Lefoe v The King
[2024] VSCA 131
•13 June 2024
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2023 0094 |
| SHAHN LEFOE | Appellant |
| v | |
| THE KING | Respondent |
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| JUDGES: | McLEISH and NIALL JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 9 May 2024 |
| DATE OF JUDGMENT: | 13 June 2024 |
| MEDIUM NEUTRAL CITATION: | [2024] VSCA 131 |
| JUDGMENT APPEALED FROM: | [2023] VCC 379 (Judge Dalziel) |
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CRIMINAL LAW – Appeal – Sentence – Four charges of sexual penetration of child under 16 – Offending in quick succession on single occasion – Base sentence 5 years – Total effective sentence 8 years – Non-parole period 5 years and 6 months – Approximately 2 years and 8 months of immigration detention served before conviction – Whether total effective sentence manifestly excessive having regard to period of immigration detention – Sentence did not adequately reflect loss of liberty already suffered through immigration detention – Nature of offending did not warrant substantial cumulation – Appeal allowed – Total effective sentence 6 years and 6 months – Non-parole period 4 years.
Underwood v The Queen [No 2] [2018] VSCA 87, Sahhitanandan v The Queen [2019] VSCA 115, followed.
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| Counsel | |||
| Appellant: | Ms J McColl | ||
| Respondent | Mr R Gibson KC | ||
Solicitors | |||
| Appellant: | Victoria Legal Aid | ||
| Respondent | Ms A Hogan, Solicitor for Public Prosecutions | ||
MCLEISH JA
NIALL JA:
On 19 July 2022, a jury in the County Court found the appellant not guilty of one charge of sexual assault of a child under 16 and guilty of four charges of sexual penetration of a child under 16, contrary to s 49B(1) of the Crimes Act 1958. The plea was heard on 24 February 2023. On 9 March 2023 the appellant was sentenced as follows:
| Charge on indictment | Offence | Maximum penalty | Sentence | Cumulation |
| 2 | Sexual penetration of a child under 16 | 15 years | 5 years | 1 year |
| 3 | Sexual penetration of a child under 16 | 15 years | 5 years | 1 year |
| 4 | Sexual penetration of a child under 16 | 15 years | 4 years, 6 months | 1 year |
| 5 | Sexual penetration of a child under 16 | 15 years | 5 years | Base |
| Total effective sentence: | 8 years | |||
| Non-parole period: | 5 years 6 months | |||
| Pre-sentence detention declared: | 312 days[1] | |||
| Other relevant orders: 1. Sex offender registration for a period of 15 years | ||||
[1]The parties agreed that the correct figure was 313 days, and invited the Court to correct the orders of the County Court in this respect, even if the appeal were dismissed: Criminal Procedure Act 2009, s 325.
Circumstances of offending
The complainant was 12 years old. She was distantly related to the appellant[2] by marriage but she and the appellant had not previously met. She lived in New Zealand, and was visiting Australia with her grandmother at the time of the offending.
[2]The appellant was granted leave to appeal on the papers, on 30 August 2023.
On 3 August 2019, the complainant and her grandmother attended a family gathering. The appellant was aged 27 and lived at the address with his parents, partner and children.
Over the course of the afternoon and into the evening the adults largely socialised in an outdoor area at the back of the house and the children remained in the house.
At around 9.00 pm, the complainant was in the lounge room watching television with her 9-year-old cousin. The appellant briefly spoke with the complainant. She gave evidence that during this conversation she told the appellant she was 12 years old. The cousin did not support this evidence because she could not recall the complainant mentioning her age, and in fact believed the complainant to be 13 or 14 years old.
At about 9.50 pm, the complainant went outside the front of the house and smoked a cigarette. She was joined by the appellant, and at some point started making an audio recording on her phone. The complainant and the appellant had a cigarette together. The complainant said that the appellant grabbed or touched her vagina over her clothing at that time (charge 1). The jury acquitted the appellant of that charge.
The complainant said that the appellant then held her arm and took her to a nearby nature reserve. The appellant engaged in sexual intercourse with the complainant in the reserve, and was found guilty by the jury of four counts of sexual penetration of a child under 16. Two charges involved penile penetration of the complainant’s vagina, once while she was on her back (charge 2) and once when she was bent over forwards (charge 3). The appellant did not wear a condom, and ejaculated into the complainant’s vagina. The other two charges involved penile penetration of the complainant’s mouth (charges 4 and 5).
The recording made by the complainant was tendered in evidence at the trial and depicted the sounds of the appellant and the complainant engaging in sexual activity. The complainant gave evidence that the appellant had directed her to make noise to indicate that she was enjoying it, but that request could not be heard on the recording. The complainant could be heard making moaning noises and saying that she felt sick. The appellant could be heard telling her to ‘keep going’. The complainant could also be heard laughing and asking the appellant for ‘smokes’ during and after the sexual interaction.
At the conclusion of the sexual activity the appellant and the complainant shared a cigarette in the nature reserve. The appellant dressed and returned to the house ahead of the complainant. He jumped the fence of the property and went inside.
The complainant made her way back alone and rang the front doorbell. An adult relative answered the door and observed that the complainant was crying and distressed. The complainant went to the lounge room and told her young cousin that she had been raped.
The complainant then attempted to call her aunt in New Zealand. She messaged her aunt and said ‘I got raped’ and ‘help me’. The aunt spoke to the complainant and heard her crying.
Another woman who was at the house later heard the complainant crying in the bathroom. She knocked on the door and asked if the complainant was all right. A few minutes later the complainant told the woman that she had been raped by someone at the house.
The woman took the complainant to the outdoor area where the adults were, and the complainant pointed out the appellant as the offender.
The following day, the complainant told her grandmother what had happened, and the matter was reported to police.
On 6 August 2019, the appellant was arrested and interviewed. He told police that the complainant had been asking him for cannabis and that he had offered her a smoke. He said that the complainant told him she was 21 years old. He said that he believed the complainant was an adult by what she said, her appearance and how she behaved. He said that the complainant grabbed at his genitals and pulled her own pants down and that he then engaged in the sexual activity with her.
Immigration detention
The appellant was charged on 6 August 2019 and remanded in custody. He was a citizen of New Zealand, in Australia under a special category (subclass 444) visa. On 15 October 2019, the Department of Home Affairs served on him a notice of intention to consider cancellation of that visa under s 116 of the Migration Act 1958 (Cth), by reason of the charged offending.
On 24 October 2019, the appellant was granted bail. On 31 October 2019, his visa was cancelled and he was placed into immigration detention.
The appellant spent a period of 992 days (approximately two years and eight months) in immigration detention before he was found guilty and remanded in custody on 19 July 2022.
The conditions experienced by the appellant in immigration detention were not as restrictive or onerous as faced by a person on remand, but his movements and ability to engage in work or other activities were limited. This was made worse by the COVID-19 pandemic.
Due to COVID-19, in-person visits were suspended for 611 of the 992 days the appellant spent in detention, and he did not receive any in-person visits during his entire period in detention. From March 2020, detainees were unable to receive packages. Detainees were provided with $20 per week to call family and friends, but (in contrast to prisons) no videoconferencing facilities were provided. Because of the expense of calling New Zealand, the appellant was only able to speak to his family for a few minutes each day.
The appellant also experienced a total of 48 days of lockdowns, where he was confined to his compound within the detention centre, food was pre-packaged and he could not access educational or other programs. The appellant also claimed that programs were often suspended due to teacher unavailability.
Appellant’s personal circumstances
The appellant had a criminal history in New Zealand, with convictions for family violence, but none involving sexual offending.
The appellant had worked since the age of 10. His parents, two brothers and two friends provided references to the effect that he was family-orientated, hardworking and respectful. The appellant assisted his father with the care of one of his brothers, who had an acquired brain injury.
Forensic psychologist Naomi Cameron assessed the appellant as impressionable and emotionally naïve, with limited schooling and deficits in verbal comprehension. She regarded him as presenting a moderate risk of sexual re-offending.
Neuropsychologist Laura Scott assessed the appellant as having a full scale IQ of 79, falling in the borderline range, but considered that his low cognitive functioning did not prevent him from understanding the wrongfulness of his actions. He demonstrated a lack of understanding or remorse in relation to his offending, which Ms Scott was unable to attribute to any significant cognitive impairment.
Sentencing remarks
The judge found that the appellant had a concerning lack of insight into his behaviour. His explanation for the offending, in which he attributed responsibility for initiating the sexual encounter to the complainant, effectively reversed the roles of instigator and victim.[3]
[3]DPP v Lefoe [2023] VCC 379 [48] (Judge Dalziel) (‘Sentencing Remarks’).
The judge noted that the complainant was 12 years old and in a place where she had not been before. She found that it was clearly untenable that the appellant thought that the complainant was 21 years old, based upon her appearance at the time, which was established by a video that was in evidence and by the VARE. The judge found that the suggestion that the complainant had been sexually aggressive towards the appellant, whom she had never met before, was farcical and that her distress afterwards was wholly consistent with unexpected and unwelcome sexual activity such as she described.[4]
[4]Ibid [50].
The judge also found that the appellant was ‘sufficiently obtuse’ that he might not have appreciated that the complainant did not want to engage in sexual activity. The judge did not, however, find that the appellant believed that the complainant was consenting.[5]
[5]Ibid [51].
The judge took account of a list of matters which were relevant to assessing the gravity of the offending, as follows:
(a) The victim was 12, you were 27;
(b) Although you may not have appreciated that the victim was only 12, by their verdict the jury found that you were aware she was under 16, or that you did not believe on reasonable grounds that she was 16 or more;
(c) The offending was opportunistic. You came across this young female in your own home, you removed her from that environment, to a dark nature reserve, and sexually penetrated her four times;
(d) You persisted with asking her to suck your penis even after she said she was tired;
(e) You directed her to lick your ejaculate;
(f) You did not wear a condom, and you ejaculated in her vagina; and
(g) In addition to the penetrations you licked the victim’s face, something she found very upsetting.[6]
[6]Ibid [52].
The judge found that the gravity of the offending was ‘at the upper end of the middle range of offending for this type’.[7]
[7]Ibid [72].
The judge took into account that the matter had been hanging over the appellant’s head for some time, causing him considerable and worry. Nearly three years had passed between the appellant’s police interview and the trial. [8]
[8]Ibid [60].
In addition, the judge found that the 992 days or two years and eight months which the appellant had spent in immigration detention was a ‘very significant factor in mitigation’ which was to be taken into account in a ‘broad and practical way’.[9]
[9]Ibid [62], citing Underwood v The Queen [No 2] [2018] VSCA 87 [37] (Priest and McLeish JJA) (‘Underwood’) and Sahhitanandan v The Queen [2019] VSCA 115 [34] (Priest, McLeish and Weinberg JJA) (‘Sahhitanandan’).
The judge accepted that there was a real likelihood that the appellant would be deported after his sentence was finished. She found that his concern about that risk meant that the sentence should be mitigated to a small degree. The judge noted, however, that the appellant’s children and most of his family lived in New Zealand and that he had lived there himself for most of his life.[10]
[10]Sentencing Remarks [64].
The judge regarded general deterrence, just punishment and denunciation of the offending as significant sentencing considerations.[11] She gave specific deterrence ‘more than a little weight’, and accepted Ms Cameron’s opinion that the appellant presented a moderate risk of sexual reoffending.[12] The judge said that his ‘attitude towards sexual activity [was] somewhat concerning’, as was his lack of insight into the present offending.[13]
[11]Ibid [68].
[12]Ibid [69].
[13]Ibid.
Finally, the judge referred to the standard sentence of six years’ imprisonment for the relevant offences[14] and the requirement that the appellant be sentenced as a serious sexual offender in respect of the third and fourth acts of penetration.[15] She acknowledged, however, the need for the total sentence to be in keeping with the totality of the offending, indicating in this respect that she would take account of the fact that each of the charges occurred close in time to the others.[16]
[14]Crimes Act 1958, s 49B(3).
[15]Sentencing Act 1991, ss 6B(2)–(3), 6D.
[16]Sentencing Remarks [66], [71], [74].
Appellant’s submissions
The appellant appeals against the sentences imposed on the grounds that the orders for cumulation failed to give sufficient weight to the principle of totality, resulting in a total effective sentence and a non-parole period which are manifestly excessive.
The appellant accepts that cumulation orders cannot normally be assessed in isolation, and that they are excessive if they produce a total effective sentence which is excessive.[17]
[17]Pasinis v The Queen [2014] VSCA 97 [50] (Neave JA and Kyrou AJA).
The appellant also accepts that, viewed in isolation, the individual sentences of five years or, in one case, four years and six months might appear relatively moderate, so as to justify a greater degree of cumulation. However, he submits that the fact that he had spent 992 days in immigration detention before trial, which could not be credited as pre-sentence detention under s 18(1) of the Sentencing Act 1991, meant that the judge was obliged to moderate the individual sentences. It is submitted that the credit applied was required to be very substantial, given that the appellant was in immigration detention as a result of the cancellation of his visa by reason only of the pending criminal charges against him, and because the conditions experienced by the appellant in immigration detention were substantially similar to those experienced in prison, especially during the COVID-19 pandemic.
The appellant submits that the total effective sentence needed to reflect the fact that the four offences had all taken place in quick succession in a short space of time.
In summary, the appellant submits that, even if only two years (for example) of the period spent in immigration detention was notionally added to the sentence imposed, the sentence for each of the offences would be seven years’ imprisonment (or in one case, six years and six months). When a further three years was added to this period by way of cumulation, a sentence of 10 years’ imprisonment on all the charges would be the notional result. The appellant submits that this demonstrates that the sentences imposed had been manifestly excessive.
Respondent’s submissions
The respondent accepts that, if the entire period of immigration detention were notionally added to the sentence, then it would be ‘approaching manifest excess’. The respondent also accepts that, given that the four acts of sexual penetration occurred in quick succession over a matter of minutes, a head sentence in the order of nearly 11 years would be too high for the offending, even after a trial, bearing in mind current sentencing practice for standard sentences for this offence and the fact that the appellant had no prior convictions for sexual offending. The respondent submits, however, that it is plain that the judge correctly approached the issue of immigration detention. It is submitted that the authorities do not call for a strictly mathematical approach when applying credit for time spent in immigration detention.
The respondent submits that, apart from the time spent in immigration detention and the delay in resolving the matter, the appellant has little to call upon in mitigation. He was not a youthful offender, and he could not take the benefit of a guilty plea. He has demonstrated a lack of insight into his offending, including by blaming the complainant for what took place. The respondent notes the assessment of Ms Cameron, accepted by the judge, that the appellant is at moderate risk of sexual reoffending.
The respondent submits that each of the sentences imposed was modest when regard is had to the gravity of the offending, the fact that the matter was contested and the standard sentence of six years.
The respondent submits that, if not for the immigration detention, the sentences could have been substantially higher and still within range. It is submitted that the ‘compressive effect of totality’ has been afforded sufficient weight in the sentencing exercise.
In oral submissions, the respondent identified the features of the offending which were said to make this a very grave example of the offence. The offending had been opportunistic, if not predatory, and the difference in age was large (27 as against 12 years of age). The complainant was a very young child and the appellant was a married man with children. There was little he could call on by way of mitigation, having had a happy childhood and a long work history. The offending took place while the complainant was attending a function as a guest in the appellant’s home. He led her away at night, had unprotected intercourse with her and then left her in the reserve where the offences had taken place. The offending had aggravating features, including ejaculation into the complainant’s vagina without a condom and the humiliating direction that the complainant lick the appellant’s ejaculate. The appellant was unable to call on any of the Verdins considerations or any pre-existing mental health concerns.[18]
[18]Verdins v The Queen (2007) 16 VR 269, 276 [32] (Maxwell P, Buchanan and Vincent JJA).
The respondent submits that there is a difference between immigration detention and prison. In particular, because the appellant was not classified as a prisoner while in immigration detention, the odium of that designation was not attached to him.
Consideration
In our view, if it were not for the immigration detention of the appellant, no complaint could be made about the sentences imposed in this case. Each of the sentences was below the standard sentence for sexual penetration of a child under 16 and the total effective sentence of eight years’ imprisonment reflects the gravity of the offending as well as the limited nature of the matters in mitigation upon which the appellant could rely.
The principles for dealing with immigration detention for sentencing purposes were set out by this Court in Underwood and Sahhitanandan. Having identified that the fact of a period spent in immigration detention was required to be recognised in a ‘broad and practical way’ in the sentence imposed, reflecting the fact that the offender has been deprived of his or her liberty during the relevant period,[19] the Court in Sahhitanandan referred to Akoka v The Queen,[20] concerning time spent in a residential rehabilitation facility,[21] and continued:
Several aspects of this reasoning are applicable to the case of immigration detention. First, the extent of the credit will depend on the circumstances of each case, including the nature and severity of the restrictions to which an offender has been subject and the duration of the detention. Secondly, the period of detention must post-date the commission of the offence for which the offender is being sentenced. Thirdly, the credit will form part of the application of the instinctive synthesis without being numerically identified. Fourthly, however, the sentencing judge should clearly explain what weight has been given to a period of immigration detention. It is important that this be done in order to explain what might otherwise appear to be an unduly low sentence.
This Court in Renzella stated that a sentencing court is obliged to take pre-sentence detention into account as a matter of justice. It is plain from the Court’s treatment of the issue in Akoka that the underlying rationale for taking into account any form of restriction on liberty as a result of the offending is, again, the avoidance of double punishment. Addressing that issue will involve questions of fact and degree.
Unlike time spent in a residential facility, immigration detention is time spent in custody. On the other hand, unlike residency at a rehabilitation facility, no part of the purpose of immigration detention is punitive. This may mean that in practice the burden of immigration detention is less onerous than the burden of incarceration in a prison. However, again, each case will depend upon its circumstances.[22]
[19]Sahhitanandan [2019] VSCA 115 [32] (Priest, McLeish and Weinberg JJA).
[20][2017] VSCA 214 [109]–[112] (Warren CJ, Kyrou and Redlich JJA).
[21]Sahhitanandan [2019] VSCA 115 [33] (Priest, McLeish and Weinberg JJA).
[22]Sahhitanandan [2019] VSCA 115 [34]–[36] (Priest, McLeish and Weinberg JJA) (citations omitted).
In the present case, there was evidence before the sentencing judge as to the nature of the burden of immigration detention. That material makes it clear that immigration detention in this case was less onerous than prison, notwithstanding the impact of the COVID-19 pandemic. Among other things, detainees had access to computers at all times and could access the internet (subject to restrictions). They also had access to personal mobile devices as well as landlines. Nonetheless, the appellant was deprived of his liberty on the basis that he had been charged with the present offending for a period in excess of two years and eight months. As the judge said, this was a very significant matter to be taken into account when sentencing him.
This factor needed to be taken into account in a way that adequately reflected the loss of liberty which the appellant had already suffered before he came to be sentenced. We do not consider that a total effective sentence of eight years’ imprisonment achieves that result. 992 days is a very substantial period to spend in detention. It is also significant that the offences in this case took place in quick succession on a single occasion. This was not offending that leant itself to substantial periods of cumulation, even in respect of those offences for which the appellant was sentenced as a serious sexual offender; the latter consideration must still take account of the principle of totality.[23]
[23]See, eg, DPP v Bales [2015] VSCA 261 [44] (Osborn, Kaye and McLeish JJA).
While the exercise is not a mathematical one, when substantial account is taken of the time spent in immigration detention, these considerations combine in our opinion to show that the total effective sentence imposed was manifestly excessive.
In our view, taking all relevant matters into account, including the standard sentence of six years, it is appropriate to reduce the orders for cumulation in each instance from one year to six months. The result is a total effective sentence of six years and six months’ imprisonment.[24] We would impose a non-parole period of four years.
[24]We take into account, for the purpose of resentencing, the fact that the appellant has served his sentence in a protection unit since 22 August 2022.
Conclusion
The appeal will be allowed and the appellant will be resentenced on the basis set out above.
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