Mush v The Queen
[2019] VSCA 307
•18 December 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0215
| MICK MUSH | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | MAXWELL P and KAYE JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 11 December 2019 |
| DATE OF JUDGMENT: | 18 December 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 307 |
| JUDGMENT APPEALED FROM: | [2018] VCC 1509 (Judge Mullaly) |
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CRIMINAL LAW – Appeal – Sentence – Applicant broke into victim’s home – Subjected victim to repeated acts of sexual assault and rapes – Offences took place in 1985, applicant identified as offender in 2014 – One charge of burglary and six charges of sexual offending – Representative charges of indecent assault with aggravating circumstances and rape with aggravating circumstances – Protracted offending – Applicant aware of victim’s suffering – Total effective sentence 19 years’ imprisonment, non-parole period 15 years – Whether manifestly excessive – Each charge was separate crime – Objective gravity of offending very high – Severe impact on victim – Applicant’s moral culpability extremely high – Prior criminal history – Subsequent convictions for sexual offending – Applicant sentenced as serious sexual offender – Mitigating circumstances included plea of guilty, sentence burdensome on applicant, young age at time of offending – Long delay no mitigating factor – Sentences within range – Orders for cumulation appropriate – Sentences in compliance with principle of equal justice – Parole period appropriate – Leave to appeal refused – Sentencing Act 1991 s 6E.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr R Richter QC with Mr T Schocker | Stary Norton Halphen |
| For the Respondent | Mr J C J McWilliams | Ms A Hogan, Acting Solicitor for Public Prosecutions |
MAXWELL P
KAYE JA:
In the late evening of 22 November 1985, the applicant, who was then 23 years of age, broke into the home of FH,[1] who was then living on her own in a unit in Geelong. In the following two hours, the applicant subjected FH to an horrifying ordeal in which he repeatedly raped and indecently assaulted her, in circumstances that were degrading and utterly terrifying for the victim. The applicant was not identified as the offender until 2014, when further analysis of swabs taken from FH resulted in the identification of a DNA profile that matched that of the applicant.
[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the use of initials in place of the name of the complainant.
On 8 December 2016, the applicant was arrested and charged with offences relating to those circumstances. Ultimately, in February 2018, he pleaded guilty, in the County Court, to one charge of burglary, one charge of assault causing actual bodily harm, three charges of indecent assault with aggravating circumstances (two of which were representative charges), and two charges of rape with aggravating circumstances (one of which was a representative charge). After a plea hearing, the applicant was sentenced to a total effective term of 19 years’ imprisonment, with a non-parole period of 15 years.[2] He seeks leave to appeal the sentences on two grounds.
[2]DPP v Mush [2018] VCC 1509 (‘Reasons’).
Circumstances of offending
The circumstances of the offending are disturbing. It is necessary to set them out in some detail in order to fully depict the enormity of the offending engaged in by the applicant, and to enable an informed evaluation of the objective gravity of that offending, and the applicant’s moral culpability for it.
At the time of the offences, the complainant was 44 years of age. She lived in a flat that was located in Geelong. The flat was on the ground floor of a block of flats.
At about 10.40 pm on 22 November 1985, FH went to bed and fell asleep. Sometime after that, the applicant gained entry to her unit through the bathroom window. The noise of his entry awoke her. Before she could react, the applicant seized hold of her and threw her off the bed, causing her to fall between the bed and a chest of drawers. The circumstances just related constituted charge 1 (burglary).
FH commenced to call for help and screamed. The applicant stood over her and told her to be quiet. He grabbed her head and started to bang it on the floor. When FH resisted, the applicant became more violent. He started to punch her, with one blow hitting her to the right eye (charge 2 — assault causing actual bodily harm).
In an attempt to stop FH from screaming, the applicant told her that he would not hurt her, but he just wanted her money. He told her that if she would not be quiet he would kill her, and said ‘I’ve got a knife’. In doing so, he placed a cold metal object against her neck which she believed was a knife. The applicant then dragged FH to a standing position. He asked her where she kept her stockings. When she attempted to respond, the applicant slapped her across the face and neck. FH then went to the wardrobe and retrieved a pair of stockings which she gave to the applicant. He wrapped the stockings around her head and through her mouth to prevent her from calling out for help.
The applicant then pushed FH to the end of the bed, removed her nightie, forced her to lie down, and began to touch her all over the body with his hands. When she tried to remove the stockings from her mouth, he slapped her on the face. The complainant pleaded with the applicant to take her money and to leave. He asked her what her name was and how old she was, and FH responded. The applicant replied that he ‘did not know she was so good’ and that she ‘wasn’t bad for an old lady’.
By then the applicant was naked from the waist down. He instructed FH to open her legs. At that stage he had one hand on her throat while pinning down the top half of her body with his own body weight. He then started to lick FH’s genitals. When FH told him she was not enjoying what he was doing, he struck her around the head repeatedly. That conduct constituted the first aspect of charge 3 (indecent assault with aggravating circumstances), which was a representative charge relating to two aspects of conduct by the applicant.
The next part of the offending was the basis of the second aspect of charge 3. The applicant turned FH onto her stomach, and attempted to stick his fingers into her anus. FH screamed in agony. Each time she did so, the applicant hit her. She repeatedly begged him to stop. He then started to lick FH’s anal area. While doing that he gripped the stocking which gave him control of FH’s head. Each time she made a noise, he tightened the grip on the stocking causing her difficulty breathing.
Charge 4 was one of aggravated rape, which was a representative charge in respect of four aspects of the applicant’s conduct that then ensued.
The first aspect of conduct, constituting charge 4, then occurred. The applicant told FH to lie on her back before he straddled her. He instructed her to open her legs and to put his penis into her vagina. Fearing that he would strike her again, she took the applicant’s penis in her hand and placed it into her vagina. The applicant then moved his penis in and out of her vagina while trying to kiss her on the mouth.
The second aspect of charge 4 then followed. The applicant got off FH and demanded that she get on top of him. FH was fearful for her safety and therefore obeyed his orders, complying with his demands by again putting his penis into her vagina.
The first part of charge 5 (indecent assault with aggravating circumstances — a representative charge) then occurred. The applicant demanded that FH put her finger in his anus, which she refused to do. He told her to get off him so he could have a cigarette. He then made FH lie face down on the bed while he smoked the cigarette. He told FH that if she said anything she would be killed, there was no way that she could escape, and he had ‘many brothers who would come after her’. He then told FH to get onto her front. When she did so, he stuck his finger into her anus, taking it out and licking it. FH screamed in agony. The applicant told her he was going to stick his penis into her anus. FH pleaded with him not to do so as she had recently undergone surgery in the abdominal area for cancer. The applicant responded ‘Don’t worry. If what I’ve done to you hasn’t killed you nothing will’.
The conduct constituting charge 6 (rape with aggravating circumstances) and charge 7 (indecent assault with aggravating circumstances) was the next part of the ordeal to which the applicant subjected FH. The applicant asked the complainant for some Vaseline. When she told him she did not have any, he head-butted the back of her head with his head. He then instructed FH to perform oral sex on him. Each time he felt her teeth, he struck her to the top of the head. During the whole of the time that she was forced to perform oral sex on the applicant, he forcibly inserted his fingers into her vagina, causing her pain. FH, understandably, was then crying hysterically.
The next action by the applicant constituted the second occasion of charge 5 (aggravated indecent assault) and the third occasion of charge 4 (rape with aggravating circumstances). At that point, the complainant told the applicant she could not do any more. He directed her to get back on the bed and turn over. He then placed his fingers inside her anus. He attempted to insert his penis into her vagina. At first he could not do so, but he then was able to insert his penis into her vagina from behind.
The applicant’s next actions constituted the fourth part of charge 4 (rape with aggravating circumstances). The applicant made FH turn over onto her back. He inserted his penis into her vagina, moving up and down. He said ‘Going to do it until I blow. Once I’ve done that, I’ll go’. Finally, after what appeared to be a long time to FH, the applicant ejaculated inside her vagina. During the whole of that time, he insisted that she insert her fingers in his anus and he tried forcibly to kiss her.
Immediately after that last assault, the applicant stood up and asked the complainant where her money was. When she told him it was in her wallet in the lounge room, he left the bedroom, and returned carrying her wallet from which he removed $170. He then ripped off the stockings, which were still around the complainant’s head and mouth, with such force that he pulled out some of her hair. Having done so, he then departed.
FH then tried to telephone her husband. When she was unable to do so, she telephoned a friend, and told her that she had been ‘bashed and raped for hours’.
When FH was subsequently examined at the Geelong Hospital Emergency Department, she was found to have a cracked left cheek bone, friction burns and soreness to the neck. The ordeal to which she was subjected has left her with long-standing and severe psychological and emotional wounds, which we will describe later when summarising the contents of her victim impact statement.
The proceeding
As noted, the applicant was arrested on 8 December 2016. Subsequently, by an order of the Supreme Court, he was granted bail on 8 March 2017. The first committal mention was listed for 7 April 2017. A contested committal hearing took place in August 2017. The complainant, FH, was not required to give evidence. The only witness, who was cross-examined, was the expert who gave evidence about the DNA analysis. The trial was listed to commence in Geelong Court on 26 February 2018. The matter resolved on 28 February 2018. The applicant was arraigned, pleaded guilty, and was remanded in custody.
The sentence
As earlier mentioned, for those offences the applicant was sentenced to a total effective sentence of 19 years’ imprisonment with a non-parole period of 15 years. That sentence was constituted as follows:
| Charge on Indictment G13357260.1 | Offence | Maximum | Sentence | Cumulation |
| 1 | Burglary [s 76(1) Crimes Act 1958] | 14 years [s 76(3) Crimes Act 1958] | 3 years | 1 year |
| 2 | Assault causing bodily harm [s 37 Crimes Act 1958] | 5 years [s 37 Crimes Act 1958] | 1 year | 6 months |
| 3 | Aggravated indecent assault - licking genitals representative of 2 occasions [s 44(2) Crimes Act 1958] | 10 years [s 44(2) Crimes Act 1958] | 3 years | 1 year |
| 4 | Rape with aggravating circumstances contrary to Common Law representative of 4 occasions | 20 years | 10 years | Base Sentence |
| 5 | Aggravated indecent assault – finger into anus representative of 2 occasions [s 44(2) Crimes Act 1958] | 10 years [s 44(2) Crimes Act 1958] | 4 years | 2 years |
| 6 | Rape with aggravating circumstances – penis into mouth [45(3) Crimes Act 1958] | 20 years [s 45(3) Crimes Act 1958] | 6 years | 3 years 6 months (originally announced as 3 years) |
| 7 | Aggravated indecent assault — finger into vagina [s 44(2) Crimes Act 1958] | 10 years [s 44(2) Crimes Act 1958] | 3 years | 1 year |
| Total Effective Sentence | 19 years | |||
| Non-Parole Period: | 15 years | |||
| (1) of the Sentencing Act 1991Pre-Sentence detention declaration pursuant to s 18: | 290 days | |||
| 6AAA Statement: 23 years with a non-parole period of 19 years. | ||||
| Other relevant orders: Registered as a sex offender pursuant to s 34 of the Sex Offenders Registration Act 2004 with life reporting. Sentenced as a serious sexual offender pursuant to s 6F of the Sentencing Act 1991 in respect of charges 3 – 7. | ||||
Grounds of appeal
The applicant seeks leave to appeal the sentences on the following two grounds:
Ground 1 – The individual sentences imposed on charge 4, 6 & 7 the orders for cumulation, the total effective sentence and the non-parole period are manifestly excessive.
Particulars:
Insufficient weight was given to:
(a)The age of the applicant at the time of the offending;
(b)The personal circumstances of the applicant and the matters in mitigation;
(c) The principal [sic] of totality;
(d)The demonstrable rehabilitation that had occurred in recent years;
(e) The applicant’s prospects for rehabilitation;
(f) Current sentencing practice.
Too much weight was given to:
(a)The applicant’s criminal history.
Ground 2 – The Sentencing Judge erred in concluding the criminal history at the time of the offending added to the seriousness or the assessment of the gravity of the applicant’s offending.
Previous convictions
The applicant had a substantial number of previous convictions resulting from some ten separate court appearances between March 1979 (when he was 17 years of age) and July 1983. They included multiple convictions for offences of burglary, robbery and assault. In 1979, he was sentenced to two years’ detention in a youth training centre for eleven charges of burglary and criminal damage. In December 1982, he was imprisoned for nine months in respect of four burglary offences and possession of house breaking implements. After he was released, he was sentenced, in June 1983, to six months’ imprisonment for offences of assault in company, assault by kicking and unlawful assault. As the judge, in the reasons for sentence in the present case noted, the applicant, before November 1985, had a propensity for violence and house breaking offences. As a consequence, as a young man he had served terms of youth detention and then imprisonment.[3]
[3]Ibid [44].
Subsequent offences
Following the offences that were committed in November 1985, the applicant went on to commit a series of further serious offences.
In November 1987, the applicant stood trial on a charge of murder. He was acquitted on that charge, but convicted of the alternative charge of manslaughter. He was sentenced to imprisonment for a period of three years and six months, with a non-parole period of two years.
The applicant was released on parole on 27 May 1988. On 1 September 1988, he was sentenced to 12 months’ imprisonment on two charges of indecent assault, which consisted of acts of digital penetration. Subsequently, he was released on parole in October 1990.
In the period that followed the applicant committed a number of traffic and other offences. In May 1994, he was fined $2,500 on charges of assault, unlawful possession and fraudulent use of number plates.
More substantively, in December 1995, he was found guilty by a jury on a charge of rape. He was sentenced to a term of three years’ imprisonment with a non-parole period of 18 months. On his release from prison, he was again before the courts for driving offences and using a telephone to harass. He was sentenced to a community corrections order, and, subsequently, to a suspended term of imprisonment for those offences. In the period that followed, the applicant remained out of trouble, except that in May 2015, he was convicted for making a threat to kill and fined $500.
The plea
The applicant was born in Macedonia in 1962. His family moved to Australia in 1964. When he was four years of age, his elder brother, who was then seven years, died of leukaemia. Tragedy struck again two years later, in 1968, when his father died as a result of a motor vehicle accident. The applicant’s mother had limited English skills. She had to work very long hours as a cleaner in order to sustain herself and the applicant. Her brother (the applicant’s uncle) moved to Melbourne from Wollongong, and helped to support the family.
As a result, the applicant had inadequate supervision as a child. At one stage, in June 1975, he was subject to a care and protection application. He had a limited education and left school in Year 9. In the years that followed, he was employed as a French polisher, and a builder’s labourer. He was also employed at the Ford factory as a press operator and as a storeman. He was ultimately retrenched from those positions and subsequently at times was on Centrelink benefits. During the last ten years before his arrest, he had been on a disability support pension, and had occasional work as a farmhand picking broccoli.
During the latter part of the 1990s, the applicant’s mental health deteriorated. During his last term of imprisonment for the rape in 1995, he complained of hearing voices and becoming paranoid. After his release, he attended the Geelong Hospital Psychiatric Service in 1997. He was then diagnosed to suffer from vague paranoid thoughts, and he gave vague descriptions of voices inside and outside of his head.
In October 2005, the applicant attended the Geelong West Community Mental Health Clinic Outpatient Clinic. Dr Helen McKenzie, who attended the applicant, noted that he had been assessed to have an anti-social personality disorder, attention deficit hyperactivity disorder and possible paranoid psychosis, all of which were complicated by his polysubstance abuse. The applicant described to Dr McKenzie a deterioration in his mood over the preceding three months, with symptoms including depression, poor sleep, loss of weight and loss of motivation and energy. Dr McKenzie considered that the applicant appeared to be experiencing a depressive episode in a background of significant personality disturbance, which was anti-social and probably paranoid. At that stage, he had been abstinent from alcohol and illicit drugs for some time, and he had been attending a methadone clinic in Geelong West to deal with his heroin abuse addiction.
During the following twelve months, the applicant’s mental health deteriorated. He was hospitalised in Geelong Health for a period of two weeks. The discharge summary described the applicant as having schizophrenia. At that stage, he was compliant with his prescribed medication, and he was recommenced on his usual dose of Olanzapine and other medications. After a period of one week, he reported feeling calm and more settled. Ultimately, he was discharged home to his mother’s house where he had been living.
In January 2009, the Barwon Health Community and Mental Health Centre was contacted by the applicant’s mother (with whom the applicant lived). She reported increased aggressive and assaultive behaviour by the applicant towards her. The police attended and the applicant was conveyed to the clinic. The records of the clinic note that the applicant had only partial insight into his illness. He did not accept that his experiences of paranoid thinking and auditory hallucinations were part of his symptoms. It was also noted that he had a history of morphine and alcohol abuse, and he was then on treatment with methadone. He was discharged from the clinic. The discharge plan was for the applicant to attend the Corio Medical Clinic fortnightly for depot injections.
Since 2016, the applicant had attended Dr Stephen Fitzgerald of the Vines Road Medical Centre in relation to his schizophrenia, which was treated by depot anti-psychotic injections. In his report, Dr Fitzgerald recorded that the applicant’s schizophrenia had been stable, he had been compliant with his medication, and he had no symptoms of psychosis. Dr Fitzgerald expressed the view that the applicant’s mental health would be challenged by incarceration, so that he would require close monitoring and review by a psychiatrist while in prison.
In the plea hearing, the applicant’s uncle, George Javanovski, gave evidence. Mr Javanovski had helped raise the applicant. He said that the applicant had made ‘really good changes’ in his lifestyle since about 2004, by being abstinent from alcohol abuse. He said that his whole attitude to life had altered in a manner that was ‘nothing less than miraculous’. In particular, the applicant had commenced to demonstrate some empathy for others, and he had expressed regret as to how he had treated other people, including his mother.
On the plea, counsel for the applicant relied primarily on the applicant’s plea of guilty, which was said to be a valuable plea in circumstances in which the only effective evidence against the applicant was the DNA evidence. It was submitted that the plea had utilitarian value in that it saved court time and also spared FH, the complainant, from the need to re-live the incident. Counsel also contended that the applicant’s reform, since his last offence in 1995, should be taken into account as bearing on his prospects of rehabilitation. Further, counsel pointed to the significant period of 33 years from the date of offending. As a result of the applicant’s mental health issues, a term of imprisonment would be more burdensome for him. In addition, the applicant would suffer some anxiety arising out of the declining health of his mother to whom he was very close.
Reasons for sentence
In thorough and detailed reasons for sentence, the judge set out the circumstances of the offending, the applicant’s criminal history, his personal circumstances, his subsequent offending, and his mental health issues.
Having done so, the judge assessed the seriousness of the applicant’s offending as being ‘very grave, indeed to the upper end of the spectrum’.[4] He considered that the applicant’s moral culpability was high, and had not been moderated by any personal factors such as mental illness.[5] The applicant had sought to dominate his victim, and he did not display any human feeling towards her at all. The judge considered that the applicant’s conduct revealed a ‘very dark side’ of his character, and his conduct placed the offences ‘well into the upper echelons for these crimes’.[6] The judge further considered that the applicant’s previous criminal history was relevant, stating that it added to his assessment of the gravity of the applicant’s offending.[7] In view of the seriousness of the applicant’s offending, the judge considered that the mitigatory effect of his youth, at the time of the offending, was reduced.[8]
[4]Ibid [64].
[5]Ibid.
[6]Ibid [61].
[7]Ibid [40], [46].
[8]Ibid [47].
The judge noted that it had not been put, on behalf of the applicant, that his mental illness was relevant to any of the sentencing purposes, other than that, as a result of it, a sentence of imprisonment was likely to be more burdensome for him.[9] The judge also accepted, as a factor in mitigation, that the applicant would be concerned about how his mother was coping and about her health.[10] The judge took into account the applicant’s plea of guilty, albeit that it was not an early plea, and that it was only made as the trial was about to commence. Nevertheless, the judge accepted that the plea was of utilitarian value, and that it also was an expression of the applicant’s remorse.[11]
[9]Ibid [84].
[10]Ibid [86]–[88].
[11]Ibid [89]–[90].
The judge noted that the applicant was not to be punished, again, for the subsequent offences which he had committed. However, the applicant could not, as a result, expect a merciful sentence on the basis of good behaviour by him after the commission of the offence.[12] The judge regarded the applicant’s prospects of rehabilitation as being ‘not forlorn’, as the applicant had been ‘more or less’ out of trouble for a number of years since 1995.[13]
[12]Ibid [101].
[13]Ibid [98].
The judge noted that the applicant was to be declared a serious sex offender for all of the offences on the indictment (charges 3 to 7), so that, to some extent, the totality principle was thereby modified.[14]
[14]Ibid [90]–[95].
Submissions
In oral submissions before the Court, senior counsel for the applicant did not rely on ground 2 as a separate ground of specific error. Rather, he relied on the matters raised by ground 2 as an aspect of the contention contained in ground 1, that the sentences imposed on the applicant were manifestly excessive.
In the applicant’s written case, counsel had made specific submissions in support of the proposition that the individual sentences imposed on grounds 4, 6 and 7 were each manifestly excessive. However, in oral argument, senior counsel confined his arguments to a submission that the orders for cumulation, the total effective sentence and the non-parole period were each manifestly excessive. Indeed, senior counsel realistically (and properly) conceded that the sentence of six years’ imprisonment imposed on charge 6 (rape with aggravating circumstances) was not of itself manifestly excessive. Nevertheless, senior counsel did not expressly abandon reliance on the parts of the written case that were directed to the individual sentences on charges 4, 6 and 7. Accordingly, we will outline those submissions, albeit in brief compass.
In support of the issue raised in ground 2 (which, as we have stated, was relied on as an aspect of ground 1), counsel for the applicant placed particular reliance on paragraphs 40 and 46 of the judge’s sentencing reasons, which were in the following terms:
40Another matter connected to my assessment of the gravity of the crimes, as well as being a matter independently important in my understanding of you and your prospects, is your troubling and considerable past. In respect of my assessment of the gravity of the crimes, I have considered your crimes prior to 22 November 1985.
…
46In my view, your criminal history leading up to your offending adds to the seriousness or [sic] my assessment of the gravity of your offending in November 1985. Those matters also cast light on the weight to be given to your youth at the time of these aggravated rapes and other offences committed upon this victim.
Counsel for the applicant contended that in those passages the judge impermissibly took into account the applicant’s previous convictions in evaluating the objective gravity of the offences for which he was to be sentenced. That approach, it was submitted, was contrary to the principle stated by the High Court in Veen v The Queen [No 2],[15] namely, that while the antecedent criminal history of an offender may be relevant to matters such as the assessment of the offender’s moral culpability, it is not relevant, and cannot add, to the gravity of the particular offence which is under consideration.
[15](1988) 164 CLR 465, 477 (Mason CJ, Brennan, Dawson and Toohey JJ) (‘Veen No 2’).
Having made that point, counsel then turned to ground 1. In support of that ground, he submitted that the judge ought to have given greater weight to the fact that the offences, that constituted charges 2 to 7, were committed in the one incident. That incident was the first occasion upon which the applicant had committed a sexual offence. Further, the offending should be understood in the context of the applicant’s youth at the time, although counsel accepted that, in a case of such seriousness, the applicant’s youth is given lesser weight.
Counsel emphasised that the offences were committed by the applicant in the course of one continuing event which was confined to a period of, at the most, two hours. The applicant had not committed any previous sexual offence. Although he had subsequent convictions, including on two separate occasions for sexual offences, he had not committed such an offence for a period of more than twenty years before sentence. The offences in the present case were committed when the applicant was 23 years of age, and he fell to be sentenced when he was 56 years old. In the intervening time, he had suffered the onset of severe psychiatric illness, which necessitated ongoing treatment. In those circumstances, counsel contended that the imposition of a sentence of 19 years’ imprisonment, with a non-parole period of 15 years, was crushing and was manifestly excessive.
Counsel acknowledged that, as the applicant was sentenced as a serious sexual offender, the principle of totality had to give way, to some extent, to the presumption of cumulation specified in s 6E of the Sentencing Act 1991. Nevertheless, he submitted that the periods of cumulation directed by the judge in respect of each of the sentences, and in particular on charge 5 and charge 6, were manifestly excessive. Counsel further submitted that the non-parole period, which represented 79 per cent of the total effective sentence, was manifestly inadequate, taking into account the applicant’s age at the time of the offending, the long period between the offending and sentence, the applicant’s rehabilitation, and his prospects for further rehabilitation.
As we have mentioned, senior counsel for the applicant did not address any specific submissions to the sentences imposed on charges 4, 6 and 7. However, he did not specifically abandon the contentions made in respect of those charges in the written case.
In the written case it was submitted, in respect of charge 4, that a sentence comprising 50 per cent of the available maximum sentence of 20 years’ imprisonment was manifestly excessive for multiple acts of penile/vaginal penetration that occurred over one continuing period on a single occasion. It was further submitted (in the written case) that the sentence of 6 years’ imprisonment imposed on charge 6, which constituted one single act of offending, was manifestly excessive, particularly when compared with the sentence, of 10 years’ imprisonment, imposed by the judge on charge 4, which was a representative count in respect of four acts of penile/vaginal penetration.
A similar submission was made in relation to the sentence of 3 years’ imprisonment imposed for charge 7, which was a single act of digital penetration. It was contended that that sentence could not be reconciled with the sentences imposed on charges 3 and 5, which were representative charges of aggravated indecent assault, and in respect of which the applicant was sentenced to terms of 3 years’ imprisonment and 4 years’ imprisonment respectively.
In support of ground 1, counsel further submitted that the applicant was able to rely on a number of important personal mitigating factors. The applicant had pleaded guilty. He had not offended for a period of 18 years. He had a disadvantaged upbringing. A term of imprisonment would be more burdensome, first, because of his mental health issues, and, secondly, because of the anxiety which he would experience concerning his mother, who is elderly and in ill-health. It was submitted that the applicant was not a significant risk to the community, and his prospects for rehabilitation were good. Counsel placed particular emphasis on the applicant’s plea of guilty, which the sentencing judge described as ‘of significant mitigatory value’.[16]
[16]Reasons [89].
Finally, in the written case, counsel for the applicant noted that in sentencing submissions, the prosecution had referred the judge to the sentences in three previous cases, as indications of current sentencing practices for the offences committed by the applicant. Those cases were R v Lakeland,[17] R v Aucello[18] and R v Garcia.[19] Counsel also referred to the sentences imposed in the more recent decision of this Court in DPP v Granata.[20] Counsel contended that, when the offending in the present case is compared with the offending in those other cases, the sentences imposed on the applicant were relevantly more substantial than those which could be supported by reference to current sentencing practices.
[17](Supreme Court of Victoria Court of Criminal Appeal, Phillips CJ, Marks and Hampel JJ, 19 November 1993).
[18](Supreme Court of Victoria Court of Criminal Appeal, Young CJ, Crockett and Vincent JJ, 6 October 1988).
[19](Supreme Court of Victoria Court of Criminal Appeal, Young CJ, Kaye and Brooking JJ, 14 November 1986).
[20][2016] VSCA 190.
In response, counsel for the respondent contended that the objective gravity of the offences committed by the applicant was of a very high order. Although the offences occurred in the course of one episode, nevertheless each offence was a separate and distinct criminal act. In total, the offences constituted a series of degrading and painful acts committed against a defenceless woman who had every right to feel safe and secure in her own home. The applicant had a previous history of burglaries and acts of violence. He was not able to avail himself of any circumstance which might have mitigated his moral culpability, such as mental impairment, or a deprived and disadvantaged background which accounted for his conduct.
In respect to the point raised under ground 2, counsel submitted that in the passages of the reasons for sentence relied on by counsel for the applicant, the judge did not rely on or use the applicant’s previous convictions as a matter of aggravation of the objective gravity of the offending. Rather, in those passages, the judge addressed the totality of the applicant’s offending, and of his personal circumstances. In other words, the judge addressed not only the objective gravity of the offending, but also the applicant’s moral culpability for it. Accordingly, counsel submitted, the judge was correct to consider that the applicant’s offending was very serious, and that it came towards the upper end of gravity for offences of that kind.
Counsel submitted (in the respondent’s written case) that the sentences imposed by the judge on charges 4, 6 and 7 were each well within the range of sentences available, taking into account the prescribed maximum sentence for each such offence. In particular, the sentence imposed on charge 4 was well within the range of sentences available, as that charge was a representative count, and the offending involved a significant degree of violence. The sentence of six years’ imprisonment for charge 6 was well within the range of sentences available for that offence, taking into account that the maximum prescribed sentence was 20 years’ imprisonment. That offence — like all the other offences committed by the applicant — occurred in the context of extreme violence engaged in by the applicant towards his defenceless victim.
Counsel further contended that the circumstance, that charge 7 only related to one instance, while charge 3 was a representative charge relating to two instances, did not mean that the judge was obliged to impose a lower sentence on charge 7 than on charge 3. The offending in charge 7 occurred in the context of the whole incident. It involved the applicant forcibly inserting his fingers into the complainant’s vagina causing her pain. Those factors provide an adequate explanation of why the judge imposed the same sentence on charge 7 as he imposed on charge 3.
Counsel further contended that the orders for cumulation were well within range, taking into account that the applicant was sentenced as a serious sexual offender. His Honour was obliged to give primacy to the protection of the community, and to give effect to the presumption of cumulation specified in s 6E of the Sentencing Act. The horrific ongoing nature of the event required the judge to order substantial cumulation, in order to adequately reflect the true enormity of his offending.
Counsel contended that the non-parole period, of 15 years, was within range, in light of the gravity of the applicant’s offending. That period adequately took into account the applicant’s prospects of rehabilitation.
Counsel further submitted that the delay, between the commission of the offences, and sentencing, was not a mitigating factor. Rather, the applicant should be held to account for the consequences of his criminal actions. In the intervening period, the applicant had been at liberty, and as such he received a benefit from the fact that his criminal actions had not been detected during that period. Accordingly, he should not be given a further benefit by a reduction of his sentence by reason of the delay.
Counsel for the respondent acknowledged that in Stalio v The Queen[21] the Court stated that, in sentencing an individual after a substantial period of delay from the time of the offending, the principle of equal justice requires that regard be had to sentencing practices at the time of the offence. However, as the High Court has made plain in DPP v Dalgliesh (a pseudonym),[22] sentencing practices are only one of a number of factors which a sentencing judge is required to take into account. In Shawcross (a pseudonym) v The Queen in which this Court, discussing Dalgliesh, observed that a court is not constrained to sentence in accordance with current sentencing practices where a sentence, imposed in that way, would not meet the demands of justice.[23] Further, counsel submitted, the sentences in the cases that were referred to in the plea do not indicate that the sentences imposed on the applicant, including the total effective sentence, were outside of the range of sentences indicated by sentencing practices at the time of the offending. Counsel also noted that, pursuant to s 5(2)(b) of the Sentencing Act, current sentencing practices are relevant to the determination of the applicant’s sentence in the present case. For that purpose he drew the Court’s attention to a number of recent sentencing decisions involving serious sexual offences.[24]
[21](2012) 46 VR 426, 440 [53] (citations omitted) (‘Stalio’).
[22](2017) 262 CLR 428 (‘Dalgliesh’).
[23][2018] VSCA 295, [70].
[24]DPP v Za Lian [2019] VSCA 75; DPP v Morris [2015] VSCA 155; Pilgrim v The Queen [2014] VSCA 191; R v Parton [2007] VSCA 268; R v Welsh [2005] VSCA 285; DPP v Drake [2019] VSCA 293.
The victim impact statement
Before we analyse the competing arguments made in respect of ground 1, it is relevant to refer to the victim impact statement of the victim, FH, that was received on the plea. In our recent decision in Fichtner v The Queen, we described the significance, in a case such as this, of victim impact statements, in the following terms:
Those statements demonstrate the significant harm and pain caused to each of those victims as a result of the offences that were committed against them by the applicant. By referring to them, we do not engage in an impermissible exercise of retributive justice. Nor, by doing so, do we permit sympathy and other similar emotions to overwhelm good judgment. Rather, the victim impact statements in this case, and in any such case, are relevant and important as a salutary reminder of the profound trauma and harm occasioned to each of the victims as a result of the offending in the case, and which was the direct and foreseeable consequence of the applicant’s offending.[25]
[25]Fichtner v The Queen [2019] VSCA 297, [58] (‘Fichtner’).
In her victim statement, FH commenced by noting that the predominant reaction that she suffered, as a result of the applicant’s offending, was that of overwhelming fear. She stated:
Fear has had the biggest impact on me, where without thinking about it, something occurs in my daily life and all of a sudden, I am paralysed and can’t move. Even now, if someone walks up behind me and I realise they are there, I just crumble. Even now I won’t go down a supermarket aisle if there’s a man there. I am hyper vigilant of my surroundings all the time. I struggle to sit in rooms with my back to the door. This offending is still there every day and I feel a great loss of the real me.
In that vein, FH described how, when her son visited her, she felt great fear, which she considered was ‘probably the worst thing’. She acknowledged in her statement that all the men in her life had been kind to her, but the actions of the applicant had shattered her relationships with men. As a result, in the business that she conducts, she has had difficulty dealing with male sales representatives.
In addition, as a consequence of the offences, FH suffered a number of physical symptoms, which the doctors originally suspected might be chronic fatigue or fibromyalgia. In fact, in light of more recent medical knowledge, it appears that her symptoms were those of post-traumatic stress disorder. Her health issues made it more difficult for her to recuperate from the offence.
Ground 1 —Analysis and Conclusions
In order to succeed, on the ground that the sentences imposed on charges 4, 6 and 7, the total effective sentence and the non-parole period, are manifestly excessive, the applicant must demonstrate that those sentences were wholly outside the range of sentencing options available to the judge. Accordingly, we must be persuaded that the sentences are so excessive as to bespeak some error in the exercise by the judge of his sentencing discretion, notwithstanding that the applicant has not identified any specific error in his Honour’s reasons for sentence (apart from that contended for under ground 2).[26]
[26]Clarkson v The Queen (2011) 32 VR 361, 384 [89]; DPP v Macarthur [2019] VSCA 71, [58].
In determining whether the sentences were manifestly excessive, the relevant starting point is an assessment of the gravity of the offences committed by the applicant, and of his level of culpability and moral responsibility for those offences.
Apart from contending that the whole of the offending was encapsulated in one continuous episode, senior counsel for the applicant did not submit that the offending, committed by the applicant, was other than most serious. Nor was it put, on the plea or on this application, that the applicant’s moral culpability could be mitigated by any relevant aspect of his personal circumstances. In particular, it was not established, and not contended, that the applicant at the time of the offending suffered from any relevant mental or psychiatric impairment. Although the applicant did have a disadvantaged upbringing, it was not contended — and no evidence was proffered to establish — that that upbringing had, in any material manner, played a causative role in the conduct in which the applicant had engaged in committing the offences in this case.[27]
[27]Cf Bugmy v The Queen (2013) 249 CLR 571.
On any view of the facts, the objective gravity of the offending, and the applicant’s moral culpability for it, was of an extremely high level. At the time of the offences, the applicant’s innocent victim, FH, was in her own home, where she was entitled to feel safe and secure. The applicant entered those premises as a trespasser. Over the following two hours, he subjected her to repeated acts of sexual assaults and rapes which could only be described as utterly traumatic and horrifying. At the time of those offences, FH was entirely defenceless and at the applicant’s mercy. In the two hours that followed his intrusion into her home, the applicant violated her intimate person in a manner which was callous, degrading, and painful. He deliberately intimidated FH in a manner which was intended to, and which did, terrify her.
Although all of the offences occurred in one episode, nevertheless each successive act that was the subject of a charge was a separate crime committed by the applicant against FH. The fact that they occurred in the course of one continuous incident must not obscure the gravity of the applicant’s offending, and of each individual offence that he committed. On each occasion upon which the applicant, in that event, committed an offence, he did so by way of a conscious, deliberate choice to violate the person of his victim. His resort on each occasion to violence and force against a harmless and defenceless woman was an act of sheer cowardice. He was well aware that the victim was screaming, terrified and in pain. In the course of committing the offence that was the subject of charge 3 (attempting to insert his finger into her anus), and the first aspect of the offence that was the subject of charge 5 (inserting his finger into her anus), the pain that was inflicted by the applicant on FH was so intense that she screamed in agony. The applicant’s offending was sadistic, cruel and callous.
In addition, each successive offence committed by the applicant took place in the context in which, in the same incident, he had committed the acts and offending that preceded that offence. In particular, the offences that were the subject of charges 5, 6 and 7 were committed after, and in the context of, the assaults and offending that immediately preceded those offences. As the Court pointed out in Director of Public Prosecutions v DDJ,[28] repetition of sexual abuse is likely to make the victim more fearful each time that it will happen again. It also makes the offender progressively more aware of the victim’s suffering. In both respects, the offender’s culpability is heightened.
[28](2009) 22 VR 444, 452 [32].
FH, having been already subjected to a series of degrading, painful and traumatic assaults on her person, suffered further abuse the subject of charges 5, 6 and 7. To view each successive offence in that light is not to engage in an exercise of double punishment. Rather, it is to properly characterise each particular offence in light of what preceded it, taking into account the appalling suffering to which the victim had already been subjected to by the applicant.
As we have noted, three of the charges — charges 3, 4 and 5 — were representative charges. The principles, relating to sentencing in respect of such charges, are well established. In respect of each of those charges, the applicant was not to be punished for the represented offences. However, on the other hand, the sentencing judge was entitled to take into account the whole of the context of the offending, including the conduct that was represented in the representative charge.[29]
[29]R v SBL [1999] 1 VR 706, 726 [70] (Batt JA), 724–5 [65] (Ormiston JA). See also R v CJK (2009) 22 VR 104, 113–14 [58] (Warren CJ); Browne (a pseudonym) v The Queen [2015] VSCA 274, [72]–[78] (Robson AJA) (citations omitted); Fichtner [2019] VSCA 297, [74] (citations omitted).
As we have mentioned, on each occasion on which the applicant offended during the incident, he committed an offence that was the product of a conscious, deliberate choice by him to engage in that conduct. Throughout the episode he used his victim as the object of his sexual pleasure and gratification. He persisted until he had achieved the gratification that he sought. Throughout the whole incident he showed no concern whatsoever for the harm and cruelty that he was inflicting on his victim.
As the victim impact statement of FH graphically illustrates, the offences committed by the applicant were calculated to, and did, cause severe and lasting emotional, psychological and physical pain to FH. The applicant, by his offending, has, in a material respect, destroyed an important and irreplaceable part of FH’s life. That type of harm inflicted by him is irreparable. For his own degraded purposes he took that part of her life from her.
The offences committed by the applicant, individually, and collectively, struck at the most basic norms and values of a civilised and decent society. On any view of the facts, the applicant’s offending from an objective point of view must be characterised as being extremely serious. As we have noted, the applicant was not able to rely on any relevant factor relating to his psychological status or his background, which could in any way have mitigated the very high level of his moral culpability.
For those reasons, we consider that the judge was correct to characterise the seriousness of the applicant’s offending as ‘very grave … to the upper end of the spectrum’, and his moral culpability as being high.[30]
[30]Reasons [64].
Nor do we consider that the assessment by the judge, of the objective gravity of the offending was affected by error of the kind contended for by the applicant under ground 2. Properly understood, the reasons for sentence reveal no breach of the principle that, ordinarily, an offender’s previous convictions are not relevant to an evaluation of the objective gravity of the offences in question. That principle was first referred to by the High Court in Veen [No 2].[31] It has been referred to and applied in a number of decisions of this Court.[32]
[31](1988) 164 CLR 465, 477 (Mason CJ, Brennan, Dawson and Toohey JJ).
[32]See, eg, R v O’Brien [1997] 2 VR 714, 718 (Charles JA); Dirbass v The Queen [2018] VSCA 272, [48]; Lim v The Queen [2019] VSCA 182, [48]–[50] (Croucher AJA, with whom T Forrest JA agreed).
In referring to the applicant’s previous convictions, his Honour was not confining his remarks to an assessment of the objective gravity of the offending. In the course of the passage in which those remarks occurred, the judge stated:
Your entire criminal history is relevant to my understanding of who you are, your character, your prospects and the risks you present. However, I make clear that you cannot be and you are not here re-punished for your prior and subsequent crimes.[33]
[33]Reasons [41].
Having briefly summarised the applicant’s previous convictions, the judge noted that he ‘had a propensity for violence and breaking into premises’.[34] He noted that the applicant had not learnt a lesson from his previous sentences and they had not deterred him.[35] It was for that reason that the judge considered that the applicant’s criminal history added to his assessment of the gravity of the applicant’s ‘offending’ in November 1985.[36]
[34]Ibid [44].
[35]Ibid [45].
[36]Ibid [46].
In other words the judge was assessing not just the objective gravity of the applicant’s offending, but also his moral culpability for it. As stated in Veen No 2, and as recognised in successive cases, the previous convictions of an offender may be relevant to a proper evaluation of the moral culpability of an offender. The fact that an offender has been involved in previous offences may well place his or her level of moral culpability for a particular offence at a higher level than if that offence had been committed by an offender who had not previously contravened the law.
It must be remembered that sentencing reasons are, for good reason, expressed and delivered orally in the second person. They are not to be examined, on appeal, as if they were the carefully crafted words of a piece of legislation. In ordinary parlance, assessing the seriousness of a person’s offending properly involves an assessment of both its objective gravity and the offender’s moral culpability for it. Since, however, those two concepts do have a particular connotation in sentencing, it would be preferable if sentencing judges, in the future, were to avoid the kind of shorthand expression utilised by the sentencing judge in this case. We hasten to add that that observation is not intended as a criticism of the sentencing judge, whose reasons were detailed, comprehensive and thorough.
As we have mentioned in oral argument senior counsel for the applicant did not contend that any of the individual sentences — and, in particular, those imposed on charges 4, 6 and 7 — were manifestly excessive. That approach was understandable. The submissions that had been advanced in the written case were, in our view, without merit. Charge 4 (rape with aggravating circumstances) was a charge that was representative of four occasions. The individual act of rape itself was most serious. It followed the act of digital penetration of the applicant’s anus, which had occasioned her excruciating pain. The fact that the act was not an isolated single instance of rape — which itself was bad enough — but, rather, occurred in the context of three additional rapes well justified the imposition of the sentence of ten years’ imprisonment.
The sentence of six years on charge 6 was, plainly, well within the range of sentences available to the sentencing judge. The conduct of the applicant the subject of that charge was disgusting and depraved. By the time the applicant committed the offence, he had already subjected his victim to a number of degrading acts. Viewed in the context of what had preceded the offence, the sentence of six years’ imprisonment for charge 6 was entirely appropriate. Indeed, as we have noted, in oral argument, senior counsel for the applicant correctly accepted that that sentence was not manifestly excessive. For the same reasons, the sentence, of three years’ imprisonment, in respect of charge 7 was in the circumstances appropriate, and not manifestly excessive.
The principal focus of senior counsel’s submissions was the orders for cumulation, and the total effective sentence.
As a consequence of the applicant’s subsequent convictions for sexual offending in 1988 and 1995, he fell to be sentenced, on each of charges 3 to 7 inclusive, as a serious sexual offender. As a result, s 6E of the Sentencing Act was applicable. That section provides that ‘unless otherwise directed by the Court’, each term of imprisonment, imposed on a serious offender for a relevant offence must be served cumulatively on any other sentence imposed on that offender.
The relationship — and indeed the tension — between the legislative policy manifested in s 6E and the established sentencing principle of totality has been considered in a number of cases. In McL v The Queen, McHugh, Gummow and Hayne JJ, in their joint judgment, stated (in respect of the legislative predecessor to s 6E):
The need for judges not to compress sentences is especially important where the accused person is a ‘serious sexual offender’ within the meaning of s 16(3A) of the Sentencing Act, and similar provisions. Section 16(3A) gives effect to a legislative policy that serious offenders are to be treated differently from other offenders. It was plainly intended to have more than a formal effect, which is the effect it would frequently have if its operation was subject to the full effect of the totality principle. Given the terms of s 16(3A), the scope for applying the totality principle must be more limited than in cases not falling within that section. The evident object of the section is to make sentences to which it applies operate cumulatively rather than concurrently. The section gives the judge a discretion to direct otherwise. But the object of the section would be compromised and probably defeated in most cases if the ordinary application of the totality principle was a sufficient ground to liven the discretion.[37]
[37]McL v The Queen (2000) 203 CLR 452, 476–7 [76].
In similar terms, Redlich JA in Gordon v The Queen stated:
[The] tension between the policy underlying s 6E and the principle of totality is difficult to reconcile. Authority has thus far provided no clear guidance as to the circumstances in which the statutory presumption of full cumulation under s 6E should override the principle of totality. However, it may at least be said that as the objective gravity of the total offending increases, so will the degree of cumulation which is ordered, thereby producing a total effective sentence which will more closely correspond with both the legislative policy underlying s 6E and the principle of totality.[38]
[38][2013] VSCA 343, [74].
Applying those principles, we consider that the orders for cumulation made by the sentencing judge were entirely appropriate. As we have stated, each of the acts of offending by the applicant compounded the overall objective seriousness of the totality of his offending, and exacerbated the suffering and injury that he inflicted on his victim. Taking into account the gravity of the offending, and in particular that which constituted charges 5, 6 and 7, and giving weight to the underlying policy evident in s 6E of the Sentencing Act, the orders for cumulation properly reflected the extent to which the offending, on each occasion, added to the gravity of the overall episode, and to the applicant’s moral responsibility for it. As mentioned, on each occasion he chose to continue to violate his victim, notwithstanding her continual protests and the pain which he knew he was subjecting her to.
The total effective sentence of 19 years’ imprisonment and the non-parole period of 15 years do constitute stern punishment for a man in his mid-50s. There were some mitigating circumstances put in his favour, namely, his plea of guilty (albeit quite late), and the fact that serving the sentence will be rendered more burdensome by reason of his psychiatric condition and his anxiety about his ageing mother. The applicant’s relatively young age at the time of the offending (23 years) was also a relevant mitigating factor, although, as the judge correctly observed,[39] the weight to be attributed to it was significantly reduced in view of the seriousness of the offending for which he was sentenced.[40]
[39]Reasons [47].
[40]DPP v Lawrence (2004) 10 VR 125, 132 [22] (Batt JA, with whom Winneke P and Nettle JA agreed); Azzopardi v The Queen (2011) 35 VR 43, 57 [44] (Redlich JA).
Nevertheless, we are satisfied that the total effective sentence was within the range of sentencing options reasonably open to his Honour. In a case involving offending of such seriousness, the sentencing purposes of general deterrence, denunciation and specific deterrence must be given appropriate, if not pre-eminent, weight. It was necessary that the sentences be sufficient to express the condemnation by the Court, and society, of this egregious behaviour. The principle of general deterrence was of particular significance. It was important that the sentence makes it clear that any person who may be inclined to engage in conduct of this kind will, when brought to justice, lose his (or her) right to be free within our community for a long period of time.
In addition, in light of the subsequent offences committed by the applicant, and the seriousness of the offending in this case, the sentencing purpose of specific deterrence was also of relevance.
In that regard, the applicant’s subsequent convictions were relevant to an assessment of his prospects of rehabilitation.[41] They were also relevant, because they demonstrated that, during the decade that followed the offences in this case, the applicant did not, for some time, repent or undertake a process of reform.[42] While, as counsel for the applicant has emphasised, the applicant has (apart from one blemish in 2015) not been in conflict with the law for almost two decades, nevertheless, in light of the gravity of his offending in this case, and the nature and seriousness of his subsequent offences, the judge was correct to find that the applicant remained ‘a danger to the community’.[43] In those circumstances, the considerations of specific deterrence, and protection of the community, were relevant to the determination of the sentences to be imposed on the applicant.
[41]Rout v The Queen [2016] VSCA 126, [42].
[42]R v Rumpf [1988] VR 466, 475 (McGarvie J, with whom Young CJ and Murray J agreed); DPP v Rongonui (2007) 17 VR 571, 580 [37], 581 [41] (Maxwell P); Rootsey v The Queen [2018] VSCA 108, [8] (citations omitted).
[43]Reasons [101].
On a related issue, counsel submitted that the judge ought to have moderated the sentences imposed on the applicant because of the long period of delay between the commission by the applicant of the offences and the time when he was sentenced. Counsel contended that, as a consequence of that delay, the applicant, as a 56 year old mature man, fell to be sentenced for a crime that he had committed more than three decades ago, when he was 23 years of age.
It is accepted that, in an appropriate case, delay, between the commission of an offence and the sentencing, may be a relevant mitigating circumstance. For example, where it can be demonstrated that, in the meantime, the offender has embarked on a process of significant reform, the weight to be given to the sentencing purpose of specific deterrence might be substantially ameliorated. Similarly, if, as a result of the effluxion of time, an offender has suffered significant ill-health, so that a sentence of incarceration would be more burdensome than otherwise, that factor might lead to a moderation of the sentence imposed on the offender.[44]
[44]See, eg, R v MWH [2001] VSCA 196, [18] (Callaway JA) (citations omitted).
Neither authority nor principle would, however, support the submission advanced by counsel for the applicant that a long delay, per se and without more, should lead to a moderation of sentence, purely because as a result of that delay the offender is significantly older than at the time of the offending.[45] In the present case, the applicant evaded justice, and lived with impunity, for more than thirty years, because his identity as the offender could not be established during that period. It would be incongruous to suggest that, having had the benefit of living those thirty years at liberty, the applicant should now be accorded a sentencing benefit by reason of that delay.
[45]R v Glennon [1993] 1 VR 97, 126; R v Nikodjevic [2004] VSCA 222, [21] (Ormiston JA) (citations omitted).
The final question raised by ground 1 is whether the non-parole period of 15 years was manifestly excessive. In the applicant’s written case, the principal point was that the non-parole period constituted 79 per cent of the head sentence. Senior counsel for the applicant argued that, in light of the applicant’s age, the non-parole period of 15 years would be ‘crushing’, since he would not be eligible to be released on parole until he was 71 years of age.
The principles relating to the fixing of a non-parole period have been discussed in a number of authorities. For the purpose of determining the issues raised in this application, they may be shortly stated. Essentially, the purpose of a non-parole period is to provide some mitigation of the effect of a head sentence imposed on an offender, so as to allow for the prospect of rehabilitation of the offender into society through the process of a grant of parole. In that way, the fixing of a non-parole period is directed not only to the interests of the offender but also to those of the community, in ensuring that, after a period of incarceration, the offender is safely rehabilitated into society.
The sentencing judge’s assessment of the offender’s prospects of rehabilitation is, therefore, an important consideration in the fixing of a non-parole period. At the same time, the non-parole period must be sufficient to reflect the gravity of the offence and the offender’s subjective culpability. In particular, the non-parole period must be adequate to properly fulfil the sentencing purposes of general deterrence, denunciation, specific deterrence and protection of the community.[46]
[46]Bugmy v The Queen (1990) 169 CLR 525, 532 (Mason CJ and McHugh J), 537 (Dawson, Toohey and Gaudron JJ); R v VZ (1998) 7 VR 693, 698–9 [15] (Callaway JA), 700 [22] (Batt JA); DPP v Josefski (2005) 13 VR 85, 94 [43] (Callaway JA, with whom Maxwell P agreed, in relation to the applicable principles, not the outcome) (citations omitted) (‘Josefski’); Kumova v The Queen (2012) 37 VR 538, 542–3 [14], 544 [19] (Nettle JA), 545–6 [27]–[28] (Redlich and Osborn JJA) (citations omitted) (‘Kumova’).
While for offences which may attract a head sentence of less than 10 years, non-parole periods of between 60 per cent and 75 per cent of the head sentence may be relatively common, nevertheless there is no ‘usual’ non-parole period for any offence or category of offence. In an individual case, a ratio outside that range might invite a degree of appellate scrutiny. But there is no set or fixed formula. Further, quite obviously, the ratio that is common for less serious offences, might not be appropriate for offences that attract longer head sentences. Otherwise, there would be excessively long periods of parole.[47]
[47]Josefski (2005) 13 VR 85, 94 [43] (Callaway JA, with whom Maxwell P agreed, in relation to the applicable principles, not the outcome) (citations omitted); Kumova, 541–3 [10]–[15] (Nettle JA), 545 [26] (Redlich and Osborn JJA); Romero v The Queen (2011) 32 VR 486, 493 [25] (Redlich JA); McLean v The Queen [2018] VSCA 209, [18] (Whelan and Kyrou JJA).
Applying those principles it cannot be maintained that the non-parole period of 15 years’ imprisonment was manifestly excessive. The sentencing judge assessed the applicant’s prospects of rehabilitation as being not ‘forlorn’ and not ‘entirely bleak’.[48] For good reason, the applicant did not challenge that evaluation. In the context of the gravity of the offending in the present case, and the applicant’s serious subsequent offences, the judge was clearly correct to have substantial reservations about his prospects of rehabilitation.
[48]Reasons [98].
As we have said, the sentencing purposes of specific deterrence and protection of the community remained significant in the fixing of the applicant’s non-parole period. Further, in light of the most serious offending committed by the applicant in this case, and his high level of moral culpability for it, it was important that the non-parole period be adequate to vindicate the important sentencing purposes of general deterrence and denunciation.
In those circumstances, the parole period of four years was sufficient and appropriate to fulfil the relevant sentencing purposes and, at the same time, to allow for a sufficient period in which the applicant might, if the Parole Board deemed appropriate, be released on parole, in order to ensure his successful reintegration into society.
Finally, in considering ground 1, we have considered the sentencing decisions referred to by counsel as demonstrating the relevant current sentencing practices. That issue is somewhat complex in cases such as this case, in which the offending took place a number of decades previously.
In Stalio, the Court identified two relevant propositions in respect of that question. First, the phrase ‘current sentencing practices’, in s 5(2) of the Sentencing Act, relates to present sentencing practices (and not practices that were current at the time of the offending).[49] Secondly, however, the concept of equal justice requires that regard be had to sentencing practices at the time of the offence, if those practices can be demonstrated to have required the imposition of a materially lesser sentence for like offences.[50]
[49]Stalio (2012) 46 VR 426, 432 [9], 432–3 [11].
[50]Ibid 432 [9], 440–1 [52]–[54] (citations omitted); Bradley v The Queen [2017] VSCA 69, [62] (citations omitted) (‘Bradley’).
In respect of the first proposition, it is recognised that the reference to ‘current sentencing practices’ in s 5(2)(b) of the Sentencing Act extends beyond the actual sentencing result in a particular case, but also encompasses matters such as the weight and effect that is given to particular sentencing considerations in the exercise of the sentencing discretion. Thus, for example, the increasing prevalence of a particular form of offence might at the time of sentence have the effect that sentencing practices have altered, because of the need for greater emphasis to be given to the principle of general deterrence. On the other hand, increasing awareness, in recent decades, of the effects of mental impairment, and of the longstanding consequences of a dysfunctional and traumatic upbringing of a particular offender, have led to greater weight being given to those factors as mitigating circumstances.
In respect of the second proposition stated in Stalio, the Court in Bradley identified a qualification to the application of the principle of equal justice in cases in which the offending occurred decades before the offender is sentenced. The Court considered that, where it was the offender’s own conduct which made it impossible for him or her to be sentenced contemporaneously with the offending, the offender may not be entitled to seek to be treated as if his or her criminal responsibility had been established at the time of the offending.[51]
[51]Bradley [2017] VSCA 69, [123]–[124].
Each of the above principles is relevant in considering the previous sentences to which we have been referred. We also observe, as the High Court recently emphasised in Dalgliesh, that sentencing practices are only one of a number of factors which need to be taken into account in the exercise of the sentencing discretion. In identifying the relevant sentencing practice, it is important to bear in mind that previous sentencing decisions do not constitute precedents for the sentence that is to be passed in the instant case. In each case, the exercise of the sentencing discretion is necessarily the result of the balance — or synthesis — of a number of different, and frequently conflicting, factors which can vary significantly between individual cases.
That observation is particularly apposite to the present case. The nature of the offending in each of the cases to which we have been referred, and the circumstances of the particular offender, have varied quite significantly, as might be expected. The decisions to which we were referred on this application do, in a broad sense, give an indication of the parameters of the current sentencing practices that are in place at the present time. Importantly, having regard to the limited number of decisions put before the sentencing judge relevant to sentences at the time of the offences[52] (but which were not referred to on this application), it cannot be concluded that sentencing practices, for the type of offence under consideration, were materially different at the time of the offending (1985) than at the present time. It seems to us that the sentences imposed were in sufficient harmony with those practices, to comply with the principle of equal justice.
[52]R v Lakeland (Supreme Court of Victoria Court of Criminal Appeal, Phillips CJ, Marks and Hampel JJ, 19 November 1993); R v Aucello (Supreme Court of Victoria Court of Criminal Appeal, Young CJ, Crockett and Vincent JJ, 6 October 1988); R v Garcia (Supreme Court of Victoria Court of Criminal Appeal, Young CJ, Kaye and Brooking JJ, 14 November 1986).
For those reasons, the applicant has failed to demonstrate that the individual sentences imposed on him, the orders for cumulation, the total effective sentence or the non-parole period were manifestly excessive. On the contrary, for the reasons we have outlined, we consider that the sentences imposed by the judge were quite appropriate and just.
Conclusion
For those reasons, the application for leave to appeal against sentence must be refused.
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