John Traeger (a pseudonym)[1] v The Queen
[2019] VSCA 231
•17 October 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2019 0007
| JOHN TRAEGER (A PSEUDONYM)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]To ensure that there is no possibility of identification of the victim, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.
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| JUDGES: | ASHLEY and WEINBERG JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 7 October 2019 |
| DATE OF JUDGMENT: | 17 October 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 231 |
| JUDGMENT APPEALED FROM: | DPP v Traeger (a pseudonym) [2017] VCC 1999 (Judge Gucciardo) |
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CRIMINAL LAW – Sentence – Indecent assault, two charges – Manifest excess – Total effective sentence of four years and nine months – Non-parole period of three years and two months - Contact by hand and mouth with outside of victim’s vagina - Assault of short duration – No significant degree of violence – Offender voluntarily desisted - Offender alcohol-affected - No physical injury – Psychological injury - Guilty plea of ‘high utilitarian value’ - Offender’s past conviction for rape – Risk of re-offending – Sentence of 54 months’ imprisonment on a single charge of indecent assault a statistical outlier – Leave to appeal granted – Appeal allowed – Applicant sentenced to total effective sentence of three years and six months’ imprisonment with non-parole period of two years and three months.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms F Todd | Nicholas WJ Rolfe & Associates |
| For the Respondent | Mr J C J McWilliams | Mr J Cain, Solicitor for Public Prosecutions |
ASHLEY JA
WEINBERG JA:
John Traeger (‘the applicant’) pleaded guilty in the County Court to two charges of indecent assault.[2] The offences were committed on 18 May 2012, but the applicant was not arrested until 11 May 2015. Initially he was charged with rape, but in the end the matter resolved with him pleading guilty to two charges of indecent assault. The prosecution having accepted that plea, the sentencing judge was required to sentence the applicant on the footing that his offending conduct, which we describe below, had not involved any penetration of the victim’s vagina.
[2]Contrary to s 39, Crimes Act 1958 (Vic). The maximum penalty for the offence is ten years’ imprisonment.
Self-evidently, serious as the offence of indecent assault frequently is, that offence is regarded by the legislature as significantly less grave than the offence of rape contrary to s 38 of the Crimes Act 1958, the maximum penalty for rape – 25 years’ imprisonment – being two and a half times greater than the maximum penalty for indecent assault.
There was a plea hearing on 7 December 2017 and on 20 December 2017 the applicant was sentenced to 12 months’ imprisonment on charge 1 and to 54 months’ imprisonment on charge 2. Three months of the sentence on charge 1 was cumulated, leading to a total effective sentence of four years and nine months’ imprisonment. The judge fixed a non-parole period of three years and two months’ imprisonment. On charge 2, the offender was sentenced as a serious sexual offender, because he had an earlier relevant conviction.
The applicant sought leave to appeal on 25 February 2019 — that is, long out of time. His application focused only upon the sentence imposed on charge 2. His single proposed ground of appeal was that the sentence on that charge was manifestly excessive.
An extension of time to apply for leave to appeal having previously been granted, the matter comes to this Court.
In our opinion, for the reasons which follow, leave to appeal should be granted and the appeal should be allowed. In lieu of the sentence imposed on charge 2, we will impose a sentence of three years and three months’ imprisonment. We will cumulate three months of the sentence imposed on charge 1 on the sentence on charge 2, this yielding a total effective sentence of three years and six months’ imprisonment. We will fix a non-parole period of two years and three months’ imprisonment, and make an appropriate declaration as to time served. We will confirm the other orders made by the sentencing judge.
Circumstances
In his sentencing remarks, the judge described the offending, committed by the applicant when he was aged 29,[3] this way:
On 18 May 2012 the victim in this matter, whom I shall refer to as ‘X’, was at home with her husband and five children. At approximately 8 pm four of her children went to bed. Her husband followed later, at approximately 10.30 pm. ‘X’ and her youngest daughter remained awake watching a movie. At approximately midnight you arrived and knocked on the front door. She turned on the outside light and answered the door. She did not recognise you. You asked her if her husband was home and she replied that he was, but was sleeping. She then went to check on her husband in the bedroom to make sure that this was still the case, and when she returned you were speaking to her daughter. She heard you ask he whether Mummy or Daddy could come out to speak. ‘X’ told you that her husband was still asleep and that you should come back the next day, however you did not leave. You asked her whether she could come outside to speak with you and she complied. You continued speaking, but ‘X’ could not understand precisely what you were saying and she could smell alcohol on your breath. You then grabbed her arm and tried to pull her towards you, but she pulled back and broke your grip. She moved back towards the house; the front wall to her back. You then moved towards her and placed your hand on her breast briefly. You then lifted her pyjama top with one hand whilst, at the same time, slid your other hand down the front of her pyjama pants and into her underwear. You then slid your hand down the front of her vagina. That was Charge 1.
‘X’ squeezed her legs together, forcing you to remove your hand from her pants. You then dropped to your knees and used both of your hands to pull her pyjama pants all the way down to her ankles. You then used both arms to hold her in place as you licked her vagina. That is Charge 2.
‘X’ tried to pull away but you held her forcefully in place. After some time you ceased the assault and rose to your feet to smoke a cigarette. You said to her that her husband had set this up. She did not respond and she remained there, standing against the wall, with her pants at her ankles. You then asked whether she could leave with you. She, again, did not respond, and eventually you left. [4]
[3]The applicant was born on 24 August 1982. He was aged 35 at time of sentence and is now aged 37.
[4]DPP v Traeger (a pseudonym) [2017] VCC 1999, [4]-[6] (‘Sentencing Remarks’).
The subsequent course of events
The complainant reported the matter to the police very soon after the attack. She was medically examined. Nothing came of her report to the police. Nearly three years later, the applicant came to her home. She and the applicant had some conversation. It made her feel uncomfortable, but otherwise nothing untoward occurred. The applicant left. The complainant, searching her memory, realised that the applicant was the person who had assaulted her years before. Again, she made a report to the police.
The applicant was arrested and interviewed on 11 April 2015. He agreed that he knew both the complainant and her husband, having worked with the husband. He agreed that he had been to the home of the complainant and her husband on possibly three occasions. He denied that any sexual misconduct had taken place involving the complainant.
As we have earlier noted, the applicant was initially charged with two counts of rape. The matter took a long time to go forward, being in the committal and trial stream. It was only after the applicant had been committed on the charges of rape that discussion between the parties, and consultation between the prosecutor and the complainant, led to the charges of indecent assault being substituted for the rape charges, and to the applicant pleading guilty to the new charges.
In the unusual circumstances which obtained, it was conceded by the prosecutor on the plea that the guilty pleas should be regarded as having been made early. The prosecutor stated that:
Most importantly Your Honour, the complainant and her daughter have been spared the ordeal of cross-examination on a trial. So it’s conceded that it is a significant plea and must be regarded as a high-value plea.
Sentencing remarks
The judge described the circumstances of the offending, the applicant’s arrest, the record of interview and the course of events which led up to the guilty pleas. His Honour then addressed these matters:
(1)The complainant’s victim impact statement, in which, his Honour said, the complainant had endeavoured to express the feelings of trauma and the impact which the applicant’s conduct had caused her.
(2)The maximum penalty for each offence being ten years’ imprisonment, this indicating the seriousness of the offending. The judge said:
Charge 2, in particular, which involves the licking of the victim’s vagina, is in circumstances of an oppressive and most intimate interference with ‘X’s’ bodily integrity, accompanied by deep embarrassment and fear. The nature of the offending is objectively serious — well beyond acts of mere frottage, but clearly in the middle range of offending — and particularly Charge 2 lies in the high reaches of that range, in my view. Despite your apparent intoxication your moral culpability in this abhorrent behaviour is high. It is of concern that even after the significant passage of time you then showed up at her house to speak to her in a suggestive and inappropriate fashion.[5]
[5]Sentencing Remarks [12].
(3)The applicant’s plea of guilty. Although it would attract a discount as ‘represent[ing] a high utilitarian value’, the judge had ‘no real confidence that [the applicant was] remorseful’.[6]
[6]Sentencing Remarks [14].
(4)The applicant’s prior criminal history, beginning when he was aged 18. It involved driving and dishonesty offences, and an armed robbery dealt with by the County Court in December 2002. Then, in 2008, the applicant was sentenced to four and a half years’ imprisonment with a two year non-parole period for rape. He was released in 2010, and committed the instant offences in May 2012. In the meantime, he had returned to court for more driving matters. The judge said this about the applicant’s prior criminal history:
I recite this extensive record to indicate not only the high relevance of the rape prior, but your clear recidivism in relation to the court’s sanctions — each of which, up until the rape sentence, have given you opportunities for rehabilitation and a change of behaviour. This history emphasises, in my view, the need for specific deterrence in your case.[7]
[7]Sentencing Remarks [16].
(5) The earlier conviction and sentence for rape. The judge said:
[The 2008] sentence reveals certain peculiar and particular similarities to this current offending. You went to the victim’s home on that occasion, late at night, like in this case. The victim was married and knew you. You knocked on the door, as you did here, and with the pretence of being in some trouble, you entered the house. In this case you effectively lured the victim outside her front door. In the rape case the victim through she was helping you out, as ‘X’ here thought she was dealing with your enquiry. You had been drinking and went there for the purpose — for the rape — of having sexual intercourse for your own sexual gratification. Her Honour noted your decision to choose her was on the basis that you had heard she was promiscuous. You then grabbed the victim, pulled off her pyjamas and had non-consensual sex with her. The evening before that night’s event you had celebrated your de facto giving birth to your child that very day. In her sentence Her Honour noted that you were 25 and living with your parents. You began to drink alcohol aged 12 and became a binge drinker. She noted you found school difficult, but that you completed Year 11. She recited the contents of a psychologist’s report and your work history, as well as your continuing heavy drinking with friends from work and the football club you frequented. She found circumstances of the rape committed in the victim’s home in the early hours of the morning a matter of aggravation, as I do here in this case. She noted you inveigled your way inside her home and you clearly had no insight into the consequences of irresponsible ingestion of drugs and alcohol. At paragraph 36 of her sentence she said:
‘Unless you no longer drink alcohol, and only drink responsibly, and no longer take drugs of dependence, your chances of rehabilitation are low’.
She thought that because of your age, supportive family and partner, that your prospects of rehabilitation then were reasonable. It is clear that the hope which the judge expressed in dealing with you in 2008 has been unrealised by you. I mention this prior because it is clearly relevant in the assessment of your prospects of rehabilitation, and because, in my view, it involves and enliven specific deterrence as a significant sentencing purpose.[8]
[8]Sentencing Remarks [17].
(6)Delay. The judge concluded that there had been effectively no delay due to anyone’s lack of diligence which had disadvantaged the applicant. Indeed, during the period of delay, the applicant had the opportunity to demonstrate some insight and changed behaviour, but did neither.
(7)‘The centrality of the [applicant’s] alcohol and drug problem’. The judge noted that it had been acknowledged during the plea and then said:
You know that you do bad things when you are drunk and drug affected. The moral culpability of someone in this situation in my view is high. Your attempts at abstinence were short-lived and unsuccessful. You still smoke cannabis and drink. [9]
[9]Sentencing Remarks [19].
and:
It is clear that even to the jeopardy of your own family a supportive father — some people’s hope for others is truly remarkable — and over the presence of two young children have not deterred you. These facts were present largely at the time of this offending. [10]
(8)An assessment made by Mr Jeffrey Cummins, psychologist, dated 5 December 2017. Using two measures, Mr Cummins had assessed the applicant’s risk of re-offending as being moderate to high. The judge commented that this made participation in an offence-specific treatment program imperative.
(9)The applicant’s submission that a community correction order would be an appropriate disposition. The judge rejected that submission, noting that every community disposition in the applicant’s case, from community-based orders to community correction orders to intensive correction orders had failed because the applicant contravened those orders. In any event, the judge concluded, a community correction order, even linked with a period of imprisonment, would not be sufficient to properly dispose of the matter.
[10]Sentencing Remarks [20].
The judge stated that specific and general deterrence occupied the ‘primary position’ in the disposition. Denunciation and imposing just punishment should recognise that the offending was serious. The objective gravity of charge 2 was ‘high in the middle range of offending’.[11] The offending the subject of charge 1 was ‘at the lower end of an indecent assault’.[12]
[11]Sentencing Remarks [27].
[12]Sentencing Remarks [27].
Finally, the judge noted that the applicant fell to be sentenced on charge 2 as a serious sexual offender, this meaning that the protection of the community became a primary consideration. His Honour stated, however, that he would not deal with the applicant ‘in a disproportionate fashion’; nor had such a sentence been sought by the prosecutor. Determining that he would make an order under the Sex Offenders Registration Act 2004 that the applicant be registered as a sex offender for life, the judge said, ‘I am satisfied beyond reasonable doubt that you are a danger to the sexual safety of members of the community, given this matter and your prior [rape]’.[13]
[13]Sentencing Remarks [27].
Applicant’s submissions
By written submissions, the applicant:
(a) accepted that the judge had appropriately summarised the offending conduct, had identified important sentencing considerations in respect of the applicant — specific deterrence, general deterrence and protection of the community amongst them — and had appropriately referred to the applicant’s relevant prior history of offending, including the conviction and sentence for rape. His Honour had rightly found that the applicant was a medium to high risk of re-offending, that the offending in respect of charge 2 lay within the ‘high reaches’ of the middle range of such offending and that the applicant’s moral culpability was high. His Honour had also recognised, running in the applicant’s favour, the high utilitarian value of the guilty pleas; and
(b) argued that, notwithstanding the judge’s correct analysis, a sentence of four and a half years’ imprisonment for a single count of indecent assault was ‘well outside, and above, the applicable range for this offending’. It was rare for a sentence to be imposed on a count of indecent assault in the higher courts in the absence of other associated offending, for which reason relevant comparative cases were difficult to find. That said, Sentencing Snapshot No 208[14] revealed that, of 111 people sentenced for the offence between 2011/12 and 2015/16, in only one case had a sentence of between four and five years’ imprisonment been imposed. Further, in cases where the Court of Appeal had occasion to consider sentences imposed for indecent assault where it was the principal offence, the highest sentence imposed since 2006 had been one of three years’ imprisonment.[15]
[14]Sentencing Advisory Council, Sentencing Snapshot: Sentencing trends in the higher courts of Victoria 2011-12 to 2015-16 – Indecent Assault (No 208, May 2017).
[15]Citing Judicial College of Victoria, Victorian Sentencing Manual [31.11.2.1].
Orally, applicant’s counsel submitted that the sentence of 54 months’ imprisonment on charge 2 was outside the range having regard to four matters. First, the plea of guilty with its high utilitarian value. Second, that statistically, and having regard to matters considered by this Court, the sentence was an outlier, this warranting close attention. Third, the circumstances of the offending: there was no evidence that the offending was premeditated, the applicant acted alone, the incident was of relatively brief duration, there were no threats or coercion, the victim suffered no physical injury, and the applicant desisted when the victim would not accompany him. Fourth, the applicant had the continuing support of his wife, children and parents.
Respondent’s submissions
In response to the written submissions for the applicant, it was submitted for the Crown in writing -that the applicant relied solely upon current sentencing practices to further the complaint of manifest excess. Exception was taken to what was to be gleaned from the Sentencing Snapshot referred to by counsel for the applicant. But it was conceded that the applicant was correct in saying that, according to that statistical record, only one offender had been sentenced to between four and five years’ imprisonment in the four-year period. Nonetheless, the respondent submitted, the statistics were of little value because nothing was known as to the seriousness of the offending or other matters relevant as sentencing considerations. What the statistics did reveal was that a sentence of four and a half years’ imprisonment for a single charge of indecent assault was not outside the range for this offending.
The Crown’s written submissions also challenged the utility of a table published by the Judicial College of Victoria showing dispositions for the offence of indecent assault in the Court of Appeal since 2006, referred to by the applicant.[16] It was submitted that the two cases footnoted by the applicant as attracting a two-year sentence[17] for indecent assault were not comparable cases and should be disregarded. It is not easy to understand the point which the Crown was attempting to make in this submission, because, on the face of it, the circumstances of the offending in those cases was very serious indeed. The applicant’s point, evidently, was that even more egregious offending had attracted lesser sentences.
[16]Judicial College of Victoria, Victorian Sentencing Manual [31.11.2.1].
[17]Williams v The Queen [2013] VSCA 120 and Hudson (a pseudonym) v The Queen [2017] VSCA 122.
Further, according to the respondent’s written submissions, the only case cited by the applicant which was of any relevance was Martin v The Queen.[18] There, a plea of guilty had attracted a sentence of three years’ imprisonment. According to the submission, Martin was factually similar, but lacked some of the aggravating features of the present matter.
[18][2007] VSCA 207.
The respondent’s written submissions finally emphasised that current sentencing practices are but one factor to be taken into account in the instinctive synthesis, but not the ‘controlling factor’;[19] and contended that the judge had accurately identified the whole range of circumstances relevant to sentence in the present case.
[19]Citing Director of Public Prosecutions v Dalgliesh (a pseudonym) (2017) 262 CLR 428.
In oral submissions, counsel for the respondent emphasised that, with respect to charge 2, upon which the applicant was sentenced as a serious sexual offender, he should be regarded as a ‘genuine’ repeat offender. That is, the situation was not one in which a number of sexual offences had been committed in the one incident. So, counsel submitted, the risk to the community was not merely potential, and the sentencing purpose of community protection was emphasised.
Counsel further drew attention to the moderate to high risk of the applicant reoffending identified by Mr Cummins in his report as bearing upon the sentencing purposes of specific deterrence, general deterrence and protection of the community; and drew attention to the fact that the applicant had not taken the rehabilitation opportunities which had been given him in the past.
Counsel submitted, as we understand it, that the sentence on charge 2 might be regarded as a high one, but not one outside the range.
Analysis
This offending was both disturbing and very strange. It does appear that the applicant knew the complainant’s husband. It may be, as the applicant told Mr Cummins, that he went to the premises to buy drugs from the husband. It seems that he was not acquainted with the complainant. Unlike the circumstances in which he was convicted and sentenced for rape, there is nothing to show that he went to the complainant’s home looking to engage in a sexual encounter. Insofar as counsel for the Crown orally submitted to the contrary, that submission must be rejected. Rather, it appears that, when told that the husband was in bed and asleep, the applicant acted opportunistically to assault the complainant for a short time. Then, having assaulted the complainant, the applicant stood up and began to smoke a cigarette. He said that the husband had set it all up, but then asked the complainant if she would leave with him. When, unsurprisingly, she would not do so, he left. The incident was bizarre, and the only explanation for it was that the applicant was then alcohol and perhaps drug-affected. None of this is to say that the offending was not serious, or to gainsay that, as the judge said, the applicant had a long history of offending whilst alcohol or drug-affected, and had learnt nothing from it. Nor is it to downplay the significance of the fact that this was repeat sexual offending. Nor again is it to gainsay the effect of the offending upon the complainant.
The prior conviction for rape also involved a strange set of circumstances. The applicant’s partner had given birth a day earlier. The applicant had then engaged in prolonged drinking with friends. In the early hours of the morning after the birth of his child, he had gone to the victim’s home. He knew both the victim and her husband. He went to the home for the purpose of having sexual intercourse, as the sentencing judge in that matter noted.[20] The applicant was recognised by the victim. After some conversation, she noticed that he had an erection. The applicant told her that another woman had caused him to be aroused and ‘could she help [him] out’.[21] The victim having unsurprisingly refused and told the applicant to go home, he forced himself upon her and pushed his penis into her vagina. The victim hit him and he stopped. He told her not to tell anyone, and then left. He told police that he knew her and had been told, to use his words, that she was ‘the town bike’. Again, it is crystal clear that alcohol was involved in that offending.
[20]R v John Traeger [2008] VCC 1041, [5] (‘2008 Sentencing Remarks’).
[21]2008 Sentencing Remarks [7].
In the present case, the judge was faced with a considerable sentencing problem. He was not to sentence the applicant for the 2008 rape; but in some respects the circumstances of that offending and the instant offending bore similarities. The two offences and much of the other offending engaged in by the applicant particularly emphasised the significance of the disinhibiting effect of alcohol and illicit drugs upon the applicant’s behaviour; and the applicant’s unwillingness or inability to refrain from alcohol and drug abuse. Evidently, the instant offending involved high moral culpability. Drug and/or alcohol abuse explained the instant offending, but did not excuse it. The judge, having regard to the applicant’s long-term inability to address the problem of alcohol and drug abuse, was well entitled to conclude that the applicant’s prospects of rehabilitation were not good — at least in the absence of specific treatment. Moreover, his Honour was confronted with an applicant whose risk of relevant re-offending had been assessed as between moderate and high. It is inescapable that considerations of specific deterrence and protection of the community loomed large in the sentencing synthesis.
For all that, there were some matters telling in mitigation of sentence, and there is no doubt that the sentence which the judge imposed on charge 2 was a significant outlier, greatly out of kilter with sentences typically imposed for this offence.
As to matters going in mitigation, there were the pleas of guilty, with their high utilitarian value. In the particular circumstances, they approximated an early plea. Then, as to the circumstances of offending, applicant’s counsel was correct to emphasise the absence of evidence of premeditation, that the incident was of brief duration, that there were no threats, coercion or significant degree of violence, that no physical injury was inflicted, and that the applicant desisted when the victim refused to accompany him. Another matter of some relevance was the continuing support given the applicant by his wife, children and parents.
As to the sentence imposed being an outlier, notwithstanding the limited utility of sentencing statistics the Sentencing Snapshot to which the judge was referred[22] showed that in the period 2011/12 to 2015/16, 111 people were sentenced in the higher courts for a principal offence of indecent assault. Of those 111 individuals, 37 received a principal sentence of imprisonment.[23] Of 36 people sentenced either to imprisonment or to imprisonment with a community correction order, 28 were sentenced to less than two years’ imprisonment, and another four to less than three years’ imprisonment. Only one was sentenced to between four and five years’ imprisonment. The median length of imprisonment was one year and two months’ imprisonment. The average length of imprisonment varied over the years between eight months and a year and eight months.
[22]Sentencing Advisory Council, Sentencing Snapshot: Sentencing trends in the higher courts of Victoria 2011-12 to 2015-16 – Indecent Assault (No 208, May 2017).
[23]Either imprisonment, imprisonment with a community correction order, or aggregate imprisonment.
Again, dispositions in this Court where indecent assault was either the principal or, more frequently, a secondary offence, in the period between 2006 and 2019, revealed only one sentence exceeding two years.[24] That was the sentence of three years in the matter of Martin.[25]
[24]Judicial College of Victoria, Victorian Sentencing Manual [31.11.2.1].
[25][2007] VSCA 207.
It is trite but true that every sentence reflects the myriad individual circumstances of the particular case; and there were indeed idiosyncratic features of the offending for which the applicant was to be punished. It is also trite but true that current sentencing practices are but one matter to be brought to account in the sentencing synthesis. But notwithstanding all that could be said in support of the sentence on charge 2, having regard to the entire circumstances of the offending, the offender and the victim, we are persuaded that a sentence of 54 months’ imprisonment on this charge was quite outside the range of sentences available in the sound exercise of the sentencing discretion. For that reason we will make the orders foreshadowed at [6] above.
We state, for the purposes of s 6AAA of the Sentencing Act 1991, that had the applicant gone to trial and been convicted, we would have imposed a total effective sentence of five years and six months’ imprisonment, and would have fixed a non-parole period of four years’ imprisonment.
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