Jacob Turner (a pseudonym)[1] v The Queen (No 2)

[2018] VSCA 181

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 250

JACOB TURNER (a pseudonym)[1]	Applicant
v
THE QUEEN (No 2)	Respondent

[1]To ensure that 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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ELECTION TO HAVE AN APPLICATION FOR LEAVE TO APPEAL DETERMINED BY
THE COURT OF APPEAL PURSUANT TO S 315 OF THE
CRIMINAL PROCEDURE ACT 2009

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JUDGES:	PRIEST and HARGRAVE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	Determined on the papers
DATE OF JUDGMENT:	26 July 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 181
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 – Election to renew application for leave to appeal against sentence pursuant to s 315(2) of the Criminal Procedure Act 2009 – Rape of intellectually disabled daughter of de facto partner – Pregnancy – Plea of guilty – Sentenced to seven years’ imprisonment with non-parole period of five years – Whether judge erred in treating offending as an act of commission rather than omission – Whether sentence manifestly excessive – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
No appearances

PRIEST JA
HARGAVE JA:

1. During the period of May to July 2014 the applicant raped ‘BLS’, the intellectually disabled daughter of his de facto partner.

1. Ultimately, he pleaded guilty in the County Court to a charge of rape.[2]  The indictment alleged that between 1 May and 31 July 2014, the applicant raped BLS

by intentionally sexually penetrating her by introducing his penis into her vagina without her consent, while being aware that she 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.

[2]Crimes Act 1958, s 38(1). The maximum penalty is 25 years’ imprisonment.

1. The applicant’s crime came to light in late July 2014, after BLS complained of being unwell.  The applicant took her to a doctor.  A pregnancy test showed her to be pregnant.  Subsequently, on 9 October 2014, the pregnancy was terminated, consent for that procedure having been given by the Victorian Civil and Administrative Tribunal.[3]  Biological material obtained from the procedure was sent to the Victorian Police Forensic Services Centre for DNA examination.  The applicant was revealed to be the father.

   [3]See Guardianship and Administration Act 1986, s 39.

1. At the time of the offending, the applicant was aged 52, and BLS was aged 21.  BLS has an IQ of 49.  Her intellectual disability is such that 99.9 per cent of the adult population function at a higher level than she does.  She functions at the level of a primary school child and requires full time care to carry out conceptual tasks and the decision-making of day to day life.  A psychiatrist, who assessed BLS on 11 March 2017, concluded that, as a result of her intellectual disability, BLS would not have had any capacity to refuse consent to sexual penetration by the applicant.  In his sentencing remarks, the judge observed that the applicant, who had been residing with BLS’s mother for some nine years, ‘must have known that she functioned in ways akin to that of a child’.

1. In two records of interview with police, the applicant denied sexual intercourse with BLS and advanced untenable explanations as to how she became pregnant.  Although he eventually pleaded guilty to rape, his plea was not an early one, being entered after committal and after the matter was listed for trial in the County Court.  Indeed, by the time it was entered, two days of pre-trial argument had taken place, and a special hearing had been conducted in which BLS was cross-examined.  Initially, in his defence response filed with the court, the applicant admitted that sexual intercourse had taken place, but he raised an issue about the capacity of the victim to consent to an act of sexual penetration.

1. Following a plea, on 20 October 2017 the judge sentenced the applicant to be imprisoned for seven years, and fixed a non-parole period of five years.[4]

   [4]Pursuant to s 6AAA of the Sentencing Act 1991, the judge declared that, but for the plea of guilty, he would have sentenced the applicant to be imprisoned for nine years, with a non-parole period of seven years.

1. On 15 February 2018 Tate JA refused the applicant leave to appeal against his sentence.[5]

   [5]Turner (a pseudonym) v The Queen [2018] VSCA 24.

1. Pursuant to s 315(2) of the Criminal Procedure Act 2009, the applicant has elected to renew his application for leave to appeal against sentence on two grounds:

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.

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.

1. We too would refuse leave to appeal.  Our reasons follow.

Ground 1

1. In his sentencing remarks, the sentencing judge described the applicant’s offending as ‘predatory and opportunistic’.  He also observed:

Your plea of guilty to the charge of rape was entered to a charge that particularised your state of mind regarding consent as follows, ‘while not giving any thought to whether she was not consenting or might not be consenting’.  Counsel submitted that this is a less serious state of mind [than] knowledge of the absence of consent of the complainant to the act of sexual penetration alleged.  While that may be so in some instances, 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.  You had known her for nine years and must have been fully aware of the nature and consequences of her disability.  You must have known that she functioned in ways akin to that of a child.

1. Given the manner in which the indictment particularised the charge, and the absence of any information about the circumstances of the offence, the applicant’s counsel submitted in the written case that it was not open to the judge to conclude that the applicant’s conduct was ‘predatory and opportunistic’, contending that inadvertence cannot be predatory or opportunistic.  The judge’s use of language indicates, so it was submitted, that he mischaracterised the offending as an act of commission rather than one of omission.

1. These submissions cannot be accepted.  Through his plea, the applicant admitted that he intentionally had penile-vaginal sex with the victim.  As a result of his nine year relationship with the victim’s mother, he was acquainted with BLS’s intellectual disability.  Hence, his decision to sexually penetrate her — not giving any thought to whether she was not or might not be consenting — was particularly serious.  His relationship with BLS through her mother, meant that the applicant found himself in a position to use the victim to sexually gratify himself, being fully aware of the fact that she was incapable of giving  any meaningful consent.  We regard that conduct as  predatory and opportunistic. 

1. Moreover, the suggestion that the applicant’s was a crime of omission cannot be accepted.  As we have said, the applicant intentionally sexually penetrated the victim by introducing his penis into her vagina.  That was an offence of commission, albeit that the applicant may not have given thought to whether BLS was not, or might not be, consenting.

1. Proposed ground 1 is devoid of merit.

Ground 2

1. We would also reject proposed ground 2, which asserts that the sentence is manifestly excessive.

1. The applicant’s counsel submitted 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 victim, or any additional violence or threats of violence; the ignoring of any protests by the victim; any ‘perverted’ or ‘depraved’ sexual activity; any video recording or photographs of the victim during sexual activity; or that the rape occurred over an extended period (the applicant’s conviction being for a single isolated act of indeterminate duration).

1. There were, however, a number of serious aggravating features.  As a result of her intellectual disability, BLS was extremely vulnerable to the applicant’s sexual predation.  Over the previous nine years, the applicant had, in effect, fulfilled the role of step-father in a relationship of trust and dependence.  But he breached her trust.  And that gross breach of trust resulted in the victim’s pregnancy, and the trauma of termination.

1. Quite apart from the aggravating features of the applicant’s offending, as the judge observed, the applicant has exhibited no remorse or insight into his offending, and has offered no explanation for it.  Moreover, although the plea of guilty mitigates the sentence to some extent, it was a late plea, entered after the victim had been required to give evidence at a special hearing.

1. The judge took into account the fact that the applicant possessed a limited criminal history of no significance; had not re-offended; had limited education; was subject to a childhood of abuse and disadvantage; experienced a range of gastro-intestinal complaints that will require treatment and medication in prison (making imprisonment more onerous); and had not previously been imprisoned.

1. As we have said, however, the applicant’s offending was perpetrated against an extremely vulnerable victim.  The applicant advanced no reason for his crime, but we consider that it can only have been for the purposes of his own selfish sexual gratification.  General and specific deterrence, denunciation and punishment were all important to the imposition of sentence. 

1. Leave to appeal could only be granted if we considered that it was reasonably arguable that the sentence imposed was wholly outside the range of those open in the sound exercise of the sentencing discretion.  Given, in particular, the extreme vulnerability of the victim; the deeply traumatic effect of the offending upon her (not limited to the fact that she was impregnated and had to undergo the trauma of termination); the applicant’s gross breach of trust; and the absence of remorse or other significant factors in mitigation (beyond the plea of guilty); we do not regard it to be reasonably arguable that the sentence imposed is manifestly excessive.

Conclusion

1. Leave to appeal against sentence is refused.

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