Lawrence (a pseudonym) v The Queen
[2021] VSCA 291
•27 October 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0193
| JOHN LAWRENCE (a pseudonym)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]These reasons have been anonymised to avoid the risk of identifying the victim of sexual offending.
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| JUDGES: | PRIEST and T FORREST JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 20 October 2021 |
| DATE OF JUDGMENT: | 27 October 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 291 |
| JUDGMENT APPEALED FROM: | DPP v Lawrence(a pseudonym) [2020] VCC 1167 (Judge Tinney) |
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CRIMINAL LAW — Appeal — Sentence — Digital rape of sleeping victim — Whether sentence of eight years and six months’ imprisonment manifestly excessive — Whether cumulation ordered on interstate sentence infringed totality principle — Leave to appeal granted — Appeal allowed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant: | Mr P J Smallwood and Mr C Grant | Doogue + George Defence Lawyers |
| For the Respondent: | Ms S Clancy | Ms A Hogan, Solicitor for Public Prosecutions |
PRIEST JA
T FORREST JA:
On 11 May 2018, a judge of the District Court of NSW sentenced the applicant to an aggregate sentence of 13 years and eight months’ imprisonment, with a non-parole period of 10 years and three months’ imprisonment, for two offences involving the digital penetration of the vagina of the applicant’s nine month old daughter (‘the District Court sentence’). An appeal against that sentence was dismissed by the Court of Criminal Appeal (NSW) on 12 May 2020.[2]
[2]WM v The Queen [2020] NSWCCA 96 (‘WM’).
The present application concerns a sentence for rape imposed upon the applicant by the County Court on 31 July 2020, at a time when the applicant was serving the District Court sentence in Victoria pursuant to the provisions of the Prisoners (Interstate Transfer) Act 1983 (‘PIT Act’).
So far as relevant, ss 27 and 28 of the PIT Act provide:
27 Sentence deemed to have been imposed in this State
(1) Where under an interstate law an order is issued for the transfer to Victoria of a person imprisoned in a participating State and the person is brought into Victoria pursuant to the order, then from the time the person arrives in Victoria—
(a) any State sentence of imprisonment (as defined in the interstate law of the participating State) imposed on the person by a court of the participating State and any sentence of imprisonment deemed by the provision of an interstate law that corresponds to this section to have been imposed by a court of the participating State shall be deemed to have been imposed on the person; and
(b) any direction or order given or made by a court of the participating State with respect to when any such State sentence of imprisonment shall commence shall, so far as practicable, be deemed to have been given or made—
by a corresponding court of Victoria and, except as otherwise provided in this Act, shall be given effect to in Victoria, and the laws of Victoria shall apply, as if such a court had had power to impose the sentence and give or make the direction or order, if any, and did in fact impose the sentence and give or make the direction or order, if any.
...
28 Provisions relating to translated sentences
(1) Where under a law of a participating State there has been fixed by a court in respect of a translated sentence[[3]] a non-parole period (being a shorter period than the translated sentence), during which non-parole period the person subject to the sentence is not eligible to be released on parole, then, except as otherwise provided in this Act, that non-parole period shall be deemed likewise to have been fixed by the corresponding court of Victoria.
…
[3]Section 4 defines a translated sentence to be ‘a sentence of imprisonment deemed by section 27 to have been imposed on a person by a court of Victoria’.
On 3 March 2021, the applicant pleaded guilty in the County Court to the digital-vaginal rape[4] of a sleeping adult female, ‘SL’. Following a plea, on 31 July 2021 the judge sentenced the applicant to eight years and six months’ imprisonment, and ordered that five years and six months of the sentence be served cumulatively with the sentence being undergone (leading to a new global total effective sentence). As permitted by s 14 of the Sentencing Act 1991 and s 28 of the PIT Act, the judge fixed a new global non-parole period. The sentence may conveniently be summarised in the following table:
[4]Crimes Act 1958 (as amended by the Crimes Amendment (Sexual Offences and Other Matters) Act 2014), s 38(1). The maximum sentence is 25 years’ imprisonment.
Charge Offence Sentence 1 Rape 8 years and 6 months Total effective sentence 8 years and 6 months’ imprisonment Cumulation on District Court sentence 5 years and 6 months New global total effective sentence 19 years and 2 month’ imprisonment New global non-parole period 15 years and 3 months Section 6AAA declaration 11 years and 6 months’ imprisonment, with non-parole period of 8 years and 6 months, cumulated on the sentence of 11 May 2018, leading to a global total effective sentence of 22 years and 2 months, with a new global non-parole period of 18 years and 3 months Other orders Sentenced as a serious sexual offender pursuant to s 6F of the Sentencing Act 1991; confiscation (computers).
The applicant now seeks leave to appeal on two grounds:
1. The sentence, the order for cumulation and the new single non-parole period are manifestly excessive.
2. The learned sentencing judge misapplied the totality principle.
For the reasons that follow, we would grant leave to appeal, allow the appeal and resentence the applicant in the manner set out below.[5]
[5]At [29].
The offending
In 2015, the applicant lived with his male partner, ‘N’, in a flat in a north-eastern Melbourne suburb. His daughter lived with her mother in NSW.
In October 2015, SL moved into the applicant’s flat to ‘house-sit’ while the applicant and N went on holiday. Prior to leaving, both the applicant and N had consensual penile-vaginal sex with SL.
On or about 15 November 2015, while SL was sleeping in the lounge room of the applicant’s flat, the applicant stripped her naked. He then removed his own clothes, reclined next to SL and performed sexual acts on her as she slept. The applicant licked SL’s left breast before using his fingers to pinch her vagina. He then digitally penetrated SL’s vagina with his right middle finger, inserting it to the second knuckle. Whilst doing so, the applicant masturbated himself with his left hand. SL did not wake during the offending. When she did wake, she was dressed and was oblivious to what had taken place.
Shortly afterwards, the applicant and N left for their holiday, returning a week or 10 days later. SL vacated the residence on 28 November 2015, upon their return.
Police executed a search warrant on the applicant’s flat on 17 May 2016. He was arrested, but declined to be interviewed. An examination of one of the laptop computers used by the applicant and N located images of the applicant lying naked next to SL — who was sleeping — licking her left breast, and pinching and digitally penetrating her vagina whilst he masturbated.
The examination of the laptop also led to the applicant’s detection for the two offences against his daughter, for which he received the District Court sentence. Those crimes had occurred in April 2015, and had been photographed by N. The first count for which he was sentenced — based on joint criminal enterprise — involved N penetrating the inner aspect of the labia majora of the infant victim with his thumb; and the second count involved the applicant penetrating the outer lips of his daughter’s genitalia with his fingers.[6]
[6]WM, [8].
Applicant’s submissions
In support of the contention that the sentence is manifestly excessive, the applicant’s counsel submitted that the circumstances of the offence of rape vary widely. Albeit that the instant case was serious, many cases of rape are objectively more serious. There were few features in the applicant’s offending, counsel submitted, that typically are taken into account in assessing the objective gravity of the offence of rape in any given case.
In the present case, counsel submitted, although the sentencing judge was entitled to take into account that the applicant’s offending occurred in another’s presence, the complainant was not aware of that fact; the physical interference with the complainant was of comparatively limited duration; the complainant did not experience a protracted physical or psychological ordeal (being unaware of the offence until contacted by police); the penetration was of a kind that did not risk infection or pregnancy; the offence did not cause pain or injury, and did not involve the degradation or humiliation of the complainant apart from the penetration itself; the penetration was not of a kind that was said to be particularly abhorrent to the complainant or to which she had a strong moral aversion; the offence did not involve violence or threat of violence, and had not involved the stalking, abduction or imprisonment of the complainant, or the invasion of her home; and the offence was not committed in the context of a relationship involving a pattern of coercive behaviour, domination or humiliation of the complainant against the backdrop of an imbalance of power.
Further, the applicant was aged 49 years at the time of offending (and 54 at the time of sentence), and had no relevant prior convictions. He had pleaded guilty early, counsel submitted, and there was some evidence of remorse. His offending had occurred in the context of his relationship with N, he having previously led a hard-working and law-abiding life. The judge had found his prospects of rehabilitation to be ‘reasonable’.
Moreover, relying on Samuels,[7] Perryman,[8] Smith,[9] Granata,[10] Johns,[11] Zhao,[12] Bolton,[13] Lian,[14] Cao,[15] Mokhtari[16] and Matheas,[17] counsel submitted that the sentence imposed ‘does not sit comfortably within current sentencing practices for the offence of rape’. Citing Mulligan,[18] Forbes,[19] Turner,[20] Macarthur,[21] Shrestha,[22] Flynn,[23] Di Giorgio,[24] Li,[25] Pate,[26] Henson,[27] Wheeldon,[28] Underwood,[29] Gutierrez,[30] Inia,[31] Gul,[32] Cooper[33] and Bullmore,[34] counsel submitted that cases of far greater objective seriousness commonly attracted sentences of far greater leniency. Indeed, so counsel submitted, offences of rape committed against sleeping, heavily intoxicated or unconscious victims — where no violence or weapons are used — have been consistently dealt with by substantially shorter sentences than that imposed on the applicant. Examples are McInnes,[35] Davis,[36] Van Der Zant,[37] Coronado,[38] Anderson,[39] Ali,[40] Kalofolias[41] and Singh.[42]
[7]Samuels (a pseudonym) v The Queen [2018] VSCA 251.
[8]Perryman v The Queen [2019] VSCA 252.
[9]DPP v Smith [2019] VSCA 266.
[10]DPP v Granata [2016] VSCA 190.
[11]Johns (a pseudonym) v The Queen [2016] VSCA 97.
[12]Zhao v The Queen [2018] VSCA 267.
[13]Bolton v The Queen [2019] VSCA 21.
[14]DPP v Za Lian [2019] VSCA 75.
[15]Cao v The Queen [2018] VSCA 98.
[16]DPP v Mokhtari [2020] VSCA 161.
[17]Matheas v The Queen [2017] VSCA 330.
[18]Mulligan (a pseudonym) v The Queen [2017] VSCA 94.
[19]Forbes (a pseudonym) v The Queen [2018] VSCA 341.
[20]Turner (a pseudonym) v The Queen (No 2) [2018] VSCA 181.
[21]DPP v Macarthur [2019] VSCA 71.
[22]Shrestha v The Queen [2017] VSCA 364.
[23]Flynn v The Queen [2020] VSCA 173 (‘Flynn’).
[24]Di Giorgio v The Queen [2016] VSCA 335.
[25]Li (a pseudonym) v The Queen [2020] VSCA 168.
[26]Pate (a pseudonym) v The Queen [2019] VSCA 170.
[27]Henson (a pseudonym) v The Queen [2018] VSCA 283.
[28]Wheeldon v The Queen [2018] VSCA 344.
[29]Underwood (a pseudonym) v The Queen (No 2) [2018] VSCA 87.
[30]Gutierrez v The Queen [2018] VSCA 270.
[31]Inia v The Queen [2017] VSCA 49.
[32]Gul v The Queen [2017] VSCA 153.
[33]DPP v Cooper [2017] VSCA 8.
[34]Bullmore v The Queen [2017] VSCA 41.
[35]DPP v McInnes [2017] VSCA 374.
[36]DPP v Davis [2017] VSCA 341.
[37]Van Der Zant v The Queen [2016] VSCA 138.
[38]Coronado v The Queen [2016] VSCA 86.
[39]Anderson v The Queen [2013] VSCA 138.
[40]Ali v The Queen [2013] VSCA 294.
[41]Kalofolias v The Queen [2017] VSCA 308.
[42]Singh v The Queen [2014] VSCA 250.
With respect to the issue of totality, the applicant’s counsel submitted that, having regard to the applicant’s age, the avoidance of a crushing sentence was an important sentencing consideration; and in particular, the new global non-parole period should not deprive him of all hope of a meaningful working life after release. The increment of five years to his non-parole period — producing a new single non-parole period of 15 years and three months — results in the applicant not being eligible for release on parole until the age of 65. That result is crushing, in a way that indicates a misapplication of the totality principle.
The respondent’s submissions
Counsel for the respondent submitted that the applicant fell to be sentenced for a serious example of an inherently serious offence.[43] By virtue of his previous sexual offending against his nine month old daughter, he also fell to be sentenced as a serious sexual offender. Balanced against those considerations, counsel submitted, the applicant had limited matters in mitigation.
[43]DPP v Mokhtari [2020] VSCA 161, [41].
Aggravating features of the offending included a degree of planning; raping the complainant in company; posing for photographs; degrading and humiliating the complainant; the complainant’s vulnerability while sleeping; and breaching the complainant’s trust. The respondent’s counsel submitted that, when regard is had to the objective seriousness of this offending; the limited matters in mitigation; and that the applicant fell to be sentenced as a serious sexual offender, it cannot be said that the sentence was wholly outside the range.
As to totality, the respondent’s counsel submitted that the judge’s conclusion that the applicant’s overall criminality was very high was inescapable. Absent the serious offender provisions, a significant degree of cumulation would still be required. The judge was clearly mindful to avoid imposing a crushing sentence. There was no evidence that the applicant was in poor health such that an earliest possible release date at the age of 65 years would deprive him of all hope of a useful life after release.
Discussion
By virtue of s 38(1) of the Crimes Act 1958, there is but one offence of rape, which may be committed in a variety of ways.[44] As the cases demonstrate, the crime of rape covers a very wide spectrum of different activities carried out in a wide variety of circumstances of differing degrees of objective gravity. Hence, a sentence that is clearly just and proportionate in one instance of rape will be manifestly excessive — or, indeed, manifestly inadequate — in another.[45]
[44]See s 35A(1), which sets out the various ways in which a person may sexually penetrate another.
[45]R v Simon [2010] VSCA 66, [60] (Bongiorno JA).
But no matter the manner of its commission, the maximum penalty of 25 years’ imprisonment for rape is reserved for the worst class of case.[46] The provision of the same maximum penalty for rape — however committed — cannot carry with it the necessary implication that, divorced from its surrounding circumstances, one form of penetration must be punished in the same way as another. Self-evidently, the sentence for rape in any given case must turn on an individual consideration of the circumstances and features of the particular offence (and of the offender). So much was made clear in Ibbs,[47] a case of sexual penetration without consent, where the relevant statute embraced different forms of sexual penetration. In allowing an appeal from the Court of Criminal Appeal (WA), the High Court said:[48]
Although … the judgments in this case suggest that the particular facts of each case are to be disregarded, the judgments appear to adopt as a sentencing principle the proposition that, ‘divorced from the circumstances’,[49] each kind of sexual penetration as defined in s 324F [of the Criminal Code (WA)] is neither more nor less heinous than another. That proposition cannot be accepted. The maximum penalty prescribed for the offence of sexual assault is reserved for the worst type of case falling within s 324D: Reg v Tait and Bartley;[50] Bensegger v The Queen.[51] The maximum penalty is not prescribed as an appropriate penalty for the worst type of case falling within each of the respective categories of sexual penetration described in s 324F. The inclusion of several categories of sexual penetration within the offence described as sexual assault carries no implication that each category of sexual penetration is as heinous as another if done without consent. When an offence is defined to include any of several categories of conduct, the heinousness of the conduct in a particular case depends not on the statute defining the offence but on the facts of the case. In a case of sexual assault, a sentencing judge has to consider where the facts of the particular case lie in a spectrum at one end of which lies the worst type of sexual assault perpetrated by any act which constitutes sexual penetration as defined.
[46]R v Kilic (2016) 259 CLR 256, 265–6 [25]–[26] (Bell, Gageler, Keane, Nettle and Gordon JJ).
[47]Ibbs v The Queen (1987) 163 CLR 447.
[48]Ibid 451–2 (Mason CJ, Wilson, Brennan, Toohey and Gaudron JJ) (citations as in original).
[49][R v Ginder] (1987) 23 A Crim R, at p 4.
[50](1979) 46 FLR 386, at p 398; 24 ALR 473, at p 484.
[51][1979] WAR 65, at p 68.
One finds statements in the cases suggesting that digital rape is not necessarily less serious than penile rape.[52] Hence, in Brown it was observed:[53]
The suggestion that digital rape falls at the lower end of the scale applicable to that crime has been rejected by this court in R v Schubert[54] and in R v Sheriff.[55] The offence of digital rape is considered by Parliament to be just as serious as penile rape given that it has imposed the same maximum penalty of 25 years’ imprisonment for the offence. Clearly, both digital and penile rape are inherently violent acts which the community will not tolerate and, even without accompanying violence, digital rape, as an offence, cannot be treated as a less serious offence than penile rape. The gravity of the offending — whether it be digital or penile rape — will, of course, depend on the particular circumstances of the case. As Tadgell JA said of digital rape unaccompanied by violence[56] in Sheriff: ‘[A] very clear message ought to be sent to the community that a digital rape of this kind is intolerable in a civilised society’. With respect, I entirely agree with that view and it seems to me that the distinction which counsel for the applicant sought to draw is wholly without foundation.
[52]R v Sheriff (Unreported, 19 March 1998, Vic, CA); R v Schubert [1999] VSCA 25; R v Brown (2002) 5 VR 463 (‘Brown’); DPP v Fellows [2002] VSCA 58; Flynn.
[53]Brown, 478 [59] (Chernov and Eames JJA and O’Bryan AJA agreeing) (citations as in original).
[54][1999] VSCA 25 at [11] per Brooking JA and [19] per Winneke P.
[55]Unreported, Court of Appeal, 19 March 1998 per Tadgell JA at 12 with whom Callaway and Buchanan JJA agreed.
[56]At 12. See also Schubert.
As Brown emphasises, however, the objective gravity of the offending must always depend upon the individual circumstances of the case.[57] In the present case, many of the features which are often seen to aggravate the offence were absent. Certainly, there was no risk of pregnancy, and the risk of transmitted infection was reduced.
[57]See also Flynn, [89]. And see generally, DPP v Dalgliesh (2017) 262 CLR 428 (‘Dalgliesh’).
In considering the issue raised in this application, we have had regard to the ‘comparable’ sentencing cases (so called) referred to by counsel for the applicant in their very thorough written (and oral) submissions. Bearing in mind the admonition of the High Court in Dalgliesh that comparable cases, while relevant to indicate or reveal the sentencing range for an offence, are nevertheless but one factor to be taken into account in the exercise of the sentencing discretion;[58] and that comparable cases are not precedents, and in the context of sentencing, no two cases can be alike; and reminding ourselves also that we live in a time of rising sentences, we consider that some guidance as to the range of appropriate sentences may nonetheless be derived from Hasan.[59]
[58]Dalgliesh, 434 [9] (Kiefel CJ, Bell and Keane JJA).
[59]Hasan v The Queen (2010) 31 VR 28 (Maxwell, Redlich and Harper JJA) (‘Hasan’).
In Hasan, the applicant pleaded guilty to one count of rape. When he committed the offence, the offender had been drinking. He penetrated the sleeping female complainant’s vagina with his penis whilst not wearing a condom, and ejaculated inside her. While on bail the offender had left Australia in breach of his bail conditions returning more than two years later. He received a sentence of six years’ imprisonment for the rape. This Court set aside that sentence, and instead imposed a sentence of four years’ imprisonment. In the course of its reasons — we bear steadily in mind that the Court’s observations were made pre-Dalgliesh — the Court said:[60]
[60]Ibid 41–2 [55]–[57] (citations as in original).
As the court pointed out in CPD,[61] the ascertainment of current sentencing practice will usually require a consideration of comparable cases, balanced against a keen appreciation of the necessity to do justice in the particular case. These cases provide an important, though limited, guide to the range of sentences reasonably open to the sentencing judge.[62] We were accordingly assisted by the appellant having pointed to a number of cases said to be comparable, in which — as here — the victim was raped while asleep.[63]
[61](2009) 22 VR 533 at 552, [77]–[78].
[62]Hudson v R (2010) 30 VR 610.
[63]Nous v R (2010) 26 VR 96; Director of Public Prosecutions v Sibanda [2010] VCC 605; Coulson v R [2010] VSCA 146; Simon v R [2010] VSCA 66; R v Yankovski (2007) 17 VR 315.
Consideration of those cases, and of sentencing practice for the offence of rape as discussed in cases such as Director of Public Prosecutions v Maynard,[64] Director of Public Prosecutions v Patterson[65] and Director of Public Prosecutions v Moses,[66] reveals that this sentence was outside the range reasonably open to the sentencing judge dealing with this offender for this offence. Other decisions of this court further illustrate the point.[67] …
The cases are as follows:
•Nous v R.[68] The victim awoke to find the defendant penetrating her vagina with his tongue. The defendant was convicted of rape after a trial and sentenced to four years’ imprisonment with a non-parole period of two years.
• Director of Public Prosecutions v Sibanda.[69] The victim awoke to find the defendant penetrating her vagina with his penis. He had ejaculated. He was convicted of rape after a trial and sentenced to six years’ imprisonment, with a non-parole period of three years and six months. Like the present appellant, the offender had no prior convictions and had excellent prospects of rehabilitation. The judge found that he had taken advantage of a ‘particularly vulnerable’ victim, and his conduct had created the anxiety of sexually transmitted diseases.
• Coulson v R.[70] The defendant digitally penetrated the victim while she was asleep. After a trial he was convicted of rape and sentenced to three and a half years’ imprisonment, with a non-parole period of one year and three months.
• Simon v R.[71] The victim woke up to find the defendant penetrating her vagina with his finger. The defendant was convicted on two counts of digital rape, following a trial, and sentenced to four years’ imprisonment on each count. On appeal, those sentences were held to be manifestly excessive and sentence was reduced to three years on each count. The court[72] referred to the fact that the offender had been intoxicated and said:[73]
Alcohol, though not a circumstance of mitigation, seems likely to explain the applicant’s behaviour on this occasion, which was quite out of character.
• In R v Yankovski,[74] there was once again penetration of the victim while she was asleep. The offender was convicted, after a trial, of one count of rape and was sentenced to five years’ imprisonment with a non-parole period of three years.
[64][2009] VSCA 129.
[65][2009] VSCA 222.
[66][2009] VSCA 274.
[67]R v Schubert [1999] VSCA 25; R v Brown (2002) 5 VR 463; R v Mason [2001] VSCA 62; Director of Public Prosecutions v Fellows [2002] VSCA 58.
[68](2010) 26 VR 96.
[69][2010] VCC 605.
[70][2010] VSCA 146.
[71][2010] VSCA 66.
[72]Ashley JA (with whom Bongiorno and Harper JJA agreed).
[73]At [55].
[74](2007) 17 VR 315.
Given the applicant’s ‘early guilty plea’, his remorse (albeit ‘limited’), his lack of prior convictions and his ‘reasonable’ prospects of rehabilitation, and having regard to the particular circumstances of the offending — which, as we have indicated, does not carry with it many of the features that aggravate the offence of rape — we have concluded that the sentence of eight years and six months’ imprisonment imposed by the judge in this case on the charge of rape is wholly outside the range open in the sound exercise of the sentencing discretion. It must therefore be set aside. We would in its stead impose a sentence of five years and six months’ imprisonment on that charge.
As part of the overall resentencing exercise, we must consider the question of cumulation and consider afresh the issue of totality. In so doing, we must endeavour notionally to approach the sentencing exercise as if we were imposing the sentence for rape at the same time as the District Court sentence. The artificiality of that task is plain. It is also important that we do not permit any visceral response to the applicant’s rebarbative offending against his daughter to swamp all other considerations and skew unduly the exercise of the sentencing discretion.
Balancing, as best we are able, all relevant factors, we would sentence the applicant as a serious sexual offender and order that three years and two months of that sentence on the charge of rape be served concurrently with the District Court sentence of 13 years and eight months’ imprisonment[75] (in practical terms effecting cumulation of two years and four months). The notional total effective sentence will thus be 16 years imprisonment. We would fix a new global non-parole period of 12 years. Our intention is reflected in the following table:
[75]See Sentencing Act 1991, s 6.
Charge Offence Sentence 1 Rape 5 years and 6 months Total effective sentence 5 years and 6 months’ imprisonment Cumulation on District Court sentence 2 years and 4 months New global total effective sentence 16 years’ imprisonment New global non-parole period 12 years
We would confirm all other orders of the County Court.
Pursuant to s 6AAA of the Sentencing Act 1991, we would declare that, but for his plea of guilty, we would have sentenced the applicant to be imprisoned for eight years, and ordered that four years of the sentence be served cumulatively on the District Court sentence.
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