N R v The Queen
[2013] VSCA 166
•27 June 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2011 0167
| N R | |
| Applicant | |
| V | |
| THE QUEEN | Respondent |
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JUDGES: | ASHLEY, HARPER and TATE JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 18 April 2013 | |
DATE OF JUDGMENT: | 27 June 2013 | |
MEDIUM NEUTRAL CITATION: | [2013] VSCA 166 | |
JUDGMENT APPEALED FROM: | DPP v [NR] (Unreported, County Court of Victoria, Judge Pullen, 11 September 2009) | |
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Criminal law – Sentence – Sexual offences against children – Two presentments – Sentencing judge erred in treating as aggravating feature the fact that offending involved multiple complainants – No different sentence should be imposed – Appeal dismissed.
Criminal Law – Sentence – Whether judge gave sufficient attention to applicant’s age – Whether totality principle breached – Whether sentence manifestly excessive – Leave to appeal against sentence refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J McLoughlin | Victoria Legal Aid |
| For the Respondent | Mr P B Kidd SC | Mr C Hyland, Solicitor for Public Prosecutions |
ASHLEY JA:
I agree in the reasons of Tate JA, and with the orders which her Honour proposes.
HARPER JA:
I also agree with Tate JA.
TATE JA:
Introduction
On 11 September 2009 Judge Pullen of the County Court sentenced NR, (‘the applicant’), to a total effective sentence of nine years and five months’ imprisonment, with a non-parole period of seven years, which her Honour imposed:
a) On Presentment C0906660.1 (‘the first presentment’), after the applicant was found guilty of two counts of sexual penetration of a child under 16 (NH) committed in 1992 (Counts 4 and 5) and four counts of indecent act with a different child under 16 (TH), committed in 2001 (Counts 8, 9, 10 and 11); and
b) On Presentment C0906660.2 (‘the second presentment’), after the applicant was found guilty of two counts of indecent assault (Counts 1 and 2) and one count of buggery (Count 3) committed against a third complainant (GM) in 1972-1973.
It is convenient to refer to this sentence as ‘the 2009 sentence’ and the offending in respect of which it was imposed as ‘the 1972-2001 offending’.
On 8 December 2011, Judge Cotterell sentenced the applicant in respect of convictions of six charges of buggery which related to earlier offending that had occurred between 1962 to 1968 (‘the earlier offending’). Her Honour imposed a sentence of eight years and four months’ imprisonment with five years to be served cumulatively on the previous sentence. She fixed a new total effective sentence of 14 years and five months’ imprisonment with a non-parole period of ten years’ imprisonment. It is convenient to refer to this as ‘the 2011 sentence’.
The applicant applied for leave to appeal against conviction in respect of the earlier offending, leave to appeal against the 2011 sentence and leave to appeal against the 2009 sentence.
On 21 June 2013 this Court granted leave to appeal against conviction in respect of the earlier offending, treated the appeal as instituted and heard instanter and allowed the appeal. The convictions sustained by the applicant were quashed and the 2011 sentence was set aside. The Court directed that a new trial be had and remanded the applicant in custody pending the new trial.
There remains the question of the disposition of the application for leave to appeal against the 2009 sentence.[1]
[1]Nettle JA determined, on the papers, to grant leave on one ground and the applicant then renewed his application for leave with respect to the grounds that were rejected. See further below.
The grounds of the application for leave to appeal against the 2009 sentence
The applicant relied on five grounds in his application for leave to appeal against the 2009 sentence:
(1) the judge erred in treating as an aggravating factor the fact that the offending involved multiple complainants;
(2) the judge failed to pay sufficient attention to the applicant’s age of 64 years;
(3) the judge breached the totality principle, as it applies to an offender of the applicant’s age, by cumulating too much of one or more individual sentences on others;
(4) the judge failed to achieve the degree of cumulation which she intended because, although ordering that the other individual sentences be cumulated on the base sentence imposed on Count 3, she omitted to state expressly that they were also to be served cumulatively on each other;
(5) the sentence is manifestly excessive.
On 11 November 2011, Nettle JA granted leave to appeal against the 2009 sentence with respect to Ground 1 but refused leave to appeal on the other grounds. The applicant (it is convenient to continue to so describe him, despite the grant of leave that was made on one ground) elected to renew his application for leave to appeal on Grounds 2-5. On 18 April 2013 the Court heard the application for leave to appeal on those grounds, together with the appeal in respect of Ground 1, and together with the application for leave to appeal against conviction with respect to the earlier offending and the application for leave to appeal against the 2011 sentence. As I mentioned above, on 21 June 2013 the Court delivered judgment with respect to the earlier offending.[2]
[2]NR v The Queen [2013] VSCA 155.
At the hearing on 18 April 2013, the applicant abandoned Ground 4 of the proposed grounds of appeal against the 2009 sentence.
Circumstances of the 1972-2001 offending
Presentment C0906660.1
In April 1992, the applicant was aged 47 and NH was aged 15. The applicant was a friend of NH’s (and TH’s) family. On ANZAC day that year, after being at the Moama RSL Club, the applicant and NH left in the applicant’s ute. The applicant drove to an area known as the ‘bush spot’, parked the ute and got out of the driver’s side and urinated. NH rolled over onto his back, pulled his pants down, and the applicant spat into his hand and masturbated himself. NH’s legs were straight up in the air and the applicant penetrated NH’s anus with his penis (Count 4).
After a couple of minutes, the applicant told NH to roll onto his belly and he did so. The applicant masturbated again, then continued to penetrate NH’s anus with his penis (Count 5).
On a date between 1 January 2001 and 16 July 2001, the applicant, who was driving a vehicle at the time, touched TH’s penis on the outside of his clothing using his knees to control the steering wheel. That lasted for 10 to 20 seconds. TH yelled at the applicant to stop and tried to fight the applicant off (Count 8).
On the same day, after they had left Rochester, the applicant did the same thing again to TH. TH tried to fight the applicant off but the applicant stopped him with his hand. (Count 9).
Later that day, as they drove to Echuca, the applicant leaned over and stroked TH’s penis on the outside of his clothing. TH tried to fight him off by yelling, kicking and screaming ‘Get off me, stop that’. The touching lasted for approximately 30 seconds (Count 10).
Later still that day, just before they arrived back at TH’s home, the applicant leaned over and rubbed TH’s penis. TH tried to stop him, so the applicant grabbed his hands and said ‘Don’t tell anyone about this’, and, ‘when you’re older, you’re going to have a big one.’ These events lasted for approximately one minute (Count 11).
Presentment C0906660.2
On a date between 1 January 1972 and 31 December 1972, the applicant took GM on a drive. At one stage, the applicant allowed GM to drive the car. At that time, the applicant learned over, groped GM in the groin area and tried to unbutton or unzip his trousers in order to get his hand on GM’s penis. GM said he resisted and applied the brakes of the vehicle causing it to stop. The applicant laughed it off as a joke (Count 1).
On another date between 1 January 1972 and 31 December 1972, the applicant invited GM into his home in Echuca. In the lounge room, the applicant undid GM’s trousers and began to masturbate him by rubbing his hand along GM’s penis, and he continued until he ejaculated (Count 2).
On another date between 1 January 1972 and 31 December 1972, GM accompanied the applicant in his vehicle to Red Gum Swamp looking for signs of pigs. They talked about sex. The applicant grabbed GM, undid his pants, pulled them down, turned GM around and forced him onto the ground. GM gave evidence that he did not agree to this activity. The applicant penetrated GM’s anus with his penis (Count 3).
The 2009 Sentence
With respect to the 2009 sentence, the individual sentences, orders for cumulation and total effective sentence were as follows:
Presentment C0906660.1 (the first presentment)
Count
Offence
Max Penalty
Ind’l Sentence
Cumulation
4
Sexual penetration of child under 16
10 years
3 years
18 months
5
Sexual penetration of child under 16
10 years
3 years
15 months
8
Indecent act with child under 16
10 years
12 months
6 months
9
Indecent act with child under 16
10 years
12 months
6 months
10
Indecent act with child under 16
10 years
12 months
6 months
11
Indecent act with child under 16
10 years
12 months
6 months
TES
4 yrs 9 months
Presentment C 0906660.2 (the second presentment)
Count
Offence
Max Penalty
Ind’l Sentence
Cumulation
1
Indecent assault
5 years
8 months
4 months
2
Indecent assault
5 years
8 months
4 months
3
Buggery
20 years
4 years
4 years (Base sentence)
TES
4 yrs 8 months
Total sentence, both presentments: 9 years 5 months’ imprisonment
Non-parole period: 7 years’ imprisonment
Ground 1 – Aggravating circumstance
The applicant submitted that the sentencing judge found it to be an aggravating factor of his offending that he had offended against multiple complainants. He relied on the following passages of her Honour’s sentencing remarks:[3]
[3]Reasons for Sentence (Judge Pullen), (‘Sentencing Reasons’) [26], [96].
There is no doubt the circumstances of your offending in relation to each of the three complainants for which you are to be sentenced are very serious indeed and as I have stated, involved multiple complainants. This was conceded by your counsel as an aggravating feature. Also conceded was the breach of trust in relation to the three complainants.
…
Mr Buxton [defence counsel] conceded that there were aggravating features, including breach of trust and multiple complainants involved in your offending. He urged that any sentence I imposed upon you not be crushing, bur rather encourage you to rehabilitate whilst in custody and under the supervision of the Parole Board upon your release. He urged I take into account principles of totality and proportionality which, of course, I do.
The applicant conceded that it is true that defence counsel on the plea acceded to this approach. However, it was submitted, that the sentencing judge and defence counsel were in error in treating the fact of multiple complainants as an aggravating factor on sentence.
The applicant argued that it was the duty of the judge to impose an appropriate sentence on each count that contained an offence described by each complainant. The fact that there were complainants other than any particular complainant could not cause the offending against the instant complainant to be seen as aggravated. If there is but one complainant, it might (depending on the circumstances of the case) be open for an offender to submit in mitigation that the offending was isolated. Such submission would be foreclosed if there was rampant offending against one complainant, however, or if there were numerous complainants. But foreclosure of a submission in mitigation is not synonymous with treating a factor as aggravating. As such, it was contended, while it could never have been put on behalf of the applicant that his offending was isolated, it could not (by the same token) properly be concluded that the simple fact of multiple complainants aggravated the applicant’s offending on any particular count. It was conceded that the fact of multiple complainants may be relevant to the question of rehabilitation.
The applicant further submitted that, although the individual sentences given with respect to each count were unexceptionable, the error was relevant to the degree of cumulation imposed, which in each case, with the exception of Count 3 (the base sentence), and Count 5, was 50 per cent of the individual sentence. The cumulation in respect of Count 5 was almost 50 per cent (15 months cumulation in respect of an individual sentence of three years).
Nettle JA, in granting leave to appeal on Ground 1, noted that the Crown accepted that, if the judge was properly to be taken as having treated the fact of multiple complainants as a factor which aggravated the gravity of individual offences, her Honour was in error. The Crown contended, however, that given the judge’s very considerable experience and the stark obviousness of the supposed error, it was most unlikely that her Honour treated the multiplicity of complainants in that manner. It is far more likely, it was said, that the judge referred to the multiplicity of complainants as an aggravating feature in the broad sense of adding to the overall criminality of the applicant’s offending, and thus that there was no error involved in describing it as aggravating.
Nettle JA also observed that the judge is an experienced criminal trial judge whom it may be supposed was unlikely to have made an error of the kind contended for. He also noted that, as Warren CJ warned in R v CJK,[4] a judge should be cautious about the use of terms such as ‘aggravating’ in sentencing and particularly cautious about the way in which other offences may be taken into account in assessing the nature and gravity of individual offences.
[4](2009) 22 VR 104, 113, 115 [58]–[66].
In the paragraphs of the sentencing reasons extracted above, the judge twice referred to the multiplicity of complainants constituting an ‘aggravating feature’ in a manner which, on one possible construction of her sentencing remarks, was directed to the assessment of the nature and gravity of the offences. It may be that her Honour intended nothing more than that the multiplicity of complainants aggravated the overall criminality of the offending, or was identified as relevant to the question of the prospects of the applicant’s rehabilitation, or the question of specific deterrence.
In my opinion, the reading contended for by the applicant is open and the error is made out. The expression ‘aggravating feature’ is used in a context where it may be referring to a factor treated as relevant in the imposition of an individual sentence with respect to a particular complainant.
Nevertheless, I do not consider that a different sentence should be imposed[5] because, in my view, the degree of cumulation fixed by her Honour was open given the nature and gravity of the individual offences. In particular, I consider that the degree of cumulation was open by reason of the discrepancy in age between the applicant (aged 47) and NH (aged 15) in respect of Counts 4 and 5, and, in respect of Counts 8, 9, 10 and 11, the discrepancy in age between the applicant (then aged 56) and TH (aged 10), and the applicant’s refusal to stop the offending conduct despite TH yelling, kicking and screaming. In my view, the degree of cumulation was also open with respect to Counts 1 and 2 (Count 3 being the base sentence), in particular by reason of the determination of the applicant to persist with his conduct despite the resistance by GM in respect of Count 1, and the element of grooming which the applicant engaged in with respect to GM[6]on Counts 1 and 2 (Count 2 also having the feature of having occurred on a separate occasion from that of Count 1).
[5]See Criminal Procedure Act 2009, s 285.
[6]Sentencing Reasons, [20], [21],[28], [97].
I reject Ground 1.
Ground 2 – Advanced age
The applicant submitted that the advanced age of an offender can be a significant mitigating factor.[7] It has the effect that any term of imprisonment fixed represents a significant proportion of any life that is left to live. It was submitted that, because the applicant was 64 years’ of age at the time of sentencing, the sentences that were imposed ought to have been moderated, to some degree, accordingly.
[7]R v AMP [2010] VSCA 48, [52]-[58]; R v Iles [2009] VSCA 197, [17]-[20], [31]-[35]; R v RGG [2008] VSCA 94, [29]-[42].
The Crown maintained that there was no error as there was no evidence placed before her Honour specifically engaging the principle in relation to the diminished life expectancy of an elderly offender and, in any event, the applicant was not a man in his 70’s or even late 60’s.
In my view, the error is not made out. The judge had full regard to the applicant’s age of 64 years, his state of health (which was sound) and his present psychological condition.[8]
[8]Sentencing Reasons, [31], [50]-[53], [66]. The judge was well aware of the applicant’s age: see also [69], [106].
I reject Ground 2.
Ground 3 - Totality
Ground 3 was that the judge breached the totality principle, as it applies to an offender of the applicant’s age, by cumulating too much of one or more individual sentences on others. Reliance was placed by the applicant on the fact that the offences the subject of Counts 4 and 5 on the first presentment took place as part of the same course of conduct and yet the judge cumulated half of the sentence imposed on Count 4 and, as mentioned above, almost half the sentence imposed on Count 5. Similarly, the offences the subject of Counts 8 to 11 occurred as part of the same course of conduct over a period of a single day, in the course of a single excursion in a car and yet the judge cumulated half of each sentence; and, again on the second presentment, the judge cumulated half of each of the sentences imposed on Counts 1 and 2. The applicant submitted that, in the result, despite the fact that, at least in some instances, the offending comprising several of the counts was part of the same course of criminal conduct, her Honour cumulated about half of each other sentence on the base sentence imposed on Count 3.
In response, the Crown submitted that the starting point for any assessment as to totality is an inquiry as to where the base sentence sits in terms of the range available for that offence. The Crown argued that the base sentence imposed on Count 3 was at the low end of the range given the maximum penalty and the fact that a trial was conducted and took place in the absence of significant mitigating factors. All victims were required to give evidence at trial, and two victims were cross-examined at the trial hearing. Furthermore, inasmuch as the applicant stood to be sentenced as a serious sexual offender, there was a presumption that the sentences imposed on other counts would be cumulated.[9]
[9]Sentencing Act 1991, s 6E.
Although the presumption as to cumulation is subject to the principle of totality, the order for cumulation made in relation to the sentence imposed on Count 4 reflected the fact that the offence was an act of sexual penetration against a different victim to the victim in respect of the base sentence (Count 3); the acts which comprised the offences the subject of Counts 8 to 11 were separated in time, albeit over the course of one expedition, and the victim protested on each occasion. It would be wrong to treat crimes committed over a short period of time as amounting to a single course of criminal conduct because ‘in merging all the crimes into one course of conduct there [would be] considerable risk that the total criminality would be undervalued’.[10] Furthermore, Counts 1 and 2 related to different acts of offending separated in time and place and each added to the victim’s debasement.
[10]DPP v BAB [2002] VSCA 93, [49] (O’Bryan AJA).
Given those features of the offending conduct, in my opinion the cumulation ordered did not have the result that the total effective sentence infringes the principle of totality.
I reject Ground 3.
Ground 5 – Manifest Excess
The applicant argued that, in all the circumstances of the case, the orders for cumulation, the total effective sentence, and the non-parole period were manifestly excessive.
The Crown pointed to significant features of the case which demonstrated that the orders for cumulation, the total effective sentence and the non-parole period were all within the range of a sound exercise of sentencing discretion. These features included:
a) the applicant was convicted after two fully contested trials in which he put the credibility of each victim in issue;
b) the applicant showed no remorse for his offending;
c)there was a very large disparity in age between the applicant and his victims: GM was 13 to 14 years old compared to the applicant’s 27 to 29 years; NH was 15 years old compared to the applicant’s 47 years; TH was 10 years old compared to the applicant’s 56 years;
d) the buggery the subject of Count 3 caused GM real pain;
e) there were elements of grooming;
f) there was a breach of trust in relation to NH and TH;
g) TH protested at the applicant’s conduct;
h) the applicant sought TH’s silence in order to avoid detection; and
i) the adverse effects on the victims were understandably profound.
I agree that these features indicate that the sentencing discretion was soundly exercised.
There is no doubt in my mind that the culpability of the applicant called for a term of imprisonment that adequately reflected the need for denunciation, specific deterrence, general deterrence and the protection of the community. I consider that the sentence imposed by her Honour reflected those principles and fell within the range of a proper exercise of the sentencing discretion.
Conclusion
I would refuse leave to appeal against sentence in respect of Grounds 2, 3, and 5.
With respect to Ground 1, I would dismiss the appeal against sentence.
The total effective sentence
As mentioned above, on 21 June 2013 the Court allowed the applicant’s appeal against conviction in respect of the earlier offending, quashed the convictions, and set aside the 2011 sentence (including the new total effective sentence of 14 years and five months’ imprisonment and the new non-parole period of ten years). In the light of those orders, the total effective sentence imposed on the applicant in respect of the 1972-2001 offending should be reaffirmed as nine years and five months’ imprisonment and the non-parole period fixed in respect of the 1972-2001 offending should be reaffirmed as seven years.
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