Jurj v The Queen
[2016] VSCA 57
•4 April 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2015 0120
| ROSS STEFAN JURJ | Applicant |
| v | |
| THE QUEEN | Respondent |
S APCR 2015 0121
| DIRECTOR OF PUBLIC PROSECUTIONS | Appellant |
| v | |
| ROSS STEFAN JURJ | Respondent |
S APCR 2015 0122
| DIRECTOR OF PUBLIC PROSECUTIONS | Appellant |
| v | |
| DANIEL MIFTODE | Respondent |
S APCR 2015 0125
| DANIEL MIFTODE | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | MAXWELL P, REDLICH and BEACH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 5 November 2015 |
| DATE OF JUDGMENT: | 4 April 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 57 |
| JUDGMENT APPEALED FROM: | DPP v Miftode (Unreported, County Court of Victoria, Judge Gucciardo, 25 May 2015) |
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CRIMINAL LAW – Appeal – Conviction – Rape – Jury directions – Forensic disadvantage warning – Propensity warning – Separate consideration direction – Whether directions adequate – Whether verdicts unsafe – Leave to appeal refused.
CRIMINAL LAW – Appeal – Sentence – Crown appeal – Rape – Multiple rapes by co-offenders – Child victim (14 y.o.) – Prolonged and repeated conduct – Victim degraded and humiliated – Youthful offenders – Delay – Rehabilitation – Residual discretion – Sentences manifestly inadequate – Appeals allowed – Respondents resentenced.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant and Respondent, Mr Jurj | Mr T Kassimatis with Ms A I Burchill | Valos Black & Associates |
| For the Applicant and Respondent, Mr Miftode | Mr P F Tehan QC with Mr A S Dickenson | Thexton Lawyers |
| For the Crown | Mr J Champion SC with Ms K Argiropoulos | Mr J Cain, Solicitor for Public Prosecutions |
MAXWELL P
REDLICH JA
BEACH JA:
Introduction
The applicants (‘RSJ’ and ‘DM’) were each convicted, after a trial, of multiple charges of raping the same victim (T). T was 14 at the time of the alleged offending. RSJ was convicted of five charges of rape (three as principal offender, and two as aider and abettor) and one charge of sexual penetration of a child under 16. DM was convicted of 10 charges of rape (seven as principal offender, and three as aider and abettor).
RSJ received a total effective sentence of five years and five months’ imprisonment, with a non-parole period of three years and seven months. DM received a total effective sentence of six years and nine months’ imprisonment, with a non-parole period of four years and three months.
Each of the applicants seeks leave to challenge his conviction, while the Director of Public Prosecutions contends that the sentences are manifestly inadequate.
For reasons which follow, we would refuse both applications for leave to appeal against conviction. We would allow each of the Director’s appeals against sentence. We would resentence DM to a total effective sentence of 12 years and two months’ imprisonment and RSJ to a total effective sentence of nine years and six months’ imprisonment.
A. THE CONVICTION APPEALS
The applications for leave to appeal against conviction raise three complaints: first, a complaint concerning the judge’s direction on the issue of the forensic disadvantage suffered by RSJ and DM as a result of the delay between the alleged offending and T’s allegations to police;[1] secondly, a complaint concerning the judge’s directions to the jury on the question of the need for separate consideration of the charges laid against each accused, and a complaint about the failure on the part of the judge to give a propensity warning;[2] and thirdly, a complaint that the verdicts of guilty were unsafe and unsatisfactory, primarily because of the lies told by T over time, and the inconsistencies said to exist in the evidence.[3]
[1]RSJ’s proposed ground 2 and DM’s proposed ground 3.
[2]RSJ’s proposed ground 1 and DM’s proposed ground 2.
[3]RSJ’s proposed ground 3 and DM’s proposed ground 1.
The offences were alleged to have taken place in the early hours of Sunday 5 April 2009. At that time, RSJ was 23 and DM was 20. As we have said, T was 14.
T was the only Crown witness who could give evidence of the facts on which the charges were based. There was no other supporting evidence. Findings of guilt against RSJ and DM were dependent upon an acceptance of T’s evidence.
The Crown case was that, shortly after midnight on the night of 4/5 April 2009, RSJ and DM offered T a lift from a suburban train station. She had been at a party but had felt excluded and out of place, prompting her to leave. When offered a lift, T was intoxicated to some extent and worried about going home to face her parents.
RSJ and DM first drove T to a coffee shop nearby and bought her a soft drink. They then left, with T, and eventually drove to a factory in another suburb. The factory was in an industrial area, and was one at which DM worked. RSJ and DM had keys to the factory. They went upstairs, where there was a couch and a mattress.
Couch episode[4]
[4]The identification of the separate episodes is taken from the Director’s written case.
On the couch, RSJ held T’s head and orally penetrated her with his penis. (This conduct was the basis for the alternative charges against him of rape (charge 11) and sexual penetration of a child under 16 (charge 12). The jury acquitted RSJ of the rape, but convicted him of the alternative charge.)
Following the initial oral penetration of T, DM asked her to come and sit with him on the mattress. She did so, and then fell asleep. She woke to find herself being undressed by both DM and RSJ. RSJ held T’s arms whilst DM removed all T’s clothing. They both reassured her, as they had done before, that she would be safe. T said, ‘No’ and told them to get off her. They told T that she could ‘scream all she wanted because no-one would hear anyway’.[5]
[5]Reasons [16].
First mattress episode
DM then asked RSJ whether he ‘wanted to go first’. DM then penetrated T’s vagina with his penis while he held her down. (Charge 1: rape, DM as a principal offender and RSJ as an aider and abettor). DM continued to have penile vaginal sex with T before swapping with RSJ, who then had penile vaginal sex with T (charge 2: rape RSJ as a principal offender and DM as an aider and abettor). T repeatedly told both RSJ and DM to get off her, and that she did not want them to touch her. (The Director refers to these offences as the ‘taking it in turn rapes’).
RSJ then slapped T’s face with his penis before forcing her to give him oral sex (charge 4: rape, RSJ as a principal offender and DM as an aider and abettor). While RSJ was penetrating T orally, DM raped her anally (charge 3: rape DM as a principal offender and RSJ as an aider and abettor). (The Director refers to these offences as the ‘simultaneous rapes’.) RSJ then ejaculated into T’s mouth and digitally penetrated her vagina (charge 5: rape, RSJ as a principal offender and DM as an aider and abettor).
T was, by this stage, crying uncontrollably. RSJ then left, leaving DM with T, who asked to be let go and driven back to where she had been picked up. T spotted her dress and attempted to put it back on.
Second mattress episode
DM grabbed T and took off her dress. He then took her back to the mattress and vaginally raped her (charge 6: rape, DM). DM then raped her orally (charge 7: rape, DM). DM then slept next to T, who cried herself to sleep. DM told T not to worry, saying ‘No one else will hurt you’.
Third mattress episode
T awoke during the night to find DM again raping her on the mattress (charge 8: rape, DM). DM then orally penetrated T until he ejaculated (charge 9: rape, DM). She continued to ask DM to leave her alone.
Shower episode
DM then picked T up and took her downstairs to the shower, turned it on, put T up against the wall and had penile/vaginal sex with her (charge 10: rape, DM). T was crying and vomited. DM gave her a towel and took her back upstairs to the mattress. T cried herself to sleep a second time.
Later that morning, DM drove T back to a shopping centre, near where the men had originally picked her up.
The defence cases at trial
At trial, both accused men contended that T was not a reliable or credible witness. They said that she had given different accounts over time of what had occurred, and was a liar. It was also said that her account of events contained inconsistencies and lacked supporting evidence.
At trial, RSJ’s case was that the first act of oral penetration (charges 11 and 12) was consensual, and occurred in circumstances where he believed that T was over 16 years of age. RSJ’s case was that, after this act of penetration, he had left the factory and no other sexual conduct occurred between T and him. DM’s case was that, while he witnessed the first act of oral penetration between RSJ and T, no other sexual conduct of any kind occurred after that.
DM gave sworn evidence at trial in support of his defence. (This evidence was given by the playing of a DVD of evidence he had given at an earlier trial, where the jury had been unable to agree upon any verdict.) RSJ did not give evidence. He relied upon the denials he had made in his record of interview.
The complaint about the judge’s charge concerning forensic disadvantage: RSJ’s proposed ground 2 and DM’s proposed ground 3
The issue of forensic disadvantage was first raised at trial during the cross-examination of one of the investigating police officers, Detective Senior Constable Dale Lapham. T made her initial complaint to police in July 2009. A video and audio recording of her evidence (VARE) was conducted on 5 September 2009. In the course of cross-examination by trial counsel for RSJ, Detective Lapham agreed that because of the delay in T’s allegations, steps such as a medical examination, the photographing of alleged injuries or scratches, an examination of the premises where the alleged offences occurred and the examination of clothing were not, or could not, be undertaken.
Following the conclusion of the evidence, and before final addresses, there was a discussion between counsel and the judge about whether a forensic disadvantage direction would be given. The judge indicated that he would give a forensic disadvantage direction ‘in relation to loss of opportunity to determine certain things that may include DNA off clothes for example, or bedding according to a forensic crime scene examination’.
In final address, counsel for RSJ dealt with the issue of the delay in T’s complaint in the following terms:
By now, any evidence that would have been available to support this story of rape had been lost. Any examination of the factory, the police would have undertaken closer to the time isn’t going to reveal anything useful now. Any analysis of her clothing, any medical examination of [J] herself, any scratches or bruising or tearing. Any bodily fluids, any blood, any hard physical evidence, it’s all gone.
Any chance of witnesses at the coffee shop, having a good recollection of these two young men and the lady supposedly stumbling around, it’s gone. Even the young people that she was with beforehand, their memories have all faded.
…
Because it is very hard to prove a negative. Very hard. Imagine if someone came along and accused you of doing something one Saturday night two and a half years earlier and you were arrested and you were asked questions at a police station about something that happened two and a half years earlier, and any of the evidence that might have been available back then is gone. Physical evidence is gone. Memories of witnesses have faded. Your memory of the night faded.
Following the address of counsel for RSJ, counsel for DM addressed the jury. Counsel for DM reminded the jury that counsel for RSJ had said that there was no hard objective evidence. Counsel for DM said that he agreed with that, and went on to say to the jury that the case fell to be decided entirely on the evidence of T.
Before the judge commenced his charge, the prosecutor raised a concern she had in relation to the submissions of RSJ’s counsel. The prosecutor said:
PROSECUTOR: The issue I’m referring to relates to the forceful submissions by my learned friend about ‘lack of any hard physical evidence.’ He referred to tearing. He said ‘such as tearing.’ He even referred to blood and effectively said ‘Due to [T’s] failure to report it in a timely way, any of the physical evidence is lost.’
This submission in itself causes a significant injustice. It is an unfair, not to mention, with respect, entirely misguided in terms of the prevalence of bodily physical evidence in rape cases, and there’s a real danger the jury are left thinking that one would expect to see this sort of physical evidence, particularly in a case like this, when multiple rapes are alleged, but in this case all this supposed hard physical evidence which could have proven things one way or the other is gone because of the delay, and coupled with a significant forensic disadvantage direction, I understand Your Honour’s direction is not going to go to tearing and blood and necessarily to any physical evidence on [T], but it’s a very powerful direction nonetheless, Your Honour, even in a general sense, and in those circumstances my learned friend’s submission assumes considerable significance that does so, in my submission, contrary to the interests of justice.
There was then the following exchange between the judge and counsel:
HIS HONOUR: How do you say that I should redress it?
PROSECUTOR: I thought about it yesterday Your Honour. I’m not sure how Your Honour could, other than by telling the jury — and I’m not saying this is appropriate, but I’m not sure how otherwise it could be rectified other than the jury being made aware that in many of these cases there is no hard physical evidence such as tearing or blood, and in fact in most of them there isn’t, even in violent non-consensual rape, but that’s effectively expert evidence.
HIS HONOUR: [Counsel for RSJ], do you have anything to say?
COUNSEL FOR RSJ: I submit that Your Honour can give them the forensic disadvantage direction in respect of the scratches and scars that [T] refers to in her evidence-in-chief, and Your Honour can tell them about the clothes and so on that I understand aren’t matters of controversy in respect of the forensic disadvantage direction, and Your Honour can tell them that there’s no evidence one way or the other about blood and tearing and the like and that there may well have been — I’ve got no difficulty with Your Honour saying that there may not have been blood and tearing.
The exchange between the judge and counsel for RSJ continued, before the following was said:
HIS HONOUR: I think the simplest way of addressing this issue is to say to the jury that those arguments are directed to what may have been lost. There are specific instances about which [T] gives evidence, and that is the clothes and scratches and scars which she says she had on her arms or on her legs or at some point. Anything else is really making the point that had there been anything there, that if the scene had been able to be examined in a timely fashion, then it may have revealed anything.
But the fact that the argument runs all of these things have been lost does not mean that they were there and they were lost. In other words, it’s not to say that that evidence existed which in any way corroborated anything. It’s to say if there had been such evidence there about which we know nothing, then there may have been an opportunity to get it. But that's all that it means. It's not saying, well, there was all this biological material and the fact that she didn't complain in a timely fashion means it's now all lost. That’s not what the argument means. The argument means that — I mean it can be asserted that there's a lack of hard physical evidence, but that doesn’t mean that the hard physical evidence was there in the first place.
COUNSEL FOR RSJ: That’s right, Your Honour.
HIS HONOUR: All that can be said is that it may have been there. But I think I'd be entitled to say to a jury that the experience in these type of cases is that in fact in many cases there is no hard physical evidence.
COUNSEL FOR RSJ: I’ve got no issue with that, Your Honour.
PROSECUTOR: If Your Honour wants to go that extra step and say that last thing, which was the experience in this case.
HIS HONOUR: Well, I have just said that.
PROSECUTOR: Yes.
HIS HONOUR: That I would be prepared to say that not only is the argument about what isn’t there really and why it isn’t there is a matter for speculation which they shouldn't engage in, but also that the experience in these cases is that very often there is no hard physical evidence.
A little later, the following was said:
HIS HONOUR: It’s important that things are stated accurately within the confines of the evidence and not in a generalised inaccurate way. To plainly suggest that evidence has been lost or that it is gone is far too general and inaccurate in circumstances which pertain in many of these cases.
Obviously it’s an argument that can be made, but I think fairly it’s an argument that needs to be put properly and I will endeavour to address it in this way. So I can be corrected if I say the wrong thing later on, but I will endeavour to deal with it in the context of the forensic disadvantage direction.
PROSECUTOR: As Your Honour pleases.
COUNSEL FOR RSJ: If the court pleases.
In respect of the issue of delay and forensic disadvantage, the judge charged the jury (as he said he would) in the following terms:
However, there is another aspect of delay which is important and it is significant that you — and you should take it into account. I have told you already and you will of course now know that there is a delay between alleged offences and complaint. So, another consequence of it is that of course it has, this delay, an impact on the ability of the accused to defend themselves against these charges because of that delay in time and the consequences that it has had in a practical sense, if you like.
And so in assessing the evidence in this case, you must have regard to the considerations that follow and significant considerations that follow upon the delay which have to do with what is said to have been lost opportunities because of that delay to gather or get or obtain or confirm evidence which may not have been able to be obtained because of that delay. Such as, for example, the opportunity for a medical examination of [T] or a closer examination of the clothes or closer examination or a crime scene examination of the factory and the items and indeed the opportunity to investigate some items more closely and more precisely. All of these create a forensic, that is simply a fancy word for court, for a disadvantage here in court that the accused actually suffer and I tell you that because you must have regard to that when you come to your considerations as to the facts. So I instruct you, as a direction of law, that you must take these disadvantages into consideration when determining whether the prosecution has proved guilt beyond reasonable doubt.
One of those opportunities was said to be, for example, that because of the way in which the evidence came out, for example, about the morning after pill that was said to have occurred in re-examination, [counsel for RSJ] put to you as a proposition that that meant that the defence had lost an opportunity to cross-examine about that. I just want to correct that slightly. The barrister appearing at that time for [RSJ] in cross-examining could have sought leave to further cross-examine about that topic if he had chosen to do so. So it is not the case that all opportunity to cross-examine about that was lost.
The second matter perhaps is more important because both defence counsel raised it in their argument and that is you were told of a lack of any ‘hard physical evidence’ in this case. Now in some parts of the argument I think [counsel for RSJ] might have referred to evidence which might have been available to confirm or at least to deal with tearing or blood. There really was not any allegations about that in [T’s] evidence but more importantly perhaps and precisely there was evidence about scratches, for example, and scars. That is a good example of something that [T] said which because of the delay was not able to be ascertained or confirmed. She alleges that at the end of this event she had scratches and scars.
If there had not been a delay, the argument runs, that causes the forensic disadvantage of not having been able to confirm that in any particular way, medical or otherwise. And it was said to you that such evidence is gone or the opportunity is lost. Just be mindful, members of the jury, the fact that there is no forensic evidence, if we want to call it that, of itself means neither that it was there and could not have been gathered or that it was not there. That would amount to speculation. It may have been there and the delay may have caused the loss of opportunity which is a forensic disadvantage for the defendants, to the accused. Or it may not have been there.
In these cases, that is, cases of sexual assault and rape, the experience of the court is that often there is no physical trace or evidence, even when non-consensual sex takes place. The most important consideration for you to remember is that you should not speculate or guess about what was there or could have been there if you have not heard any evidence about it. You are entitled to convict on the evidence of [T] alone only if you are satisfied beyond reasonable doubt by that evidence. Do not speculate about what you do not have.
Ask yourself always and go back to the question, has the prosecution proved its case beyond reasonable doubt on the evidence that it has been able to produce? But in this context of forensic disadvantage, you just take those disadvantages into consideration when determining whether the prosecution has proved guilt beyond reasonable doubt.
No complaint is made by RSJ and DM in relation to the first four and a half paragraphs of this direction. They submit that the judge was wrong, however, to give an anti-speculation direction in the course of his forensic disadvantage direction. Further, they submit that his Honour should not have made the statement that it was the experience of the court that ‘often there is no physical trace or evidence, even when non-consensual sex takes place’. It is submitted that the anti-speculation direction given in the course of the forensic disadvantage direction, together with the statement about the experience of the court, impermissibly undermined the force of the forensic disadvantage direction to which RSJ and DM were entitled. Further, they submit that, as a result of these errors, there has been a substantial miscarriage of justice.
In response, the Director contended that the passage in the forensic disadvantage direction about which complaint is made was responsive to the issue raised by RSJ’s counsel’s address to the jury, about the lack of any hard physical evidence (and in particular, any hard physical evidence of T suffering from any tearing or bleeding as a result of what she said had been done to her by RSJ and DM). Further, as was noted by the Director, having heard argument the judge foreshadowed the direction he would give; trial counsel for RSJ agreed; and trial counsel for DM did not demur or make any contrary submission.
The impugned passage in the judge’s direction was given in response to the address of counsel for RSJ (and to the endorsement of that address by trial counsel for DM in his final address). It was, as we have said, foreshadowed by the judge after argument; and it was acquiesced in by all trial counsel. Trial counsel for RSJ should not have addressed the jury that T’s failure to complain closer to the events in question had deprived his client of an ability to demonstrate some lack of a tearing injury or bleeding. T gave no evidence of suffering a tearing injury or bleeding. The judge was thus required to deal with the submission made to the jury by RSJ’s counsel, and endorsed by DM’s counsel.
One might now imagine different ways that the judge could have approached the matter. It is sufficient to say that counsel did not propose at trial any alternative that would have been an acceptable solution to the mischief caused by what had been said by RSJ’s counsel. In the circumstances of the trial, we are not persuaded that the approach taken by the judge was erroneous. First, the statement by the judge to the jury — that they should be mindful of the fact that there was no forensic evidence ‘neither meant that it was there and could not have been gathered or that it was not there’ — was, as a matter of logic, plainly correct. Secondly, the judge’s statement about ‘the experience of the court’ was made in the context of a charge that instructed the jury in clear terms that they should rely only on the evidence in coming to their verdict, and that they should not speculate. Thirdly, no complaint was made about the direction at trial. Fourthly, the statement reflected a proposition that, in reality, could not be gainsaid. In the context of the trial that was actually run, there was no appealable error.
Further, and in any event, this trial was governed by the provisions of the Jury Directions Act 2013. The relevant provisions of that Act have been discussed by this Court in Xypolitos v The Queen[6] and Sutton v The Queen.[7] In Sutton, the Court said:
[6](2014) 44 VR 423 (‘Xypolitos’) (Redlich, Tate and Priest JJA).
[7][2015] VSCA 251 (‘Sutton’) (Maxwell P and Redlich JA).
Under the Jury Directions Act 2013, one of the express purposes of the statutory regime is to ‘clarify that it is one of the duties of legal practitioners appearing in criminal trials to assist the trial judge in deciding which jury directions should be given.’ Section 8 repeats this purpose in introducing pt 3 of the Act, which concerns requests by counsel for directions.
Sections 10 and 11 require the legal practitioners to identify the matters in issue and the directions required in dealing with those issues and the evidence relevant to them. As this Court said in Xypolitos v The Queen, the obligation to request a particular direction continues to subsist during the charge. A failure to give a necessary direction or any misdirection will enliven counsel’s duty to request a further direction.
In Xypolitos, this Court interpreted the obligation under s 15 in the following words:
Now, before the obligation arises, the judge must be positively satisfied that the direction in question is necessary to avoid a substantial miscarriage of justice. It requires a state of affirmative satisfaction by the trial judge that the direction is of such central importance to one or more issues in the trial that, if the accused is convicted, a failure to give the direction will have occasioned a miscarriage of justice. If the circumstances, considered objectively, did not require such a conclusion, the failure to give the direction would not have amounted to an error in the trial.[8]
[8]Ibid [48]–[50] (citations omitted).
In order for RSJ and DM to make out their grounds of appeal that complain about the judge’s forensic disadvantage direction, s 15 of the Jury Directions Act 2013 requires them to demonstrate that the trial judge ought to have concluded that the failure to give a redirection correcting the impugned direction (in which trial counsel had acquiesced) was likely to occasion a substantial miscarriage of justice. RSJ and DM contend in this Court that there has been a substantial miscarriage of justice because the statements made by the judge about which complaint is now made ‘may have denied [them] of a fair chance of an acquittal’. Further, they contend that this was not a case where it could be said that the acquiescence of trial counsel for RSJ and DM in the now impugned direction was the product of some forensic choice.
We disagree. It seems to us that there is every likelihood that the acquiescence of trial counsel for RSJ and DM was the result of a forensic choice. It may have been thought by trial counsel that it would be better for their clients to have the judge give the direction he foreshadowed rather than to have the judge direct any criticism at the submission that had been made by RSJ (and endorsed and adopted by counsel for DM). Looked at objectively, this was a rational forensic decision made by trial counsel.[9]
[9]Cf Knowles v The Queen [2015] VSCA 141 [131]–[140] (Ashley, Redlich and Priest JJA).
Further, while not determinative, the acquiescing in the direction by trial counsel (and the failure to take any objection following the giving of the direction) are matters that may properly be considered as indicative that counsel, fully immersed in the context and detail of the trial, did not perceive any relevant error, or potential miscarriage of justice, in the judge in directing the jury in the way that he had foreshadowed.[10] In the end, as we have said, we are not persuaded that the directions now criticised by RSJ and DM were erroneous in the context of the trial that they chose to run. Far less are we persuaded that there was any miscarriage of justice caused by the statements with which issue is now taken.
[10]Cf Sadaka v The Queen [2015] VSCA 288 [64] (Redlich, Whelan and Kaye JJA).
All of that said, absent the context in which the passage complained of was delivered, there may be something to say for the proposition that a trial judge should not give an anti-speculation direction in the course of giving a forensic disadvantage direction (no matter how correct the anti-speculation direction may be as a matter of logic). While the giving of an anti-speculation direction is of course appropriate (if not essential) as a matter of routine, there may be a danger that if such a direction is given during the course of a necessary forensic disadvantage direction, then that forensic disadvantage direction might be impermissibly undermined. In the present case, it may have been better if the judge had responded to the issue raised by RSJ’s counsel’s final address by simply noting that, insofar as counsel may have suggested that delay may have deprived RSJ and DM from an ability to obtain evidence about a lack of tearing or bleeding, it was to be remembered that T had not given any evidence about suffering from any of those physical effects.[11]
[11]Cf T’s evidence about the tearing of her clothing.
Similarly, and but for the context in which the direction was given, there may have been some force in the submissions of RSJ and DM that the statement that it was ‘the experience of the court … that often there is no physical trace or evidence, even when non-consensual sex takes place’ had the effect of undermining the force of the forensic disadvantage direction given by the judge. We would not wish to endorse the making of such a statement as part of directions generally given in cases of the present kind.
However, for the reasons given above, and remembering the context in which the matter arose and was argued and dealt with at trial, RSJ’s proposed ground 2 and DM’s proposed ground 3 must be rejected.
The separate consideration/propensity issue: RSJ’s proposed ground 1 and DM’s proposed ground 2
In his written case, RSJ extracted two sentences from the judge’s charge about which complaint was made. The sentences were:
When I use the word compendious ‘they’, I do not mean to imply or say to you that the guilt or non-guilt of one of them must necessarily or at all bear on the guilt or non-guilty verdict of the other (sic).
…
It would be an error on your part to say that because you find a man guilty of something, the other must also be guilty, except I suppose in the charges in which there is an allegation that they aided and abetted each other, then different considerations apply.
In RSJ’s written case it was submitted that these sentences disclose two vices. First, it was submitted that the judge’s direction — that the guilt or innocence of one accused on any one charge did ‘not necessarily or at all’ imply the guilt or innocence of the other — was prone to have conveyed to the jury that it was open to them to reason that one accused man’s guilt could inform (in an impermissible way) the jury’s verdict on the other. Secondly, it was contended that the judge’s express qualification to his separate consideration direction, being said not to apply to ‘the charges in which there [was] an allegation that they aided and abetted each other’ was wrong and served only to compound the vice said to be inherent in ‘the judge’s earlier infelicity’.
In argument before this Court, counsel for RSJ (whose submissions on this issue were adopted by counsel for DM) described the ‘gravamen’ of RSJ’s proposed ground 1[12] in the following terms:
In a case of 12 charges with two co-accused there should have been a propensity warning. It doesn’t get any better than that.
[12]DM’s proposed ground 2.
The sentences about which RSJ made complaint in his written case were contained in the following directions given by the judge:
In this the case the prosecution has alleged that the two co-accused committed the offences of rape and an alternate of sexual penetration of a child under 16. These men have pleaded not guilty and so it is for you and you alone to decide whether they are guilty or not guilty. When I use the word compendious ‘they’, I do not mean to imply or say to you that the guilt or non-guilt of one of them must necessarily or at all impact on the guilt or not guilty verdict on the other. They are separate accused. Their case is separate.
They are separately represented by counsel and the prosecution has alleged separate charges in relation to each of them, even though in some of the charges they might be together on that charge. But you will consider each of these charges separately and you will consider their participation in each of those charges separately.
It would be an error on your part to say that because you find a man guilty of something that the other must also be guilty except, I suppose, in the charges in which there is an allegation that they aided and abetted each other. Then different considerations apply. But just guard against thinking that is essentially a shortcut that says, well, we have found such and such guilty of this offence, therefore. You must consider each charge separately based on the evidence that relates to that charges and consider each one on the evidence that is there to the standard that is required.
Immediately, it must be said that no complaint was made about this direction (or the sentences about which complaint is now made) to the judge at trial by any of the counsel who appeared before him. Undoubtedly, a stronger direction about separate consideration could have been given at trial. However, none was ever sought.
The statement that different considerations applied to the charges where there was an allegation that the accused aided and abetted each other might, if made on its own, be capable of criticism. However, the judge’s charge contained extensive directions on the topic of aiding and abetting.[13] The judge charged the jury that for one of the accused to be convicted as an aider and abetter, the other accused had to have committed the relevant offence. In those circumstances there was a relationship between the jury’s consideration of a charge that one of the accused aided and abetted his co-accused and the jury’s consideration of the co-accused’s corresponding charge.
[13]Indeed the judge had also been at pains to give (and gave) the jury detailed instructions about the law relating to aiding and abetting during the course of the trial, and before final addresses.
What we have already said in relation to the Jury Directions Act 2013, and the failure by trial counsel to take objection in relation to the judge’s charge on the topic of forensic disadvantage, is equally applicable to the complaints made about the judge’s charge and/or failure to charge on the issues of separate consideration and propensity. Further, having regard to the way the case was conducted at trial, it is difficult to see that there was any real risk that the jury might engage in propensity reasoning. The failure by trial counsel to ask for a propensity direction fortifies us in this view. In the end, we are not persuaded that the trial judge was required, in the circumstances of this case, to have given a propensity warning, or that the judge ought to have concluded that the failure to provide the direction (or redirection) that it is now said should have been provided was likely to occasion a substantial miscarriage of justice.[14]
[14]Cf s 15 of the Jury Directions Act 2013, and Xypolitos (2014) 44 VR 423, 433 [44].
For these reasons, RSJ’s proposed ground 1 and DM’s proposed ground 2 must be rejected.
The unsafe or unsatisfactory verdicts issue: RSJ’s proposed ground 3 and DM’s proposed ground 1
We turn now to the proposed grounds of appeal that assert that the convictions of RSJ and DM were unsafe or unsatisfactory. In oral argument before this Court, counsel for DM (whose submissions on this issue were adopted by counsel for RSJ) contended that the thrust of the unsafe and unsatisfactory ground was that the lies told by T, and the inconsistencies in her evidence and between what she said in Court and to others outside Court, meant that the jury were bound to have entertained a reasonable doubt about the guilt of the accused. This was said to be particularly so in the absence of any supporting evidence, and having regard to the sworn denials by DM of the offences with which he was charged. Additionally, in DM’s written case, it was contended that DM’s acquittal on charge 11 damaged the credibility of T with respect to all other charges.[15]
[15]Cf Jones v The Queen (1997) 191 CLR 439, 453.
Counsel for DM, both orally and in writing, identified the various occasions upon which T had been shown to have told lies and/or was said to have told a lie as follows. The first lie was said to be when T told DM and RSJ at the coffee shop that she was 15 years of age, when in fact she was at that time 14 years of age.
Next, on the afternoon of 5 April 2009, having been taken to a police station, T told the police and her mother that she had slept in a motel during the previous night. When her mother pointed out that she had no money, so that she could not have slept in a motel, T then said that she had slept in a park. As to the clothing she was wearing, T initially said that she had purchased the clothing. However, again when it was pointed out to her that she had no money, T admitted that she had stolen the clothes (tracksuit pants) upon being returned to the shopping centre by DM that morning.
However, on 31 July 2009, T told a different story to a school counsellor whom she had been seeing for a number of months. On this occasion, T said that she had been hit on the head, dragged into a car and raped by two men in a park. There is subsequently an embellishment of this version with T pointing out the park and the area where the rape is said to have occurred. This version was also told to a CASA[16] counsellor, and also persisted with by T when she was questioned by an investigating police officer on 3 September 2009. On this occasion (being questioned by the police officer), T provided further embellished detail about what was said to have occurred to her in the park. Additionally, this version was persisted with, up to the commencement of the trial, so far as T’s parents were concerned — T’s mother giving evidence at trial that she had never been told that the ‘hit on the head, dragged into a car and raped in the park’ version was untrue.
[16]Centre Against Sexual Assault.
On 5 September 2009, during the VARE, T recanted the hit on the head, dragged into a car and raped in the park version, and gave (with some variants) the version of events upon which the Crown case was based. T was asked and answered the following question:
Did you change your story between 3 and 5 September 2009 because you were worried that if the police started investigating they would find out that you lied to them? --- Yes.
That said, during the course of cross-examination, T also gave evidence of matters and events additional to what she had said in her VARE and evidence-in-chief. These included the oral penetration, the subject of charges 11 and 12, T’s evidence about kissing RSJ on the couch, and her evidence of going for a drive with three boys from the party that she had attended on the night in question. Additionally, T gave evidence in re-examination about her father finding a morning after pill in her bag on 5 April 2009 and that this had caused her father to be upset with her (and was, T thought, one of the reasons for her father having smacked her on 5 April 2009; the other reason being that T had stayed out overnight without permission). It was submitted that these variations and subsequent disclosures were examples of what was said to be T’s ‘ongoing laissez faire attitude towards the use of the truth’.
Counsel for DM in this Court highlighted additional differences between T’s various responses to particular questions in the VARE and responses given by her during her evidence. These included the circumstances in which T’s dress was removed at the factory, and whether T left her bra and underwear at the factory (or whether it was only her bra). Further, the inconsistencies between T’s account and other evidence, particularly between T’s evidence and T’s mother’s evidence, as to the existence of scratches and scarring, and whether T’s dress was torn, were also highlighted by counsel for DM.
As to the circumstances in which T came to give her different accounts of what occurred after she left the party on the evening of 4 April, T and her mother gave evidence at trial that T’s father was strict. When T arrived home with her parents on 5 April 2009, and after T’s father had discovered the morning after pill in T’s bag, T’s father smacked her as punishment for staying out. What is clear from T’s evidence is that, for as long as she was able, T was concerned to conceal the fact (and particularly from her parents) that she had gone voluntarily with RSJ and DM to the factory in the early hours of 5 April 2009.
As to lying to the school counsellor, T gave evidence that she lied to the counsellor about what happened because she did not want anyone to know, and did not know how to tell someone she was close to, about what had actually happened.
The prosecution case at trial, and in this Court, was that T was fundamentally a witness of truth who had found herself in a very difficult position. It was submitted that, while T had plainly told versions that were lies, these lies were fairly explicable in the circumstances of a 14 year old girl with T’s family background.
In our view, the reliability and credibility of T in the present case were quintessentially jury questions. The principles that apply to a ground of appeal alleging that a verdict is unsafe or unsatisfactory are well established. The test to be applied by this Court is whether it was open to the jury, on the evidence, to be satisfied beyond reasonable doubt of the guilt of the accused on the charges that are the subject of the appeal. Thus, for an ‘unsafe or unsatisfactory’ ground of appeal to succeed, it must be demonstrated that the jury must (as distinct from might) have entertained a doubt about the guilt of the accused. As has been said before, in considering that question, an appeal court must bear in mind that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and that the jury has had the benefit of seeing and hearing the witness.[17]
[17]M v The Queen (1994) 181 CLR 487, 493; Libke v The Queen (2007) 230 CLR 559, 596–7; R v Nguyen (2010) 242 CLR 491, 499 [33]; SKA v The Queen (2011) 243 CLR 400, 405 [11]–[13]; R v Klamo (2008) 18 VR 644, 653–4 [38]; Sadaka v The Queen [2015] VSCA 288 [27].
In the absence of some explanation for the different versions given by T between 5 April 2009 and the time of trial, there might be much to be said for the proposition that, with the very different versions told by T over time in this case, the jury must have entertained a reasonable doubt about the guilt of the accused. In our view, however, the explanations given by T, in evidence, for the different versions given by her were well capable of being accepted by a jury properly considering the whole of the evidence, including T’s age, background and circumstances. Further, we do not see the inconsistencies in T’s evidence relied upon by counsel for RSJ and DM (either alone or in combination with the other matters relied upon by them) as requiring the jury to have entertained a reasonable doubt about the guilt of RSJ and DM. It was open to the jury to conclude that, in the circumstances we have described, the different versions given by T were the product of a 14 year old girl’s attempt not to have revealed to her parents that she had voluntarily gone to the factory with two men, rather than any attempt to concoct false allegations against the accused.
As to the other inconsistencies in T’s evidence, and the differences between her evidence and her mother’s evidence, it seems to us that these are no more than the sorts of inconsistencies and differences that one finds in any criminal trial where witnesses are asked to give their own accounts of relevant matters. In our view, none of the matters relied upon by DM and RSJ rise to the level of being so inconsistent or contradictory as to require the jury to have had a reasonable doubt about the guilt of the accused.
Finally, we should say something about the submission that the acquittal of DM on charge 11 somehow renders the jury’s guilty verdicts on the other charges unsafe or unsatisfactory. There is no substance in this submission. When one examines T’s evidence given in respect of the facts underlying charges 11 and 12 and the facts underlying the other charges, one can see why the jury might not have been satisfied beyond reasonable doubt about the absence of consent in relation to the first oral penetration of T. Far from rendering the other guilty verdicts unsafe or unsatisfactory, in our view the acquittal on charge 11 discloses that the jury carefully considered the difference in the quality of the evidence given by T in respect of the charge of which RSJ was acquitted from the charges of which both RSJ and DM were convicted.
For these reasons, RSJ’s proposed ground 3 and DM’s proposed ground 1 must be rejected.
Each application for leave to appeal against conviction must therefore be refused.
B. THE DIRECTOR’S SENTENCE APPEALS
RSJ and DM were sentenced as follows:
RSJ
Charge on Indictment Offence Maximum Sentence Cumulation 1 Rape [Crimes Act 1958 s 38(1)] 25y 2y 3m 2 Rape 25y 4y Base 3 Rape 25y 2y 3m 4 Rape 25y 4y 4m 5 Rape 25y 4y 4m 12[18] Sexual penetration of a child under 16 [Crimes Act 1958 s 45(1)] 15y 3y 3m Total Effective Sentence: 5y 5m Non-Parole Period: 3y 7m Pre-sentence Detention Declared: 62 days Other orders: Sentenced as a serious sexual offender in respect of charge 2; Pursuant to s 34 of the Sex Offenders Registration Act 2004, a reporting period of 15 years; Forensic Sample Order [18]RSJ was, as we have said, acquitted of an alternative charge of rape (charge 11 on the Indictment).
DM
Charge on Indictment Offence Maximum Sentence Cumulation 1 Rape [Crimes Act 1958 s 38(1)] 25y 4y Base 2 Rape 25y 2y 3m 3 Rape 25y 4y 4m 4 Rape 25y 2y 3m 5 Rape 25y 2y 3m 6 Rape 25y 4y 4m 7 Rape 25y 4y 4m 8 Rape 25y 4y 4m 9 Rape 25y 4y 4m 10 Rape 25y 4y 4m Total Effective Sentence: 6y 9m Non-Parole Period: 4y 3m Pre-sentence Detention Declared: 62 days Other orders: Sentenced as a serious sexual offender in respect of charge 1; Pursuant to s 34 of the Sex Offenders Registration Act2004, a reporting period of 15 years
The sole ground of the Director’s appeal in each case is that the sentences are manifestly inadequate. The Director contends that the total effective sentence and non-parole period are manifestly inadequate. The same contention is made with respect to the individual rape sentences.
We deal first with the objective gravity of the offending, before turning to matters personal to the respective offenders.
Objective gravity
The Director’s submission is that the offending was ‘very grave’ and should be viewed as being ‘within the high range’ for the offence of rape. The Director emphasises a number of features of the offending. First, the victim was only 14. Even based on what T herself had said to them, the offenders knew that she was no older than 15. According to the Director’s submission, she was
confused, affected by alcohol and exceptionally vulnerable in the circumstances in which she found herself. The offending occurred while the child complainant was held at a remote industrial location.
Secondly, the offending ‘involved multiple instances of protracted penetrations of every kind — oral, anal and vaginal’, and it was punctuated by breaks in time, location and circumstances. According to the Director’s submission
there was an element of regrouping, reflection and rest between offences. This is not one episode of multiple penetrations occurring over a short amount of time, but amounts to a course of conduct within which there was separate and discrete offending.
Thus, in the case of RSJ, there were two discrete episodes: the couch episode and the first mattress episode. In the case of DM, the offending continued throughout the night and involved four discrete episodes (the first, second and third mattress episodes and the shower episode).
The Director also points out that the rapes in the first mattress episode were perpetrated in company and involved one instance of simultaneous oral and anal rapes. According to the submission:
This egregious conduct was especially denigrating, and added significantly to the overall criminality.
The Director also relies on the fact that:
·the men raped T in the face of her obvious distress and her persistent pleas for them to stop;
·no condoms were used;
·both men displayed ‘a callous and disturbingly arrogant attitude’ towards T, evidenced by their having told her that she could ‘scream all she wanted because no one would hear anyway’; and
·as the judge remarked, T’s ‘powerful’ victim impact statement clearly revealed the traumatic impact of the offending upon her.
The Director relies on the sentencing judge’s description of the behaviour as ‘a vile course of conduct’. In his Honour’s view, the conduct of the men
disregarded the most fundamental rights of this child complainant and rendered her an object for sexual gratification in a way which was in effect a subjugation which debased the victim in fundamental ways.[19]
[19]Reasons [26].
In relation to the charges where the offender was the direct perpetrator, the Director submits that these are properly characterised as ‘high range’ instances of the offence. The Director refers in particular to the ‘taking it in turn’ rapes, which were particularly debasing of T, and the simultaneous anal and oral rapes. The Director submits that individual sentences of four years on these charges, after a plea of not guilty, ‘fall obviously short of what the objective gravity of this offending warranted.’
As to the individual ‘aid and abet’ sentences, the Director submits that the sentences of two years failed to reflect adequately either the gravity of the offending or the level and nature of the assistance rendered by the co-offender. In this case, it is submitted, the aiding and abetting involved active and physical participation. That is,
the conduct of each [offender] played a direct, immediate and continuing role in bringing about the offending.
In the circumstances, it is said, there was no reasonable basis for imposing on the co-offender a sentence which was only 50 per cent of that imposed on the perpetrator.
The submission for RSJ accepts that his part in the offending did represent ‘a course of conduct’ but maintains that it was confined to one episode — or two, at its highest — over a ‘relatively short period’. The submission rejects the Director’s characterisation of his offending as ‘punctuated by breaks in time and location’ and as involving ‘an element of regrouping, reflection and rest’. RSJ accepts that it was ‘very serious offending’ but points out — correctly — that much of what occurred took place after he had left.
The written case for DM did not respond to any of the Director’s specific submissions, merely contending that the sentencing judge ‘had regard to all the relevant matters [and] afforded them appropriate weight’. In oral argument, however, senior counsel for DM (who had not prepared the written case) argued that the following features of the case were relevant:
·T had gone with the men of her own accord;
·the offending was opportunistic and not premeditated;
·there was no gratuitous violence and there were no threats of violence; and
·no weapon was used.
The Director’s response is that the absence of these features ‘simply means that the offending fell short of being at the very highest end’ of gravity.
Features going to objective gravity
The Judicial College of Victoria maintains — for the assistance of judges and practitioners — very helpful and informative ‘overviews’ of decisions of this Court on sentencing for a range of offences. Relevantly for present purposes there is an overview of decisions on rape. For each decision, the overview records the ‘key details’ of the offence and the offender, and the sentence(s) imposed on the rape charge(s).
A review of those decisions reveals that the features which are typically taken into account by sentencing courts (and by this Court on appeal) in assessing the gravity of a particular offence of rape are as follows:
·whether the offence was premeditated;
·whether the offender acted alone or in company;
·how long the attack lasted and whether the victim was raped more than once;
·whether the offending involved violence or threats of violence;
·whether a weapon was used;
·whether the victim was injured in the course of the rape;
·whether the victim was humiliated or degraded;
·whether the offender used a condom;
·whether the victim was particularly vulnerable; and
·whether the offender ignored warnings or protests by the victim.[20]
[20]See, for example, R v Gill [2010] VSCA 67 [56]–[57].
Reference to a list of this kind — which, obviously enough, is descriptive, rather than prescriptive — assists in explaining why the rapes in the present case were so serious, notwithstanding that — as the submission for DM pointed out — there was no violence, or threatened violence, and no physical injury to the victim.
There are, in our view, several features of the case which make it particularly grave. The first — and this applies to both, although more so in DM’s case — is the prolonged nature of the offending and the repetition of acts of rape. The second is that, for so long as RSJ was present, each acted with the support and encouragement (express or implied) of the other. This feature heightens the men’s culpability — offending in company is both more vicious and more cowardly — and underlines how powerless the victim would have felt.
Thirdly, the ignoring of T’s obvious distress, and her pleas for them to stop, underlines the humiliation these men inflicted on their victim. They treated her not as a person deserving of respect but as a chattel, a thing to be used for their sexual gratification in whatever way it suited them.
In our view, the prolongation and repetition make this offending especially serious. Even if an attack like this can properly be characterised as unpremeditated when it commences, that character is lost once the conduct persists. Even at the beginning, this was not ‘spur of the moment’ offending. On the contrary, the offenders first took T to a café, to buy her a soft drink, before driving her to the factory. Throughout that period, they were doubtless forming — if they had not already formed — the intention of having sex with T.
There was plenty of time for them to reconsider, and drop her safely somewhere. In this sense, the word ‘unpremeditated’ really has no application. This was offending calmly and purposefully embarked upon. Any expectation that T might be a consenting participant was wholly irrelevant since — as already pointed out — both men knew that she was under 16.
After the initial sexual penetration of T by RSJ, T fell asleep. During the period she was asleep, the offenders could have abandoned whatever plan they might have had. Instead, it was their joint undressing of her which caused her to wake up. And it was at that point that they made the menacing — and threatening — remark about the futility of her screaming out for help. They wanted her to know that she was under their control, and at their disposal.
Then followed the ‘taking it in turn rapes’. We agree with the Director that such treatment of anyone is peculiarly appalling. Nothing could illustrate better the treatment of T as a mere chattel.
When those rapes were over, T doubtless hoped that her ordeal might finish. How much more traumatic for her, then, when she was then subjected to simultaneous rapes, with RSJ’s penis forced into her mouth while DM forced his penis into her anus. Conduct of that kind is, quite simply, unspeakable. And, if that was not enough, RSJ having ejaculated then raped T once more, by digitally penetrating her vagina.
RSJ then left. T pleaded to be released, obviously hoping once again that her suffering might have come to an end. But, in what can only be described as merciless conduct, DM grabbed her, took off her clothes and raped her twice, once vaginally and once orally.
Again T fell asleep, only to wake to find DM raping her again, both vaginally and orally. Again, she asked him to leave her alone and, again, he responded by raping her a final time.
The Court drew attention during argument on the appeal to what was said in Director of Public Prosecutions v DDJ.[21] The Court was there dealing with a different offence — that of maintaining a sexual relationship with a child under 16 — but what was said applies with equal force to prolonged offending involving repeated rapes, as occurred here. The Court said:
The repetition of the sexual abuse is likely to heighten the victim’s fear that the abuse will occur again and to increase the damage which he or she suffers. Equally, the repetition is likely to make the offender progressively more aware of the effect the abuse is having on the victim. In each of these respects, culpability is heightened.[22]
[21](2009) 22 VR 444.
[22]Ibid 452 [32].
Senior counsel for DM properly conceded that the persistence of his client’s offending was an aggravating factor. The same is true for RSJ, for the reasons we have given.
Comparable cases
The Director annexed to his submission a table of decisions of this Court said to provide assistance in the identification of the appropriate range of sentences for this offending. The first of these was Sharifi v The Queen.[23] In that case, the offender was resentenced by this Court (sentencing error having been established) to eight years’ imprisonment on one charge of rape. The offender came upon the complainant, a girl aged 18 years, sitting on the footpath outside a nightclub. He offered her a lift to where her friends were. He stopped the car, threatened her and then forcibly raped her. When she screamed, he covered her mouth and put his hand around her throat.
[23][2013] VSCA 126.
There were significant mitigating circumstances. The offender suffered from post-traumatic stress disorder, as a result of his experiences in Afghanistan, and consequent depression and anxiety. He was socially estranged and very isolated in Australia.
The second decision relied on was in J v The Queen.[24] In that case, the offender was convicted after a trial of two charges of rape. The offender was 23 and the complainant was 15 and three-quarters. They had both been at a birthday party at which a great deal of alcohol was consumed. The complainant had gone to a spare bedroom and locked the door. Her next recollection was of lying on her back being vaginally penetrated by the offender. He struck her face, and then vaginally penetrated her a second time.
[24][2012] VSCA 256.
The sentences of six years’ imprisonment on each rape charge were not interfered with on appeal. The Court noted that the sentences were lower than they would otherwise have been, because the sentencing judge had been satisfied that the offender’s intellectual disability:
·reduced his moral culpability;
·meant that both specific and general deterrence should be ‘sensibly moderated’; and
·would make his time in prison more burdensome than it would be for someone with normal mental functioning.
The third decision was Director of Public Prosecutions v Werry.[25] In that case, the offender was convicted after a trial of one charge of rape and was sentenced to seven years’ imprisonment. (An appeal by the Director against the sentence was dismissed by this Court.) The complainant was an alcohol-affected 18 year old. The offender offered her a lift and then drove her to a secluded area of parkland, having purchased condoms on the way. The offender then pushed her to the ground and forcibly raped her. The offender, who was aged 28 at the time of sentence, had strong family support and a good work record. Although there was no remorse, he had some prospects of rehabilitation.
[25](2012) 37 VR 524.
In that case, the prosecution had submitted on the plea that the case fell at the ‘higher end of the mid-range’ of seriousness. Reliance was placed on the following matters:
·the victim was young and vulnerable, as would have been readily apparent to the offender;
·his buying of condoms after picking up the victim showed premeditation;
·over and above the inherent violence of rape, the offender had acted violently by pushing the victim to the ground;
·the offending was degrading and humiliating and it continued in the face of the victim’s audible protests; and
·after the rape was over, the offender left the victim ‘alone in a deserted and unknown location, knowing that she had no form of communication and no money’.[26]
[26]Ibid 529 [30].
Cumulation
As to cumulation, the Director makes three distinct submissions. First, he contends, the cumulation orders in relation to the rapes individually perpetrated by each offender (four months) and RSJ’s offence of sexual penetration of a child under 16 (three months) ‘failed to recognise the multiplicity of conduct and penetrations involved and the temporal and circumstantial breaks between many of these acts’. The separate criminality, it is said, warranted significant additional punishment.
Secondly, although the acts within the ‘first mattress episode’ were committed in relatively quick succession, they were ‘of a different and progressive quality’. The offending commenced with the ‘taking it in turn’ rapes and escalated to the ‘simultaneous oral and anal’ rapes. The sentences needed to reflect this.
Thirdly, as the judge noted, DM fell to be sentenced as a serious sexual offender on charges 3–10, and RSJ as a serious sexual offender on charges 3–5 and 12. In accordance with s 6E of the Sentencing Act 1991, protection of the community was the principal sentencing consideration in relation to those offences. Moreover, the scope for applying the totality principle was modified.[27] The Director points out that the same amount of cumulation (three months) was ordered on those ‘aid and abet’ sentences where the presumption of cumulation did not apply[28] as on those where it did.[29]
[27]Gordon v The Queen [2013] VSCA 343 [74]; DPP v Morris [2015] VSCA 155 [68].
[28]RSJ — charge 1; DM — charge 2.
[29]RSJ — charge 3; DM — charges 4 and 5.
Mitigating factors — youth, rehabilitation and delay
Both offenders relied on the delay of three-and-a-half years between their arrest and charging (December 2011) and sentence (May 2015). (The Director argues that the pre-charging delay — from April 2009 until December 2011 — is irrelevant for these purposes, since the respondents ‘were not suspects during that period’.)
As is well understood, delay may be relevant to sentencing in two distinct ways. First, if the offender has achieved rehabilitation during the period of delay, the sentencing court will be slow to impose a sentence which would interrupt that process. Secondly, the delay may have created unfairness, through the offender having had the burden of an unresolved proceeding hanging over his head.[30]
[30]Merrett v The Queen (2007) 14 VR 392, 400 [35].
In this case, it was the unfairness argument on which the offenders principally relied on the plea. The sentencing judge said:
[I]n your case the legal process has been convoluted and longer than usual, which no doubt has impacted on you over the years. In the end, the sentence is not substantially or only slightly ameliorated by this factor. In my view it does call for the application of proportionality to the sentence passed upon you. Just as validly, it is to be noted that the passage of time would have been naturally impacting on your victim.[31]
[31]Reasons [6].
As to rehabilitation, the judge’s finding was that RSJ’s prospects of rehabilitation were ‘probably good’. The Director points out that RSJ was subsequently convicted of a domestic violence offence, committed in November 2012, for which he received an aggregate immediate term of imprisonment of 12 months, with a non-parole period of six months. He was not paroled because of the rape charges. He served the entirety of that sentence and was released in November 2013.
The submission on the plea was that, in the period since his release, he had turned his life around. On the appeal, counsel for RSJ (who did not appear on the plea) emphasised his ‘reformation’ in that period, and the steps which he had taken to bring it about. His progress in the period of 18 months between release and sentence was therefore to be regarded as ‘a significant fact in mitigation’.
The steps which RSJ had taken were as follows. He has ceased using drugs and, until the first trial, was in full-time employment. He had undertaken anger management and counselling through the Salvation Army. The judge was satisfied that, together with ongoing family support and the presence of his son in his life, these were ‘positive indicators’ of prospects of rehabilitation.
In relation to DM, the judge’s finding was that his prospects for rehabilitation ‘appear to be good’. The Director points out that DM had three subsequent matters, as follows:
·December 2009: trafficking cannabis, dealing with proceeds of crime: fine;
·2012: trafficking ecstasy: six months’ imprisonment, suspended for 12 months; and
·2014: resisting and assaulting police: fine.
In the view of the sentencing judge, these
subsequent matters show some disregard for lawful behaviour and go to the assessment of your prospects for rehabilitation.[32]
[32]Reasons [56].
As to their youth, RSJ was 23 and DM was 20 at the time of the offending. The judge described DM as having been ‘a youthful offender’, concluding that this must go ‘to some extent’ to mitigate the sentence. No equivalent finding was made in relation to RSJ.
The Director submits that, because of the gravity of the offending, the mitigating effects of youth were necessarily reduced. The Director relies on the following statement by Redlich JA in Azzopardi v The Queen:[33]
The general propositions which flow from these authorities is that where the degree of criminality of the offences requires the sentencing objectives of deterrence, denunciation, just punishment and protection of the community to become more prominent in the sentencing calculus, the weight to be attached to youth is correspondingly reduced. As the level of seriousness of the criminality increases there will be a corresponding reduction in the mitigating effects of the offender’s youth.
[33](2011) 35 VR 43, 67 [44].
Although the judge took into account DM’s youth, his Honour said:
Clearly, general deterrence must be a primary consideration in the sentence. In the circumstances, the victim and the community looks to the court to denounce and punish appropriately such appalling behaviour.
Those who are minded to deal in this fashion, with other vulnerable people, for their own base interests, must know that the law will seek to redress this criminal conduct, extract stern punishment and retribution and seek to discourage such conduct in no uncertain terms.
Impairment of mental functioning — RSJ
On the plea, RSJ relied on two reports from a specialist psychiatrist and the other from a clinical and forensic psychologist. The judge accepted the psychiatrist’s opinion that, following his brother’s death by suicide in 2007, RSJ had
developed a persistent complex bereavement response complicated by post-traumatic stress disorder. You did develop dependency and experienced paranoid psychosis and these are in remission.[34]
The judge concluded, on the basis of this evidence, that the fifth and sixth limbs of Verdins were engaged. In his Honour’s view:
[Y]our disorder, which relates to your grief … may mean that incarceration may weigh more heavily on you than on a person of normal health and may affect your mental progress adversely.[35]
[34]Reasons [47].
[35]Reasons [43].
The Director’s submission emphasised that these findings were limited to the burden — and the impact — of imprisonment. It was not suggested that RSJ’s disorder affected in any way his moral culpability or the need for general or specific deterrence. Moreover, the Director submitted, the findings with respect to limbs five and six of Verdins were ‘tentative’. As a result, it was said, any reduction in sentence could only have been limited.
Manifestly inadequate
In our view, the sentences were outside the range reasonably open to the sentencing judge. More particularly, we are satisfied that the individual rape sentences and the total effective sentence and non-parole period are all manifestly inadequate. Recognising that weight needed to be given to each of the matters relied on in mitigation, the sentences nevertheless failed to reflect the objective gravity of the offending.
Both respondents submitted that, even if the Court were persuaded that the sentences were manifestly inadequate, the appeals should nevertheless be dismissed in the exercise of the residual discretion.[36] (It is, of course, for the Director to persuade the Court to exercise its discretion to vary the sentences under appeal.[37])
[36]See Karazisis [109]–[110]; Zhuang v The Queen [2015] VSCA 96 [45]–[49].
[37]DPP (Cth) v KMD [2015] VSCA 255 [121].
The submission for DM relied on two factors. The first was the length of time which had elapsed since the offending. DM was 20 when he committed the offences in April 2009. It is now more than six-and-a-half years later and the Court should accept that DM is ‘older and wiser’. Secondly, it was submitted, if the judge fell into error, that error should be seen to have been the product of inadequate assistance provided by the prosecutor. As noted earlier, the prosecutor did not refer the judge to any of the available sentencing statistics for rape nor to any of the decisions (discussed above) relied on by the Director in his appeal submission.
Although the decision of the High Court in Barbaro[38] prevents a judge from seeking assistance from a prosecutor on what is said to be the applicable sentencing range, the Court in that case reaffirmed that it was the duty of the prosecutor to assist the sentencing judge and, for that purpose, to draw the judge’s attention to relevant statistics and comparable cases.[39]
[38](2014) 253 CLR 58.
[39]Ibid [39].
In reply, the Director acknowledged that prosecutors should assist sentencing courts by providing references to comparable cases. He drew attention to his published policy entitled ‘The Crown’s Role on Plea and Sentence Hearings’.[40] We note that paragraph 64 of that policy states as follows:
[40]Director of Public Prosecutions Victoria, ‘The Crown’s Role on Plea and Sentence Hearings’, (Policy No 9, Office of the Director of Public Prosecutions, 13 April 2015) 64.
Plea submissions should ordinarily address the following matters:
• the statistical guideposts and key authorities identified above
•where the current offending stands in the scale of gravity for the relevant offence(s);
•the place where the offender’s personal mitigation and aggravation locates him or her by comparison to the other offenders sentenced for the offending;
•how the instant case compares to the median case;
•for the borderline prison/Community Corrections Order (‘CCO’) cases, whether the instant case compares to cases that went one way or the other; and
•the relationship of the instant case to specific cases identified as comparable cases.[41]
[41]Emphasis added.
The submission for RSJ also relied on the delay, which meant that he had gone ‘from a 23 year old youthful offender to 27 years old at the time of sentence’. Secondly, the submission relied on the more limited scope of RSJ’s offending. DM, it was pointed out, committed twice as many rapes as RSJ. The judge nevertheless concluded that this should only produce a ‘slight’ difference between their sentences. As a result, the total effective sentence imposed on DM was only 16 months longer than that imposed on RSJ, and the non-parole period only eight months longer.
According to the submission for RSJ:
In the context of this Crown appeal, it provides a sound basis for concluding that, were the Court satisfied that it should resentence DM and increase his sentences, it should nevertheless decline to interfere with the sentences imposed upon [RSJ].
Conclusion
We would uphold the Director’s submission that none of these matters should inhibit the Court from exercising its discretion to vary the sentences. Accordingly, the appeals will be allowed and the respondents resentenced.
In resentencing we have borne in mind the respondents’ youth and the other mitigatory circumstances that each was able to call upon. We have distinguished between the various charges of rape as their objective gravity increased, by fixing individual sentences proportionate to the degree of criminality involved. We have given anxious consideration to the need to ensure that the total effective sentence was no more than was necessary to reflect their total criminality, and accordingly have made only modest orders for cumulation.
DM committed five more rapes than RSJ. But, DM was only 20 years old at the time of offending, and he also had the benefit of the finding referred to in paragraph 110 above. Further, while DM must receive a longer term of imprisonment than RSJ, having regard to DM’s additional offending, it is to be remembered that the burden of serving a lengthy term of imprisonment increases exponentially rather than in a linear progression.
In the circumstances, the respondents will be resentenced as follows:
RSJ
Charge on Indictment
Offence
Maximum Penalties
Sentence
Cumulation
1
Rape
25y
7y
2m
2
Rape
25y
7y
2m
3
Rape
25y
8y 6m
Base
4
Rape
25y
8y 6m
3m
5
Rape
25y
8y 6m
4m
12
Sexual penetration of a child under 16
10y
5y
1m
Total Effective Sentence:
9y 6m
Non-Parole Period:
6y 6m
DM
Charge on Indictment
Offence
Maximum Penalties
Sentence
Cumulation
1
Rape
25y
7y
2m
2
Rape
25y
7y
2m
3
Rape
25y
8y 6m
3m
4
Rape
25y
8y 6m
3m
5
Rape
25y
8y 6m
4m
6
Rape
25y
9y
Base
7
Rape
25y
9y
6m
8
Rape
25y
9y
6m
9
Rape
25y
9y
6m
10
Rape
25y
9y
6m
Total Effective Sentence:
12y 2m
Non-Parole Period:
8y 9m
- - -
71
21
0