Perry v The King
[2023] VSCA 218
•12 September 2023
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2023 0012 |
| BENJAMIN PERRY | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGES: | BEACH and WALKER JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 6 September 2023 |
| DATE OF JUDGMENT: | 12 September 2023 |
| MEDIUM NEUTRAL CITATION: | [2023] VSCA 218 |
| JUDGMENT APPEALED FROM: | [2022] VCC 2289 (Judge Murphy) |
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CRIMINAL LAW – Appeal – Sentence – Attempted rape, sexual assault and common assault – Sentenced to 3 years and 9 months’ imprisonment with non-parole period of 2 years – Whether sentence manifestly excessive – Sentences imposed on charge of sexual assault and two charges of common assault manifestly excessive – Application for leave to appeal granted – Appeal allowed – Applicant re-sentenced.
Lieu v The Queen (2016) 263 A Crim R 173 applied. Stafford v The King [2022] VSCA 229, DPP v Drake [2019] VSCA 293, DPP v Warnakulasuriye [2019] VCC 2070, discussed.
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| Counsel | |||
| Applicant: | Mr J Anderson with Ms S Stafford | ||
| Respondent: | Ms J Warren | ||
Solicitors | |||
| Applicant: | Sarah Pratt & Associates | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
BEACH JA
WALKER JA:
On 8 December 2022, the applicant, Benjamin Perry, pleaded guilty to one charge of attempted rape, one charge of sexual assault and two charges of common assault. The events leading to those charges occurred on two different dates. The applicant was 22 years old at the time of the offending, which occurred in November 2019 and January 2020. On 14 December 2022 the applicant was convicted and sentenced as follows:[1]
[1]DPP v Perry [2022] VCC 2289 (‘Reasons’).
Charge on Indictment
Offence
Max Penalty
Sentence
Cumulation
1 Attempted rape[2] 20 years 3 years Base 2 Common assault[3] 5 years 12 months 6 months 3 Sexual assault[4] 10 years 9 months 3 months 4 Common assault[5] 5 years 6 months Nil Total Effective Sentence: 3 years and 9 months’ imprisonment Non-Parole Period: 2 years Pre-sentence Detention Declared: 253 days Section 6AAA Statement: Total Effective Sentence 5 years
Non-Parole Period 3 years
[2]Contrary to Crimes Act 1958, ss 38(1) and 321M.
[3]Contrary to common law.
[4]Contrary to Crimes Act 1958, s 40.
[5]Contrary to common law.
The applicant now seeks leave to appeal against sentence,[6] on two proposed grounds,[7] as follows:
Ground 1 – The sentences imposed on the individual counts and the total effective sentence and the non-parole period are manifestly excessive.
Ground 2 – The total effective sentence, the non-parole period and/or the orders for cumulation on charges 2 and 3 infringe the principle of totality.
[6]The applicant also sought an extension of time within which to file his notice of application for leave to appeal. That application was not opposed and was granted by a judicial registrar on 24 April 2023.
[7]We shall refer to the proposed grounds as grounds, for convenience. We note that originally the applicant had sought leave to appeal on a third ground, alleging specific error by the sentencing judge, but that ground was abandoned at the hearing of the appeal.
For the reasons that follow, we would grant leave to appeal and allow the appeal on the basis that the sentences imposed on charge 2 (common assault), charge 3 (sexual assault), and charge 4 (common assault), were manifestly excessive. We would re-sentence the applicant as follows:
Charge on Indictment
Offence
Max Penalty
Sentence
Cumulation
1 Attempted rape[8] 20 years 3 years Base 2 Common assault[9] 5 years 4 months 2 months 3 Sexual assault[10] 10 years 3 months 1 month 4 Common assault[11] 5 years 2 months Nil Total Effective Sentence: 3 years and 3 months Non-Parole Period: 20 months Pre-sentence Detention Declared: 525 days Section 6AAA Statement: Total Effective Sentence 5 years
Non-Parole Period 3 years
[8]Contrary to Crimes Act 1958, ss 38(1) and 321M.
[9]Contrary to common law.
[10]Contrary to Crimes Act 1958, s 40.
[11]Contrary to common law.
Circumstances of the offending
The applicant was a member of the ‘Human Powered Vehicle’ sporting organisation, involving the riding and racing of recumbent tricycles. The organisation is affiliated with Drouin Secondary School, where the applicant attended school. The applicant met the complainant through that organisation.[12]
[12]Reasons, [2].
The complainant was 18 years old when her relationship with the applicant commenced in May 2019, when the applicant was 21 years old. When the relationship started the complainant was in her final year of school in Geelong. At the beginning of the relationship the applicant was flirtatious and affectionate, but as the relationship progressed he became increasingly violent and verbally and physically abusive.[13]
[13]Reasons, [2]–[3].
On Saturday 30 November 2019, the applicant and the complainant had been arguing because the applicant wanted to have anal sex with her and she refused. The applicant became violent, forcibly removed her clothing by roughly pulling off her shirt and pulling down her pants. The applicant then tried to insert his penis into the complainant’s vagina. The complainant tried to move away from him, but he grabbed her shoulder and used his fingernails to claw into her skin causing her immediate pain and preventing her from moving. The applicant continued to try and insert his penis into the complainant’s vagina, however she kept fighting him and moved her hips away before finally being able to fight him off. This conduct constituted charge 1 – attempted rape.[14]
[14]Reasons, [5].
The complainant managed to get away from the applicant and put some clothes back on. When she went to leave however, the applicant went into the kitchen and grabbed a knife, held it up and pointed it at her chest. He then threatened to slit his own throat if the complainant left him. The complainant did not want the applicant to hurt himself so went back into the applicant’s bedroom and sat on the end of the bed. After around 10 minutes the applicant entered the bedroom, walked over to her and, without warning, punched her to the face with a closed fist. The punch was with such force that the complainant felt immediate pain and fell back on the bed. The applicant then climbed on top of her and used his hands to grab her shoulders and push her hard into the bed. He then pushed the complainant by the shoulders into the wall causing her head to hit the wall. This in turn caused her to bite down on her lip, making it bleed. She then fell to the floor and the applicant left her there groaning in pain. He returned later and offered to take her to Warragul Hospital. The next day the complainant took photographs of her black eye and the claw mark to her shoulder, which she later provided to police. The punch to the face with a closed fist constituted charge 2 – common assault.[15]
[15]Reasons, [6].
On Tuesday 28 January 2020, the applicant tried to have sex with the complainant in his car. He touched her in a sexual way on her breasts and vagina on the outside of her clothing. This conduct constituted charge 3 – sexual assault.[16] When the complainant told the applicant ‘no’ he did not continue and they went back to his house.
[16]Reasons, [9].
At the house the applicant tried once more to have sex with the complainant by again touching her breasts and vagina over her clothing. The complainant fought him off by pushing him away and was trying to get away from him when he grabbed her by the arm and bit her on the arm. The biting of the complainant’s arm constituted charge 4 – common assault. The complainant took photographs of the bruising and bite mark on her arm and later provided them to police.[17]
[17]Reasons, [10].
The relationship between the applicant and the complainant ended in about May 2020. The complainant confided these events to her then boyfriend, who encouraged her to report the matter to the police, which she did. Initially the applicant denied the offending. He was arrested in February 2021 and remanded in custody until October 2021, when he was granted bail. He later offered to plead guilty to the assault charges, but not the charges of attempted rape and sexual assault. Ultimately the applicant pleaded guilty to those charges as well, just before trial.[18]
[18]Reasons, [11]–[13]
The sentencing judge’s reasons
After setting out the factual background, the sentencing judge dealt with the impact of the offending on the complainant. He observed, based on the victim impact statement, that the offending had a significant and continuing impact on the complainant. The judge then turned to the seriousness of the offences and the applicant’s moral culpability. Referring again to the facts of the attempted rape, his Honour observed that the applicant was older than the complainant and that he knew full well that she was not consenting to sexual intercourse on that day. He then observed as follows:
Your later conduct in threatening self-harm and then punching the complainant to the face can be referred back to reflect your intention and awareness of the non-consent and your anger at her exercise of her right to decline consent to intercourse.
Women in relationships are entitled to refuse consent. They do not have to fight off their partners. They should not be assaulted when they refuse consent. You are old enough to know that that was the position.[19]
[19]Reasons, [18]–[19].
The first passage referred to above is relied upon as involving an element of double punishment under cover of ground 1.
In relation to the charges of sexual assault and common assault in late January, the judge described these as ‘mirror[ing] the earlier event’, although his Honour accepted that these two charges were of a ‘lesser seriousness’. His Honour further observed that the offences took place in the context of a domestic relationship. He described the applicant’s moral culpability as ‘high’.[20]
[20]Reasons, [20]–[21].
The sentencing judge then set out the matters in mitigation, which were, in summary, as follows:[21]
(a)The applicant had an exemplary work ethic and impressive personal references from family, friends and his employer, who stated that he was prepared to engage the applicant after his release from custody. However, the judge observed that most sexual offending occurs in private and so people are not aware of sexual offending when they give testimony about people they know who are brought before the courts for sexual offending.
(b)The applicant had no prior convictions.
(c)The applicant had pleaded guilty, albeit late, warranting a perceptible amelioration of sentence, particularly in light of the COVID environment. The plea had significant utilitarian value as it meant that the complainant was not required to give evidence.
(d)The plea was also some evidence of remorse. Some of the people who gave references also indicated that the applicant was remorseful, although the judge observed that were was not ‘much evidence of victim empathy’.
(e)The applicant was a youngish offender, being 25 and a half at the time of sentencing. However, the judge correctly observed that the impact of youth diminishes with the seriousness of the index offending. The judge said that for a first offender, with no prior convictions, he would give significant weight to rehabilitation.
(f)There had been a significant delay of two and a half years since the applicant’s arrest, due to COVID and through no fault of his own. That meant the applicant had the charges hanging over his head for that time. He had not reoffended, and had not breached an intervention order in favour of the complainant in that time. These matters boded well for the applicant’s rehabilitation.
(g)The burden of the eight and a half months of imprisonment that the applicant had served during the pandemic was significantly more onerous than the same period of imprisonment in normal times. Further, while on remand the applicant’s grandmother had passed away and he was unable to attend her funeral.
[21]Reasons, [22]–[41].
The sentencing judge then considered current sentencing practices for attempted rape.[22] He distinguished the cases in which the combination sentence or a community correction order had been imposed for attempted rape, because he regarded the present offending as more serious. He observed that there were a number of cases where a head sentence with a non-parole period was imposed for attempted rape.
[22]Reasons, [43]–[46].
The sentencing judge then considered the various purposes of sentencing, and the parties’ submissions on these. Under the heading ‘Consideration’, the judge said as follows:
I have anxiously weighed the sentencing disposition in this matter. You do have the benefit of being a relatively youthful offender being dealt with for the first time in a higher court and with no prior convictions. It is a weighty matter to return an offender to custody after they have been on bail for a period of over 12 months. Further, your good employment record and prospects of rehabilitation, which I regard as good are such that a return to custody would impede your continuing progress to rehabilitation.
It was on that basis that I arranged for you to be assessed for a community corrections order and you have been favourably assessed.
Weighing against your counsel’s submissions are the seriousness of the offending on 30 November 2020, you were determined to engage in intercourse with the complainant. She successfully resisted your attempts. In a violent act subsequently, you punched her to the face. Notwithstanding your relative youth, at that stage you had been in a relationship with her for over six months and she had made her position perfectly clear on that occasion and this makes your conduct on that day utterly unacceptable.
As I have indicated, women are entitled to their bodily integrity and to choose when to engage in sexual events. Men must respect that and your conduct on this occasion must be utterly denounced. The sentence of the court must send a signal to all men, youthful or not, that sexual exchanges must be consensual. When women choose to say no, that must be respected and they are not to be retaliated against by way of acts of violence.
In relation to both these events, you were violent against this young woman and your conduct was demeaning. Your conduct has had a significant and continuing impact on her which must be considered in the sentencing synthesis.[23]
[23]Reasons, [56]–[60].
His Honour then sentenced the applicant as set out earlier in these reasons.
Grounds 1 and 2
At the outset of oral submissions, the applicant’s counsel indicated that he proposed to deal with grounds 1 and 2 together, both being directed to the questions whether the sentences imposed, the orders for cumulation, the non-parole period and the total effective sentence were manifestly excessive. We shall thus deal with grounds 1 and 2 together as if they constitute a single ground, of manifest excess.
The applicant’s submissions
The applicant accepted that the test of manifest excess is ‘stringent one’, but submitted that it is met in his case. He submitted that the exercise of the sentencing discretion here ‘produced a sentence lying outside the permissible range of sentencing options, in overestimating the gravity of the offending and failing to give adequate weight to the significant mitigating factors’. He pointed, in particular, to the following matters.
(a)The sentencing judge appeared to have treated the attempted rape as more serious because of the later threats and violence, including punching the complainant. But the punch was the basis for a separate charge on the indictment and thus should not have been ‘double counted’.
(b)In relation to charge 2 — common assault — the sentencing judge appears to have proceeded on the basis that all of the events in the bedroom constituted the charge of common assault. However, the particulars on the indictment were confined to the punch to the face.
(c)The individual sentences on charges 3 and 4 did not reflect the gravity of the offending:
A sentence of 9 months’ imprisonment for sexual touching over the clothes, that was of short duration, which ceased at the point the victim said no, against the background of consensual sexual relationship, well exceeds what could have been justified. Likewise, a sentence of 6 months’ is out of step with seriousness of an assault that consisted of a bite on the arm of short duration, after a struggle, resulting in minor bruising.
(d)The value of the applicant’s plea of guilty, which the sentencing judge accepted, was not reflected in the sentence imposed.
(e)The applicant’s youthfulness, which the sentencing judge accepted as requiring significant weight, was not reflected in the length of the sentence, in particular the non-parole period.
(f)There were numerous other ‘powerful mitigating factors’ that required a less severe sentence, including: good character; remorse; future availability of employment; the effect of delay and the burden of imprisonment during the pandemic.
(g)Current sentencing practices for attempted rape supported the contention that the sentence on that individual count is manifestly excessive.[24]
[24]The applicant referred to Stafford v The King [2022] VSCA 229 (‘Stafford’); DPP v Drake [2019] VSCA 293 (‘Drake’); DPP v Warnakulasuriye [2019] VCC 2070 (‘Warnakulasuriye’).
In relation to the principle of totality, the applicant submitted as follows:[25]
The orders for cumulation in relation to charges 2 and 3 fail to pay sufficient regard to the fact that all of the offending is against the one victim, occurring in the same relatively short period of time (a 2-month window), so as to form part of the same general sequence.
Further, the order for cumulation of charge 2 on charge 1, being 50% of the sentence of charge 2, does not appropriately acknowledge that the acts underpinning those charges are so closely related in time and subject matter as to be part of the same transaction. It is submitted that as charges 1 and 2 form a single transaction, it is not appropriate to have ordered this extent of cumulation.
The issues with the orders for cumulation contribute to a total effective sentence of 3 years and 9 months’ and a non-parole period of 2 years’ that offends the principle of totality.
The respondent’s submissions
[25]The applicant also submitted that the sentencing judge had failed to identify expressly how his Honour had given effect to the principle of totality, but accepted, correctly, that a failure to give reasons in that regard ‘is not an error in itself’. It is thus unnecessary to deal further with the fact that the judge did not expressly mention the principle of totality, other than to observe that the applicant’s counsel had emphasised issues of totality: Reasons, [55].
The respondent submitted that each of the sentences, the orders for cumulation, the total effective sentence and the non-parole period were within the range of sentences open to the sentencing judge in the present case. In relation to the attempted rape, the respondent submitted that this was a serious example of what is an inherently serious offence:
In the context of a “domestic” or intimate partner circumstance it involves a significant breach of trust and speaks to a misuse of power within that intimate relationship. Sexual violence within an intimate partner relationship is a particularly insidious and degrading form of domestic violence. As in any case of domestic violence, denunciation, just punishment and general deterrence have a role to play — and a significant one at that.
The respondent submitted that a sentence of 3 years — being 15 per cent of the statutory maximum — was well within range.
In relation to charge 3 (sexual assault) and charge 4 (common assault), the respondent accepted that this offending was of ‘lesser seriousness’, but submitted that the sentences imposed were open.
In relation to the cumulation ordered on charges 2, 3 and 4, the respondent observed that ‘only 9 months’ was added to the base sentence on account of these charges, being two physical assaults and one sexual assault. This was not, the respondent submitted, a case where the sentences for those charges ought be wholly concurrent; it was necessary to reflect the separate criminality of that separate offending. Whilst charges 1 and 2 were very close together in time, they were not so closely linked as to warrant no cumulation. Further, there was a 2 month ‘window’ between the first two offences and the second two offences, which warranted cumulation for a second episode of domestic violence.
In relation to the matters the applicant relied upon in mitigation, the respondent submitted that, although the applicant was a relatively youthful offender, he was not particularly immature. He finished high school with an ATAR in the 70s, he lived independently and he was in the workforce. Furthermore, his moral culpability for the offending was high, with nothing to moderate it. The applicant did not suffer from any intellectual impairment and was not affected by drugs or alcohol and the time of the offending. The only explanation for the offending was anger that the complainant would not have sexual intercourse with him.
As for the non-parole period, the respondent submitted that a non-parole period of 53.33 per cent of the total effective sentence was generous and on no view manifestly excessive.
Consideration
In our view the sentence imposed on charge 1, attempted rape, was entirely appropriate and comfortably within the range of sentences open to the sentencing judge for offending of this kind. The submission that this sentence was manifestly excessive must fail.
The offence of attempted rape is an objectively serious offence, as revealed by the maximum penalty the Parliament has imposed: attempted rape carries a maximum penalty of 20 years’ imprisonment.[26] Furthermore, as the respondent submitted, sexual violence within an intimate partner relationship is a particularly insidious and degrading form of domestic violence. Denunciation of such behaviour plays an important role in sentencing for this offending. In that regard, we agree with the trial judge’s remarks to the effect that the sentence imposed for such offending must send a signal that all sexual exchanges must be consensual.
[26]Crimes Act 1958, s 321P(1)(a).
The attempted rape in this case, occurring in the context of an intimate relationship and in circumstances where the complainant had made it very plain that she was not consenting to sexual intercourse, was a serious example of attempted rape. The applicant forcibly removed the complainant’s clothes, held her down leaving bruises on her skin and scratching her in the process, and attempted to force his penis into her vagina. The complainant was struggling to get away throughout the attack, and the events involved attempted rape, rather than rape, only because the complainant was able to fight herself free, not because the applicant made a decision to desist.
In concluding that a sentence of 3 years for attempted rape is appropriate, we have taken into account all the mitigating in factors, including the applicant’s guilty plea, his youth and his prospects of rehabilitation.
We have also considered the cases to which our attention was drawn, referred to as ‘current sentencing practice’ — Stafford, Drake and Warnakulsirye — but have found them to be of limited assistance. In both Stafford and Drake a sentence of 3 years’ imprisonment was imposed for the offence of attempted rape. In contrast, in Warnakulsirye a sentence of 5 years’ imprisonment was imposed for that offence. The applicant argued that in those cases the offending was more serious than in the present case. However, it is important to bear in mind the necessary limitations in deriving any current sentencing practice from an examination of the sentences that have been imposed in other ‘comparable’ cases. Comparable cases are not precedents. In Lieu v The Queen, this Court adverted to those limitations in the following terms:
Ordinarily, comparable cases are relevant to indicate or reveal the sentencing range for the offence which is under consideration. In that way, an analysis of comparable cases is directed to promoting consistency of sentences. However, ultimately, the consistency that is sought to be achieved is not some mathematical or numerical equivalence of sentences. Rather, the process is directed to achieving consistency in the application of relevant legal principles. For that reason, so-called ‘comparable cases’ are not precedents. In the context of sentencing, no two cases can be alike. The factors that inform the exercise of the discretion in each case, and the weight to be attributed to those factors, vary significantly in determining the sentence that is ultimately the product of the instinctive synthesis of the sentencing judge. Nevertheless, reviewed as a whole, ‘comparable cases’ may assist by revealing a possible range or pattern of previous sentences. However, the cases, to which we have referred, caution that examination of comparable cases does not have the consequence that a range or pattern of sentences, revealed by those cases, is necessarily correct, or that the upper or lower limits of those sentences are correct.[27]
[27](2016) 263 A Crim R 173, 186 [46] (Beach and Kaye JJA, Redlich JA agreeing at 175 [1]); [2016] VSCA 277.
The offence of attempted rape may be committed in a particularly wide range of circumstances, with widely differing levels of culpability and objective gravity. As a result, any attempt to identify a current sentencing practice that is relevant to the facts of a particular case may be quite elusive.
In the present case, the cases on which the applicant relied involved significantly different offending, with different mitigating and aggravating factors. In particular, none of them involved the attempted rape of a person’s intimate partner, with the associated breach of trust that is involved in such offending. Furthermore, the sentence for attempted rape was not the base sentence in these cases, which makes them of less assistance. Thus in our view they offer only very limited assistance in assessing the appropriate individual sentence for attempted rape in this case.
However, in our view ground 1 must succeed in relation to the individual sentences imposed on charges 2, 3 and 4.
The offending involved in charge 2 was undoubtedly serious. It was a gratuitous, violent punch to the face that the left the complainant with a black eye. It followed other uncharged violent conduct. Nonetheless, we consider that a sentence of 1 year imprisonment for this offending, with cumulation of 6 months, to be outside the range reasonably open to the judge in the circumstances of this case, bearing in mind the several mitigating factors on which the applicant can call.
We have reached the same conclusion in relation to charge 3. The offending alleged in that charge was described in the prosecution opening as the applicant touching the complainant in a sexual way on her breasts and vagina on the outside of her clothing while they were in the car. When she told the applicant ‘no’ he did not continue and they went back to his house. They were in an intimate relationship at the time.
While this was a sexual assault, in our opinion it was at the low end of the spectrum of such offending. The touching was, it appears, of short duration. The touching was over the clothing, not under it. No force was involved and the applicant stopped when the complainant expressly articulated her lack of consent. In our opinion, and given the applicant’s good prospects of rehabilitation and his relative youthfulness, a sentence of 9 months’ imprisonment was outside the range available to the judge for offending of this kind. That is so even though that offending occurred after the offending involving the attempted rape and the common assault.
We have also reached the same conclusion in relation to charge 4. Charge 4 involved the applicant biting the complainant on the arm and causing bruising. It was relatively minor in nature and a sentence of 6 months’ imprisonment was, in our opinion, outside the range of sentences available to the sentencing judge in all the circumstances.
It is then necessary to consider whether, despite the existence of error, ‘there is no reasonable prospect that’ this Court ‘would reduce the total effective sentence’.[28] Were that the case, this Court may refuse an application for leave to appeal. For the reasons that follow, we do not consider that to be the case. That is, in the re-exercise of the sentencing discretion, we would impose a lesser total effective sentence in relation to the offending.
[28]Criminal Procedure Act 2009, s 280(1)(b).
Resentencing
For the reasons explained above, we would not disturb the sentence of 3 years’ imprisonment imposed by the sentencing judge for the charge of attempted rape. The sentence for attempted rape will be the base sentence.
For charge 2, common assault, we would impose a sentence of 4 months’ imprisonment. We would order that 2 months of that sentence be served cumulatively upon the base sentence.
For charge 3, sexual assault, we would impose a sentence of 3 months imprisonment. We would order that 1 month of that sentence be served cumulatively upon the base sentence.
For charge 4, common assault, we would impose a sentence of 2 months. That sentence is to be served consecutively with the other sentences.
The total effective sentence will thus be 3 years and 3 months’ imprisonment. We consider this to be an appropriate total effective sentence in light of the principle of totality. We will order that the applicant must serve a period of 20 months before being eligible for parole. We declare that time already served under the sentence the subject of the appeal shall be reckoned as time served in respect of this sentence. We record that, but for his plea of guilty, we would have sentenced the applicant to a total effective sentence of 5 years’ imprisonment with a non‑parole period of 3 years.
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