Johns (a Pseudonym) v The Queen
[2016] VSCA 97
•10 May 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2015 0141
| SAM JOHNS (A PSEUDONYM)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the applicant’s name.
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| JUDGES | WEINBERG AP, ASHLEY and FERGUSON JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 11 April 2016 |
| DATE OF JUDGMENT | 10 May 2016 |
| MEDIUM NEUTRAL CITATION | [2016] VSCA 97 |
| JUDGMENT APPEALED FROM | DPP v Johns (Unreported, County Court of Victoria, Judge Montgomery, 19 June 2015) |
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CRIMINAL LAW – Sentence – Six charges of rape – Intentionally Cause Injury – Offending over sustained period - Victim was wife – Impact of delay –Anomalies in individual sentences imposed – Anomalies affecting total effective sentence – Sentence manifestly excessive - Leave to appeal granted and appeal allowed – Appellant re-sentenced.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr D A Dann QC with Mr G F Connelly | Ann Valos Criminal Law |
| For the Crown | Mr C B Boyce SC | Mr J Cain, Solicitor for Public Prosecutions |
WEINBERG AP:
I agree, for the reasons given by Ferguson JA, that leave to appeal should be granted, the appeal allowed, and the appellant resentenced as her Honour has proposed.
ASHLEY JA:
I agree in the reasons of Ferguson JA and with the orders which her Honour proposes.
FERGUSON JA:
Overview
On 16 June 2015 the applicant was convicted of six charges of rape and one charge of intentionally causing injury to his wife. The offences were committed between May 2001 and January 2011. The last three offences of rape were committed at a time when the applicant and the victim were separated.
The applicant was sentenced on 19 June 2015 as follows:
Charge on Indictment Offence Maximum Sentence Cumulation 1 Rape [Crimes Act 1958, s38(1)] 25 years imprisonment 8 years imprisonment 1 year 2 Intentionally cause injury [Crimes Act 1958, s18] 10 years imprisonment 2 years imprisonment Nil 3 Rape [Crimes Act 1958, s38(1)] 25 years imprisonment 6 years imprisonment 6 months 4 Rape [Crimes Act 1958, s38(1)] 25 years imprisonment 6 years imprisonment 6 months 5 Rape [Crimes Act 1958, s38(1)] 25 years imprisonment 6 years imprisonment 6 months 6 Rape [Crimes Act 1958, s38(1)] 25 years imprisonment 6 years imprisonment 6 months 7 Rape [Crimes Act 1958, s38(1)] 25 years imprisonment 10 years imprisonment Base
Total Effective Sentence: 13 years imprisonment Non-Parole Period: 10 years Pre-sentence Detention Declared: 3 days Other orders:
Forfeiture order (charge 7)
- Sentenced as a serious sexual offender (charges 4, 5, 6 and 7)
- Forensic procedure
The applicant seeks leave to appeal against sentence on the ground that the individual sentences, the total effective sentence and the non-parole period are manifestly excessive. The applicant draws attention to what he contends are serious anomalies in the sentences imposed on charges 1, 2 and 7, to the impact of the sentences on charges 1 and 7 on the total effective sentence, and to delay. He points to the four and a half years between the complaint to the police and the date of sentence, and to his evidence of his rehabilitation in that period.
How were the offences committed?
Sometime around May 2001, when the applicant and his wife were living together with their first child in Essendon, the applicant was working as a security guard at Coles in Dandenong. The applicant became angry because his wife did not have the correctly coloured socks ready for him to wear with his work uniform. His wife laughed because she did not think that her husband was serious. The applicant took his wife by the back of the head to the laundry, pushed her head into the pile of dirty laundry in the washing basket and told her it was her job to take care of the laundry. He then pushed her against the wall, took her pants off and anally raped her until he ejaculated despite his wife screaming at the applicant to ‘stop’ and ‘get off’ and that ‘it hurts’ (charge 1 — rape). It was more painful for the victim than vaginal penetration and she testified that the after effects made it feel disgusting. She also gave evidence that she did not know that the applicant was going to do what he did and she did not know that it was possible.
In January 2004, when the applicant’s wife was pregnant with his third child, he grabbed her by the hair and pushed her head into the carpet with one hand on her hair and the other on her neck. This caused carpet burns to her face and marks around her neck (charge 2 — intentionally cause injury). The applicant then vaginally raped her and she screamed out in fear (charge 3 — rape).
In May 2004, during the same pregnancy relating to charges 2 and 3, the applicant vaginally raped his wife after she refused to have sex with him and closed her legs and pushed him away. The applicant pulled at his wife’s leg roughly and ripped her labia in the process of raping her (charge 4 — rape). The judge accepted that this led to the complainant suffering vaginal bleeding and attending the Frankston Hospital for treatment.[2]
[2]Sentencing Remarks, DPP v Johns (a pseudonym) (Unreported, County Court of Victoria, Judge Montgomery, 19 June 2015) (‘Reasons’) [3].
The applicant and his wife separated in 2010. The complainant agreed to go on a holiday in April 2010 with her husband and their children so that he could spend time with the children. During the holiday at Lakes Entrance, the applicant vaginally raped the complainant in the main bedroom of the holiday unit. The rape took place when she was getting out of the shower one night and the applicant appeared in the doorway and took her by the hand into the main bedroom. She did not consent as the applicant got on top of her and vaginally penetrated her (charge 5 — rape).
The complainant took her children to the applicant’s home so that they could spend Christmas 2010 with him. A tent was erected in the backyard of his home for the complainant to sleep in. At some stage late on Christmas eve or early Christmas day, the applicant entered the tent and vaginally raped the complainant. Despite her biting, punching, kicking at and telling the applicant to ‘get out’, he placed his body weight on her to counter her resistance, took off her pyjamas and raped her (charge 6 — rape).
On New Year’s Day of 2011, while the complainant was setting up bunk beds at for their children at the applicant’s house, the applicant came up behind her and handcuffed one of her wrists. Holding the other handcuff, he pushed her into another room and onto a futon and attached the other end of the handcuffs to the futon frame, pulled her pants off and anally raped her (charge 7 — rape). Although the applicant was not able to ejaculate on this occasion, he left his estranged wife handcuffed to the futon for a further 45 minutes until she said she had calmed down.
Sentencing Remarks
The judge took into account that the applicant had no prior criminal history and that outside his marriage to the complainant, it seemed that his character was regarded by others as impeccable.[3] The judge stated that he took the applicant’s background into account.[4] From the submissions made on the plea hearing, it seems that the applicant was between 25 and 35 at the time he committed the offences. He and the complainant have four children. They divorced in 2012. The applicant remarried in February 2013 and has a child from that marriage. His current wife gave a character reference for him.
[3]Reasons [5], [6], [10]-[11].
[4]Ibid [9].
The judge noted that the applicant was a member of the Latter Day Saints Christian church, but recorded his doubt that the applicant’s offending was within the principles of that religion.[5] So far as delay was concerned, the judge said this:
It is put that there has been an issue of delay and certainly there has been a year or two since you were charged. Of course during the period of some ten years prior to being charged, on the evidence in the case, it can hardly be said that any delay in charging you resulted in efforts at rehabilitation if one looks at the evidence of [the complainant].[6]
[5]Ibid [6].
[6]Ibid [7].
The judge said that he took into account the victim’s impact statement which was read aloud in Court.[7] It is clear from that statement that the complainant has and continues to suffer very significantly as a result of what the applicant did to her.
[7]Ibid.
The judge stated that he also took into account specific and general deterrence,[8] totality and proportionality,[9] the need for denunciation[10] and that the applicant had shown no remorse.[11]
[8]Ibid [10].
[9]Ibid [10], [11].
[10]Ibid.
[11]Ibid [10].
Manifest excess
On an appeal of this kind, it is not for this Court to impose the sentence that it thinks appropriate.[12] Rather, the Court’s task is to consider whether the sentence falls within or outside the range of sentence which could have been imposed if proper principles had been applied.[13] That task must be carried out having regard to the particular offender, the offence committed and circumstances of the offending in the case under consideration.[14] The question is, were the sentences imposed on the applicant for rape and intentionally causing injury not reasonably open in the circumstances of this case?[15]
[12]R v Abbott (2007) 170 A Crim R 306 (‘Abbott’), 310 [15].
[13]Barbaro v R (2014) 253 CLR 58, 70 [26].
[14]Abbott 309 [14].
[15]R v Clarkson (2011) 32 VR 361, 384 [89].
The applicant acknowledges that his offending was extremely serious, stretching over a 10 year period and involving a husband inflicting his domination over his wife. He also recognised that he was not entitled to sentencing benefits associated with a plea of guilty. Nevertheless, he submitted that there were a number of matters in mitigation. He had no prior nor subsequent convictions. There was evidence of his good character with there being no evidence that he presented as a danger to the wider community. In particular, the applicant relied upon delay which he submitted was a factor to which the judge gave insufficient weight. In this regard, the complainant first contacted the police in January 2011. She began making her first statement on 20 June 2011 and signed it on 11 July 2011. That statement contained the allegations supporting charges 2 and 3. The applicant was arrested and interviewed on 17 August 2011. On 24 April 2012, the complainant sent photographs of her injuries to the police which led to her making a second statement on 30 October 2012. Charges were laid on 28 June 2013. The trial took place in June 2015 and the applicant was sentenced on 19 June 2015. It is not clear what caused the delay although at least for some of the relevant time, the applicant seems to have been overseas.
Delay is a relevant factor to be taken into account when sentencing. Where there has been delay (which has not been caused by the accused’s conduct), fairness dictates that the Court look at what effect that delay has had on the accused with the principal focus being upon rehabilitation of the accused and the strain and uncertainty which has been placed upon the accused due to the delay.[16]
[16]R v Cockerell (2001) 126 A Crim R 444, 447 [10]–[11]; R v Merrett (2007) 14 VR 392, 400 [35]–[36].
On the plea hearing, counsel for the applicant urged the judge to look at the applicant’s behaviour after January 2011. He submitted that in that time, the applicant had met his new wife, who holds an important position in the ministry of foreign affairs and immigration in the Republic of Kiribati. The applicant had assisted his current wife in that position. In addition, counsel pointed to the character references that had been given in respect of the applicant and the applicant’s involvement in the Church of the Latter Day Saints. In summation, counsel contended that since January 2011, the applicant had engaged in activity that could be seen as rehabilitation of his lifestyle.
The applicant submitted that in his case, delay was a powerful mitigating factor despite the fact that he had not pleaded guilty to the charges. He had not reoffended since the last offence was committed in January 2011. Rather, he had changed his life. He had formed a new relationship, had a child and the character references demonstrated that he acted as a devoted family man within his new family. This was in contrast to how he behaved during the time when he committed the offences.
The respondent acknowledged that there had been delay both in charging the applicant and bringing the matter to trial. However, the respondent submitted that there was no evidence of the applicant’s rehabilitation beyond re-partnering and not reoffending.
The applicant submitted that whilst each individual sentence was manifestly excessive, charges 1, 2 and 7 warranted particular attention. It will be recalled that charge 1 was in respect of the rape that followed the selection of socks by the complainant for the applicant to wear to work. The applicant observed that the 8 year sentence for this offence was more than the 5 year median sentence for rape as described in the Sentencing Snapshot for the period between 2009 and 2014.[17] Current sentencing practice is a relevant matter to be taken into account.[18] However, statistical information, including information about the median sentence for an offence, does not determine whether the sentence imposed in a particular case is or is not manifestly excessive. The statistics do not expose what aggravating and mitigating factors contributed to the individual sentences that feed into the composite statistical figures. Comparable cases may help to identify and apply the relevant sentencing principles and they may reveal sentencing patterns and a range of sentences that might be used as a yardstick.[19] But they do not set the limits within which a sentence must be imposed.
[17]The latest Sentencing Snapshot records the median sentence for rape for the period July 2010 to June 2015 as 6 years.
[18]Sentencing Act 1991 s 5(2)(b).
[19]R v Hili (2010) 242 CLR 520 (‘Hili’) 535 [49], 537, 538 [54], [57]; R v Pham (2015) 325 ALR 400, 405 [26] (French CJ, Keane and Nettle JJ), 410 [47] (Bell and Gageler JJ).
The applicant acknowledged that any instance of rape involves very serious offending but submitted that a number of aggravating features where a sentence of 8 years or more had been imposed were absent in this case. He had no prior convictions; was not subject to an intervention order; was not to be sentenced as a serious sexual offender on this charge; did not use a weapon; the rape was not accompanied by extreme violence; it did not involve significant degradation (in a comparative sense); it was not preceded by a home invasion nor an abduction; it was not committed in the company of others; the rape was not of particularly long duration; it was not a representative charge. The marital relationship continued for some years following the commission of the offence, although the applicant’s counsel recognised that the victim had given evidence that she did not understand at the time that it was an offence whilst they were married for the applicant to have raped her. In support of these submissions, the applicant referred to a number of cases in this Court where the offences involved rape in a domestic relationship. Naturally, each of those cases concerned particular circumstances with various aggravating and mitigating factors none of which replicate the circumstances in the present case. Nevertheless, they do indicate that sentences of 5 to 6 years have been imposed where there are few (if any) aggravating features and where some mitigating factors have been taken into account. Where aggravating features are prevalent, the sentences have tended to be more towards terms of 8 to 10 years.
Counsel for the applicant compared the sentence of 8 years on charge 1 to the 6 year sentences imposed in respect of charges 3 to 6 noting that the complainant suffered an injury as a result of the rape involved in charge 4.
In relation to the charge of intentionally causing injury,[20] the applicant submitted that the carpet burns sustained were relatively minor. At the time, he had no prior convictions for violence and he did not use a weapon. Given its close connection with the rape charge,[21] there was a need to avoid double punishment with respect to the injury sentence.
[20]Charge 2.
[21]Charge 3.
Finally, in respect of the last rape,[22] the applicant observed that the 10 year sentence would fall within the top one percent of sentences imposed for a charge of rape between 2009 and 2014. Whilst acknowledging that this rape called for a substantial sentence of imprisonment and that it did involve the use of a handcuff, he again submitted that a number of aggravating features of sentences at the extreme end of the statistical range were not present. He had no convictions; was not subject to any type of sentencing order when he committed this offence; there was no suggestion that the rape resulted in significant physical injury.
[22]Charge 7.
In conclusion, the applicant submitted that the imposition of a total effective sentence and non-parole period that were each manifestly excessive had its roots in the passing of a series of individual sentences which were in themselves manifestly excessive.
The plea hearing was conducted on a Friday morning. At the conclusion of the hearing, the court adjourned. At 12.30pm the same day, the judge sentenced the applicant and gave his reasons. The reasons were brief. The reasons do not tell the applicant, the victim or this Court, why sentences of different length were imposed for the rapes committed. Absent such reasoning, the sentences are outside the sentencing options which were reasonably available to the court. Perhaps the best example is that the judge gave no reason as to why he imposed an 8 year sentence for the first rape yet imposed a lesser sentence of 6 years for each of the rapes which were the subject of charges 3, 4, 5 and 6. This is particularly so when one has regard to the fact that in respect of the last three of those charges, the applicant was to be sentenced as a serious sexual offender such that a longer sentence might be imposed than would otherwise be the case.[23] On charge 7 for rape, the judge imposed a sentence of 10 years. There is no articulated reason why that sentence is so high. The description of the offences themselves does not make the difference in sentences obvious. Whilst the use of handcuffs in respect of the last charge may be a basis for the imposition of a higher sentence, it does not explain an increase of four years on the sentences imposed for the preceding charges when the judge has offered no reason for the extent of the increase in sentence. Similarly, it may be that the judge formed the view that, in the circumstances of this case, the two instances of rape by anal penetration warranted higher sentences, but it is not apparent from his reasons that that is so. Although the Court does not distinguish between different types of penetration,[24] it may be that in a specific case some of the circumstances in respect of the complainant might lead to a particular type of rape being regarded as an aggravating circumstance. As noted in [8] above, the complainant here did give evidence which may go some way towards a finding of aggravation in respect of the first charge. In her victim impact statement, she said about the last rape (which was by anal penetration):
As a direct result of being anally raped in 2011, I felt dirty, disgusting and subhuman. I certainly did not feel like a mother who could hug her children with any joy.
[23]Sentencing Act s 6D – where a serious offender is to be sentenced, protection of the community becomes the principal sentencing purpose. In order to achieve that purpose, a longer sentence may be imposed than would ordinarily be the case.
[24]Yaser El-Waly v R [2012] VSCA 184 [61]-[63].
So, it is possible that the judge here did treat rape by anal penetration as an aggravating circumstance in respect of the complainant. But he did not say so. Moreover, if he was going to regard this type of circumstance as aggravating, he had to be satisfied on the basis of the criminal standard of proof.[25] Based on the material before this Court, that standard was not met.
[25]R v Storey [1998] 1 VR 359, 369; R v Olbrich (1999) 199 CLR 270, 281 [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ).
On any view, the sentence of 2 years for intentionally causing injury (being the carpet burns and marks around the victim’s neck) is outside the range of reasonably available sentences. That remains the position even in the circumstances of this case where the judge did not cumulate any part of that sentence in arriving at a total effective sentence of 13 years imprisonment.
There also appears to be some inconsistency in the periods of cumulation which the judge imposed. There was cumulation of one year in respect of the first charge, yet only six months in respect of each of charges 4, 5 and 6 for which (as mentioned previously) he was to be sentenced as a serious sexual offender.
I would add that this is not a case where although the discretion in relation to the individual sentences miscarried, the total effective sentence is within range. If that had been the case, then the application for leave to appeal may have been refused.[26] Indeed this was the respondent’s primary contention on the hearing of the application for leave. The respondent submitted that the cumulation of 6 months each on charges 4 to 6 was low when compared to the same length of cumulation on charge 3 (in regard to which the applicant was not to be sentenced as a serious sexual offender). There is some truth in relation to that but it does not take into account the higher one year’s cumulation in respect of charge one which is discussed above. Overall, the total effective sentence is outside the range of the sound exercise of the sentencing discretion.
[26]Criminal Procedure Act 2009 s 280(1)(b).
There is no doubt that the first three rapes committed by the applicant were committed in circumstances where he exercised his dominion as a husband over his wife and took advantage of their marital relationship. The last three rapes were committed in circumstances where the applicant took advantage of his wife’s willingness to put her children’s relationship with their father ahead of her own interests and safety. In each instance, the applicant treated the complainant as his property, not as an equal, nor as a person worthy of his respect. That is abhorrent and cannot be tolerated.
I would note that the applicant does not appear to have re-offended in respect of his current wife, nor is there any evidence of other offending. To that extent, the period of delay does disclose a limited form of rehabilitation.
I would grant leave to appeal, would allow the appeal and would re-sentence the appellant as follows:
| Charge on Indictment | Offence | Maximum | Sentence | Cumulation |
| 1 | Rape [Crimes Act 1958, s38(1)] | 25 years imprisonment | 6 years imprisonment | 6 months |
| 2 | Intentionally cause injury [Crimes Act 1958, s18] | 10 years imprisonment | 3 months imprisonment | Nil |
| 3 | Rape [Crimes Act 1958, s38(1)] | 25 years imprisonment | 6 years imprisonment | 6 months |
| 4 | Rape [Crimes Act 1958, s38(1)] | 25 years imprisonment | 6 years imprisonment | 9 months |
| 5 | Rape [Crimes Act 1958, s38(1)] | 25 years imprisonment | 6 years imprisonment | 9 months |
| 6 | Rape [Crimes Act 1958, s38(1)] | 25 years imprisonment | 6 years imprisonment | 9 months |
| 7 | Rape [Crimes Act 1958, s38(1)] | 25 years imprisonment | 8 years imprisonment | Base |
| Total Effective Sentence: | 11 years 3 months imprisonment | |||
| Non-Parole Period: | 8 years | |||
| Pre-sentence Detention Declared: | 3 days | |||
| Other orders:
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