element for rape, supplementing possibility recklessness. In the absence of consent, sexual activity causes great harm, and so the accused should have to take the relatively simple step of turning their mind to the issue of consent before proceeding.[19]
[19]Ibid. Smith goes on to query the precise wording of s 38(2)(a)(ii) and whether it is intended to draw a distinction between considering whether the complainant is consenting and considering whether the complainant is not consenting.
In my view, the circumstances are more grave where, as here, an accused is aware of the limitations on the complainant’s capacity to function. This is all the more so where the complainant is incapable of giving consent.
I consider that proposed ground 1 is not reasonably arguable.
Ground 2 —Manifest excess
Turning to proposed ground 2, the ground of manifest excess, Turner submits that the sentence is outside the range of sentences which were open to the sentencing judge. His submission is based in part on an argument that because he pleaded guilty to the offence by reason of ‘inadvertence’, the need for the sentence to give effect to the principles of general deterrence, denunciation and punishment is reduced. He contends that, as he put it, a state of mind of inadvertence ‘is always objectively less culpable than one of intent or what has been termed ‘possibility recklessness’ (proceeding with sexual penetration despite being aware that another person might not be consenting)’. Although the same maximum penalty applied for the offence of rape in respect of this state of mind as others, he submits that:
this is likely due to the view expressed by the Victorian Law Reform Commission in its Sexual Offences: Interim Report which found that the creation of an offence of negligent sexual penetration carrying a lower maximum sentence would create more problems than it would solve, rather than a view about the seriousness of each of the forms of culpability.
Turner submits that other offences which have a similar fault element have maximum penalties far lower than the equivalent offence requiring intention. He points to the offence of negligently causing serious injury which has a maximum sentence of 10 years’ imprisonment whereas intentionally causing serious injury has a maximum sentence of 20 years’ imprisonment.
I have already rejected the submission that the mental state of ‘inadvertence’ is here to be assimilated to that of negligence. I regard this submission as proceeding upon a false premise, as Smith demonstrates. Parliament had determined that the mental state of not giving any thought to whether the person is not consenting or might not be consenting is appropriate to satisfy the fault element of rape and to be subject to the same maximum sentence (25 years) as the alternative mental states that satisfy the fault element. It is for a sentencing judge, and for this Court, to apply the law faithfully to reflect that legislative intention.
Tuner also submits that the sentence was manifestly excessive as there was no evidence of: premeditation; the use of a weapon; any additional humiliation or degradation of the complainant; the use of any additional violence or threats of violence; the ignoring of any warnings or protests by the victim; any ‘perverted’ or ‘depraved’ sexual activity; any video recording or photographs of the complainant during sexual activity. There was also no evidence that the rape occurred over an extended period. Turner was charged with, and convicted of, a single isolated act of indeterminate duration. In my view, however, the sentencing judge was well aware of the nature of the offending. It was apparent that there was an absence of certain features that would otherwise have rendered the offending more serious.
Turner acknowledges that there were aggravating features of the offending including: the complainant’s intellectual disability and her consequent reliance upon Turner; Turner’s role as in effect the step-father of the complainant over the previous nine years and the relationship of trust and dependence; and the victim’s pregnancy and subsequent termination.
The aggravating features are indeed grave. So much was made plain by the judgment of this Court in Director of Public Prosecutions v Dalgliesh (a pseudonym).[20]Dalgliesh had been charged with incest[21] (which carries the same maximum penalty as rape) in circumstances where he had sexually penetrated his step-daughter with the consequence that she became pregnant and the pregnancy was terminated. The Court remarked that ‘the pregnancy was a highly aggravating factor’.[22]
[20][2016] VSCA 148.
[21]Amongst other charges.
[22][2016] VSCA 148 [25].
On appeal, the High Court[23] also addressed the issue of the significance to be given to current sentencing practice and the need for sentences to reflect changes in the community evaluation of the moral gravity of an offence. The plurality specifically adverted to the requirement in s 5(2) of the Sentencing Act 1991 that one of the considerations to which a sentencing court must have regard is current sentencing practice:
In R v Kilic, this Court said of s 5(2) of the Sentencing Act:
The requirement of currency recognises that sentencing practices for a particular offence or type of offence may change over time reflecting changes in community attitudes to some forms of offending. For example, current sentencing practices with respect to sexual offences may be seen to depart from past practices by reason, inter alia, of changes in understanding of the long-term harm done to the victim.
Those observations are distinctly apposite here. The decision in Kaye was delivered in 1986. In the three decades since, sexual abuse of children by those in authority over them has been revealed as a most serious blight on society. The courts have developed — as the Court of Appeal accepted in ‘emphatically’ rejecting the respondent’s submission that ‘there was no violence accompanying the offence’ — an awareness of the violence necessarily involved in the sexual penetration of a child, and of the devastating consequences of this kind of crime for its victims.[24]
[23]DPP v Dalgliesh (a pseudonym) (2017) 349 ALR 37.
[24]Ibid 49 [56]-[57] (Kiefel CJ, Bell and Keane JJ) (citations omitted).
This approach was supported also by the remarks of Gageler and Gordon JJ who said:
Section 5(2)(b) does not in terms provide that current sentencing practices set boundaries on what a court may reasonably impose as a sentence. The court must have regard to current sentencing practices, as well as every other matter listed in s 5(2). Current sentencing practices stand in the same position as every other matter listed in s 5(2). There is nothing to suggest that current sentencing practices should be treated in a conceptually different manner from any of the other listed matters. Of course, an express purpose of the Sentencing Act is to promote consistency of approach in the sentencing of offenders, to which the requirement in s 5(2)(b) may contribute. But that purpose, which reflects the well-recognised importance of consistency in the application of sentencing principles, provides no basis for treating s 5(2)(b) as though it were a statutory command to sentence within a ‘band’ derived from current sentencing practices.[25]
[25]Ibid 54 [82] (citations omitted).
They went on to say that it would be wrong to treat comparable cases as imposing a fixed constraint:
Sentences are not binding precedents, but are merely ‘historical statements of what has happened in the past’. As was said in Hili v R , ‘[t]hat history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits’ (emphasis added). Examination of sentences imposed in comparable cases may inform the task of sentencing but such examination goes beyond its rationale when it is used to fix boundaries that, as a matter of practical reality, bind the court.[26]
[26]Ibid 54-5 [83] (emphasis in original) (citations omitted).
The original sentence imposed on Dalgliesh in respect of the charge of incest that resulted in the pregnancy was three years and six months’ imprisonment. When remitted to this Court,[27] on a finding of manifest inadequacy, he was re-sentenced on that charge (charge 1 on the Indictment) to seven years and six months’ imprisonment. The Court considered it important that the sentence imposed protect the vulnerable by acting as a deterrent and that it reflect the community’s firm denunciation of the gross breach of trust.
[27]DPP v Dalgliesh (a pseudonym) [2017] VSCA 360.
In that context this Court observed:
Sentencing for parent-child incest of the kind that gave rise to charge 1 must reflect the respondent’s grave breach of trust. It must act as a deterrent, general and specific, and it must signify the community’s firm denunciation of conduct of this kind.
In Director of Public Prosecutions v Short this Court observed:
Those who are minded to engage in such behaviour and exercise either their physical power or that arising from their dominant relationship position over vulnerable persons must anticipate the imposition of substantial terms of imprisonment. The Courts, when dealing with such cases, must have regard to the vindication of the community’s social values, pre-eminent among which are the protection of the personal integrity and physical safety of its citizens.[28]
[28]Ibid [73]-[74] (citations omitted).
Turner relies on a variety of sentencing decisions for the offence of rape in order to demonstrate that the circumstances in those cases are more grave than the circumstances here. These include DPP v Werry[29] (seven years on a plea of not guilty); Singh v The Queen[30] (on appeal, five years and six months on a plea of not guilty); Johns (a pseudonym) v The Queen[31] (on appeal, eight years head sentence for rape (charge 7), six years imprisonment for rape (for each of charges 1, 3, 4, 5 and 6); Mulligan (a pseudonym) v The Queen[32] (on appeal, a head sentence of seven years’ imprisonment for each of three charges of rape); and Di Giorgio v The Queen[33] (six years’ imprisonment for rape (charge 4), three years and nine month’s imprisonment for rape (charge 3) and three years and six months’ imprisonment for rape (charge 2)). Some of these offences occurred accompanied by humiliation and violence in addition to the inherent violence of the rape.
[29](2012) 37 VR 524.
[30][2014] VSCA 250.
[31][2016] VSCA 97.
[32][2017] VSCA 94.
[33][2016] VSCA 335.
It is noteworthy, however, that none of these cases involved the significantly aggravating factor of pregnancy (nor the trauma of termination). The sentences were often imposed in the context of multiple offences. None involved the gross breach of trust between a step-father and a step-daughter. None involved a complainant who was intellectually disabled.
Turner relied upon other cases that involved lesser sentences being imposed for rape.[34]
[34]Turner relied upon Tiburcy v The Queen [2010] VSCA 307 (a head sentence of four years’ imprisonment on each of two charges of rape (16 year old daughter of former partner)); BS v The Queen [2013] VSCA 108 (for three charges of rape, five years and six months on charge 1, five years on each of charges 2 and 3); Underwood (a pseudonym) v The Queen [2017] VSCA 282 (five years on each of three charges of rape); and DPP v Cooper (a pseudonym) [2017] VSCA 8 (on a Director’s appeal, sentence for rape increased to four years and six months (11-12 year old step-daughter)).
Importantly, there have been a number of cases following either the High Court appeal in Dalgliesh or this Court’s sentencing disposition on the remitter in Dalgliesh. These include Kalofolias v The Queen,[35] Shrestha v The Queen,[36] Matheas v The Queen,[37] and Director of Public Prosecutions v Davis.[38]
[35][2017] VSCA 308 (‘Kalofolias’).
[36][2017] VSCA 364 (‘Shrestha’).
[37][2017] VSCA 330 (‘Matheas’).
[38][2017] VSCA 341 (‘Davis’).
In Kalofolias, the offender received a sentence of six years’ imprisonment with a non-parole period of four years for one charge of rape. He had entered a late guilty plea. The offending involved digital penetration of the 18 year old victim after she became unknowingly intoxicated. There was a significant age disparity and she was the employee of the offender. This Court refused leave to appeal on the basis of manifest excess.
In Shrestha, the appellant had been found guilty by a jury of one charge of rape by digital penetration and sentenced to six years’ imprisonment with a non-parole period of four years. The offending involved a struggle in a car park where the offender attacked a stranger, forced her to the ground, and inserted two fingers into her vagina before being pushed off and running away. The offending was characterised as an ‘upper mid-level example of the offence of rape’.[39] The Court of Appeal dismissed the offender’s sentence appeal on the ground of manifest excess and indicated that ‘the general run of sentences for digital rape is well below what is necessary to reflect the objective gravity of that offence, and the moral culpability of the offender’.[40]
[39]Shrestha [2017] VSCA 364 [24].
[40]Ibid [30]. The Court went on to say: ‘[W]e consider that there must be an upward adjustment in sentences for offences of digital rape committed in circumstances that are broadly similar in objective gravity to the offence of which the appellant was convicted’: (at [31]).
In Matheas, the offender had been found guilty by a jury on one charge of rape and sentenced to eight years’ imprisonment. He was sentenced as a serious sexual offender and the judge ordered that he serve six years of the sentence cumulatively on a sentence he was already serving for three previous convictions for rape. His new total effective sentence for the four convictions of rape was 16 years’ imprisonment with a non-parole period of 12 years. The offender had lured a 17-year-old girl back to his home before violently threatening and subduing her, penetrating her with his penis and ejaculating inside her. The offending was characterised as in the ‘moderate to high range of seriousness’.[41] The appeal against sentence on the grounds of manifest excess was dismissed.
[41]Matheas [2017] VSCA 330 [10].
In Davis, the offender had pleaded guilty to four charges of rape for which he received a sentence of eight months’ imprisonment combined with a community correction order of three years. In that case, the victim had woken to the offender between her legs licking her vagina. He then inserted his fingers into her vagina, and then her anus, before attempting to have penile/vaginal sex with her. At this point she awoke fully and pushed him away. The offender had impaired mental functioning. He was resentenced by the Court of Appeal to a total effective sentence of four years and six months’ imprisonment with a non-parole period of three years and three months.[42]
[42]The Court of Appeal stated that if the offender had not pleaded guilty, he would have received a total effective sentence of six years and six months’ imprisonment with a non-parole period of five years.
None of the post-Dalgliesh cases mentioned involved the gross breach of trust that occurred here nor was the aggravating factor of pregnancy present.
In my view, the sentence imposed upon Turner of seven years’ imprisonment is well within range in the particular circumstances of this offending. With the recognition that comparable cases may provide a yardstick but are not to serve as a fixed constraint, the most comparable circumstances to the offending here are to be found, in my view, in Dalgliesh. As mentioned, this also involved a gross breach of trust between step-father and step-daughter and the significantly aggravating factors of pregnancy (and termination). The victim was a child (aged 13 at the relevant time) rather than an adult woman, as here, but the victim did not have an intellectual disability. That disability, as described, limited the complainant’s capacities to such an extent that she functions as a primary school child. While the offence of incest differs from that of rape, they both share the same statutory maximum and, while incest inherently involves a breach of trust, the rape perpetrated here also involved such a breach. As mentioned, this Court, on the remitter in Dalgliesh, imposed a sentence of seven years and six months’ imprisonment.
Turner also submits that the sentence is manifestly excessive because he did not receive a substantial reduction in his sentence to which he was entitled by reason of his guilty plea. He acknowledges, however, that the guilty plea could not be relied upon as evidence of true remorse and accepts that he is not entitled to the full weight of an early guilty plea with its full utilitarian value. Nevertheless, he submits, the plea of guilty had some utility and this is not reflected in the sentence. However, this submission faces the difficulty that the sentencing judge made a s 6AAA declaration to the effect that he would have imposed a sentence of nine years’ imprisonment but for the plea of guilty. A reduction of two years in that context is, in my view, an ample reflection of the utility of Turner’s plea.
Conclusion
I consider that neither proposed ground 1 nor proposed ground 2 is reasonably arguable.
Moreover, even if either proposed ground is reasonably arguable, I am of the view, pursuant to s 280 of the Criminal Procedure Act 2009, that there is no reasonable prospect that this Court would impose a less severe sentence than the sentence first imposed.
I refuse leave to appeal.
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