Luke Durham v The Queen
[2019] VSCA 176
•14 August 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0268
| LUKE DURHAM | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | EMERTON JA and LASRY AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 31 July 2019 |
| DATE OF JUDGMENT: | 14 August 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 176 |
| JUDGMENT APPEALED FROM: | DPP v Durham [2016] VCC 1974 |
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CRIMINAL LAW – Appeal – Sentence – Rape – Sexual assault – Intellectual disability –Sentence following revocation of Residential Treatment Order – Whether time spent in secure residential facility considered in sentencing – Whether sentence manifestly excessive – Appeal dismissed – Sentencing Act 1991 ss 6D, 6E, 82A(6) and 82AA – Akoka v The Queen [2017] VSCA 214; Clarkson v The Queen (2011) 32 VR 361, applied.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr J McLoughlin | Victoria Legal Aid |
| For the Crown | Ms D Piekusis QC | Office of Public Prosecutions |
EMERTON JA
LASRY AJA:
Introduction
On 6 September 2016, the applicant pleaded guilty in the County Court at Melbourne to a charge of rape and a charge of sexual assault.
On 7 November 2016, the County Court imposed a five-year Residential Treatment Order pursuant to s 82AA of the Sentencing Act 1991 (‘Sentencing Act’). The Residential Treatment Order was cancelled on the application of the Secretary of the Department of Health and Human Services on 15 August 2018, and the applicant was remanded in custody.
On 19 November 2018, the applicant was resentenced by the same judge in the County Court as follows:
Charge Offence Max Penalty Sentence Cumulation 1 Rape
[Crimes Act 1958 s 38(1)]25 years 3 years and 6 months Base 2 Sexual assault
[Crimes Act 1958 s 40(1)]10 years 1 year 6 months Total Effective Sentence: 4 years Non-Parole Period: 2 years Pre-sentence detention declared: 318 days 6AAA Statement: 7 years with a non-parole period of 5 years Ancillary orders: Sentenced as a Serious Sexual Offender. Forensic sample order. Reporting under the Sex Offenders Registration Act 2004 for life.
The applicant now seeks leave to appeal the sentence on the single ground that the total effective sentence, individual sentences and the non-parole period are manifestly excessive in the light of the findings made in the reasons for sentence in relation to Charge 1 and the circumstances of the offending in Charge 2.
Circumstances of offending
At the time of the offences, the applicant and the victim lived in a supported residential unit, as both men have intellectual disabilities.
In the evening of 27 March 2016, the applicant went outside to smoke a cigarette, wearing only his dressing gown. He took lubricant with him, and he masturbated. When he came back into the house, he went into the victim’s bedroom. The victim was naked in bed and, according to the applicant, he appeared to be half asleep. The applicant began rubbing the victim’s foot and got into bed with him. He then placed the victim’s penis in his mouth for a couple of minutes. This constituted Charge 1, rape. The applicant then put lubricant on his hand and rubbed the victim’s bottom, giving rise to Charge 2, sexual assault.
The victim got up, and the applicant left. As the applicant exited the bedroom, he was confronted by the night worker who asked what he had been doing. At first, the applicant said that nothing had happened but then admitted that he had been ‘doing something sexual to [the victim]’. The night worker sent the applicant to his room and contacted the police.
Two days later, the applicant was interviewed by police and made full admissions. The applicant admitted that he chose the victim because he knew the other residents ‘would not let him do [sexual] stuff to them’. He said that he thought the victim would let him because he ‘doesn’t understand much what’s going on’. However, the applicant also stated that he knew the victim did not want the applicant to touch him ‘because he’s not into boys or men’. He said he asked the victim if he could touch his penis and the victim said, ‘No’.
The applicant has relevant prior convictions. He was previously convicted of a sexual offence for which he received a suspended term of imprisonment. On a second conviction for a charge of sexual offending, he was sentenced to a Community Correction Order. He has been on the Sex Offenders’ Register since 17 January 2014 with reporting conditions for 15 years.
Sentencing reasons
Initial disposition
When initially sentencing the applicant on 7 November 2016 to a Residential Treatment Order, the sentencing judge acknowledged that the applicant’s plea of guilty was entered early in the proceeding.[1] It had obviated the need for the victim to give evidence, which was significant. In his victim impact statement, dated 4 September 2016, the victim stated that he was scared and fearful of the applicant. The subsequent investigative process had also caused him some distress.
[1]DPP v Durham [2016] VCC 1659 [45] (‘Durham No 1’).
The judge referred to the applicant as having been diagnosed with a moderate intellectual disability. It was further noted that the applicant had experienced an extremely deprived childhood, and had suffered severe neglect as well as sexual and physical abuse perpetrated by his father and others.
The judge agreed that the principles of Verdins[2] were enlivened such that the court needed to moderate the application of general and specific deterrence. She also referred to the principles in Bugmy v The Queen[3] and Director of Public Prosecutions v Terrick,[4] declaring herself satisfied that the applicant’s history of intellectual disability, combined with the ongoing impact of his childhood and the circumstances of sexual, physical and emotional abuse inflicted upon him, had reduced his moral culpability.
[2]Verdins; Buckley; Vo (2007) 16 VR 269.
[3](2013) 249 CLR 571.
[4](2009) 24 VR 457.
It was apparent to the sentencing judge that imprisonment on remand had had a negative effect on the applicant because he was being held in protection and there had been occasions of self-harm. He continued to present a high risk of reoffending, particularly in the light of his behaviour whilst on remand. The judge was satisfied that the principles of sentencing could be met by subjecting the applicant to a Residential Treatment Order rather than to a sentence in an adult prison.
Her Honour also noted that s 6AAA of the Sentencing Act did not apply as a term of imprisonment was not imposed.
Revocation of Residential Treatment Order
When ultimately revoking the Residential Treatment Order on 15 August 2018, the judge noted that, in addition to his moderate intellectual disability, the applicant had now been diagnosed with sexual sadism disorder, emotionally unstable personality disorder, and epilepsy.[5] She described his resistance to all forms of treatment provided under the Residential Treatment Order and summarised the applicant’s response as follows:
Since residing at the intensive residential treatment program at the [Disability Forensic Assessment and Treatment Service] facility on the [Residential Treatment Order] Mr Durham’s overall progress has not been successful. There has been limited evidence of any improvement in his behaviours and presentations and in particular, he has not improved following the implementation of additional strategies and supports that were put in place following the initial court hearing on 19 and 20 June 2018.
On the contrary, risk monitoring showed a slight increase in sexually aggressive behaviours and a significant (two-fold) increase in verbal aggression. Consequently, Mr Durham’s risk behaviours have negatively impacted on the safety and wellbeing of all the other residents and staff at the Residential Treatment Facility …[6]
[5]Secretary to the Department of Health and Human Services v Durham [2018] VCC 1300 [15] (‘Secretary to DHHS v Durham’).
[6]Ibid [18]- [19].
A plethora of evidence was filed in support of the application to revoke the Residential Treatment Order, including two reports from Dr Joseph Sakdaln, a consultant clinical psychologist and neuropsychologist. Dr Sakdaln considered it highly likely that the applicant’s risk behaviours would further escalate if he continued to reside at the residential treatment facility and that there was limited therapeutic benefit for him to remain there. He advised that the applicant would likely engage in self-sabotaging behaviours as he was fixated on the thought that he would not benefit from staying at the facility and would ‘do anything’ to be transferred to prison.
While Dr Sakdaln acknowledged that prison would come with its own challenges, given the applicant’s vulnerabilities, he considered it likely that the applicant would respond positively to the highly-structured and supervised environment of the prison setting.
Resentencing
When resentencing the applicant on 19 November 2018, the judge adopted her reasons for sentence in the first instance as they related to the circumstances of the offending, the applicant’s criminal history, his background of significant dysfunction and deprivation, and the effect of his early guilty plea and Verdins on his sentence.[7]
[7]DPP v Durham [2018] VCC 1974 (‘Durham No 2’).
The judge stated that she also had regard to the matters put in mitigation, including the applicant’s full confession and the application of a ‘Doran discount’. [8]
[8]R v Doran [2005] VSCA 271 [14] .
The judge accepted that the applicant remained vulnerable within the prison system and that it was possible that prison might exacerbate his conditions. The judge then referred to and adopted her reasons for granting the application to revoke the Residential Treatment Order. She continued:
There is a total of 646 days that you have spent at the Residential Treatment Program, in a secure environment. I have taken that period into account in a general sense in fixing the period of imprisonment. I expressly have applied the principles as set out in Akoka v The Queen.[9] I do accept, in the circumstances of your complex condition, that is described in the various reports, that the treatment failure is as a result of your profound intellectual and psychological problems.[10]
[9]Akoka v The Queen [2017] VSCA 214 (‘Akoka’).
[10]Durham No 2 [2018] VCC 1974 [10].
The judge noted that the applicant was a Serious Sexual Offender pursuant to the Sentencing Act, and therefore protection of the community became the principal purpose of sentencing.[11] Although she acknowledged that, in order to fulfil that purpose, the court could impose a sentence disproportionate to the one that would otherwise have been imposed, the judge accepted the prosecution’s submission that a disproportionate sentence was not required in the applicant’s case.[12]
[11]Sentencing Act 1991 s 6B(2).
[12]Durham No 2 [2018] VCC 1974 [13].
The judge directed that the applicant be sentenced as a Serious Sexual Offender in relation to Charge 2. She also noted that s 6E of the Sentencing Act directed that every term of imprisonment imposed on a Serious Sexual Offender had to be served cumulatively, unless the Court otherwise directed.
Finally, as the applicant was now sentenced to a term of imprisonment, the sentencing judge made a declaration pursuant to s 6AAA of the Sentencing Act that but for the plea of guilty, she would have sentenced the applicant to 7 years imprisonment with a non-parole period of 5 years.
Submissions
The applicant submitted that the mitigating factors found by the sentencing judge, including the Verdins principles, the Doran discount and the plea, when combined with the totality considerations arising from his time spent in the residential treatment facility ‘required the imposition of an unusually low sentence’.
The applicant argued that the sentence imposed on Charge 1 and the total effective sentence are manifestly excessive and can only be explained by the inference that the sentencing judge failed to properly take into account the time spent in the residential treatment facility. This Court was therefore urged to accept that inference.
It was further submitted, in relation to Charge 2, that the cumulation of 6 months was manifestly excessive given the circumstances of the offence. The applicant submitted that the offending was non-violent and did not involve penetration of the victim. Additionally, the conduct comprising Count 2 had a close temporal relationship to the conduct of Count 1.
The applicant referred, in a table, to a number of decisions involving the sentences of sexual offences committed by persons with an intellectual disability.[13] This table demonstrated, it was submitted, that a sentence of four years was within the appropriate range when no discount for the time spent in the residential treatment facility was applied.
[13]DPP v Davis [2017] VSCA 341; Harmon (a pseudonym) v The Queen [2017] VSCA 169; Ryder v The Queen [2016] VSCA 3; Martin v The Queen [2013] VSCA 377; NJ v The Queen [2012] VSCA 256.
On behalf of the Crown, it was submitted that the individual sentences imposed on Charges 1 and 2 and the non-parole period were within the appropriate sentencing range.
The Crown accepted that conviction on the primary charge of rape was, to a significant extent, made possible by the applicant’s confession, given the victim’s intellectual impairment. However, the Crown argued that the sentencing judge had considered and given a discount, which fully reflected the role the applicant’s confession had in his own conviction.
It was further submitted that the judge also gave a discount for the applicant’s early guilty plea. Further, she found all limbs of Verdins were enlivened and had adjusted the application of general deterrence and denunciation accordingly.
In relation to the time spent in the secure residential facility pursuant to the Residential Treatment Order, the Crown submitted that the sentencing judge had taken this time into account. In her sentencing remarks, the judge expressly applied the principles in Akoka v The Queen (‘Akoka’).[14] According to the Crown, the sentencing judge could have done nothing more to reflect the ‘quasi-custodial’ period that the applicant spent in the residential treatment program, and she was not required to give a ‘day for day’ discount.
[14]Akoka [2017] VSCA 214 .
Finally, it was submitted that the sentencing judge had taken the principle of totality into account, but she had stated that she was also bound by s 6E of the Sentencing Act as the Serious Sexual Offender provisions applied to the applicant.
Analysis
In our view, it cannot be sensibly submitted that the sentencing judge did not give due consideration to the 646 days that the applicant had spent in the secure residential facility in her sentencing synthesis. In her reasons, the judge specifically stated that she had accounted for this time and confirmed the application of Akoka.
The credit applied under Akoka for time spent as a resident in a secure residential facility depends on the circumstances of each case. As this Court said in Akoka:
[R]esidence at a rehabilitation facility, no matter how restrictive and punitive, is not equivalent to time spent in custody. It will not ordinarily result in a deduction of the entire period…’[15]
[15]Akoka [2017] VSCA 214 [111] (citations omitted).
The sentencing judge was only required to consider the duration, nature and severity of the restrictions to which the applicant was subject in the residential treatment facility as part of the instinctive synthesis ‘without [the discount] being numerically identified’.[16]
[16]Ibid [110].
Apart from expressly stating that she had accounted for that time, the judge was the original sentencing judge and had also ruled on the application to revoke the Residential Treatment Order. In doing so, she had reviewed the comprehensive materials filed in support of that application; much of which went to the circumstances of the applicant’s time in the facility. The judge was well-versed in and sensitive to the applicant’s circumstances and the conditions of his detention.
We are not persuaded that a comparison with the cases in the applicant’s table leads to the conclusion that the sentencing judge failed to give a discount for the time spent in the secure facility or, indeed, that she gave insufficient weight to that factor.
As detailed above, the judge recognised that the applicant had presented as ‘a most complex and challenging individual’[17] who demonstrated resistance to the treatment and management that had been provided. The Sentencing Act provides that, in determining a sentence to impose following the cancellation of a Residential Treatment Order, the court must take into account the extent of the applicant’s compliance with that order.[18]
[17]Secretary to DHHS v Durham [2018] VCC 1300 [17].
[18]Sentencing Act s 82A(6).
Further, the applicant is a Serious Sexual Offender and had to be sentenced accordingly. Having regard to the applicant’s criminal history and his concerning conduct while subject to the Residential Treatment Order, the judge was justified in imposing a cumulative sentence.
Ultimately, the sentencing judge imposed a total effective sentence of four years’ imprisonment with a non-parole period of two years. At 50% of the head sentence, this represents a shorter than usual non-parole period and contemplates that the applicant may be placed under supervision in a non-prison environment for a considerable portion of his sentence. It reflects the sentencing judge’s community protection concerns balanced against the factors mitigating his moral culpability.
The complaint of manifest excess will only succeed if it can be shown that the sentence was wholly outside the range of sentencing options available to the sentencing judge.[19] This is a high threshold to meet and, in our view, it has not been met in this instance. The total effective sentence and the individual sentences are all within the appropriate range.
[19]Clarkson v The Queen (2011) 32 VR 361, 384 [89].
Leave to appeal will be refused.
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