Pilgrim v The Queen
[2014] VSCA 191
•28 August 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2013 0244
| MICHAEL ALLEN PILGRIM | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | NETTLE, REDLICH JJA and ALMOND AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 27 May 2014 |
| DATE OF JUDGMENT | 28 August 2014 |
| MEDIUM NEUTRAL CITATION | [2014] VSCA 191 |
| JUDGMENT APPEALED FROM | DPP v Pilgrim (Unreported, County Court of Victoria, 27 August 2013, Judge Tinney) |
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CRIMINAL LAW – Sentence – Totality – Applicant sentenced to 23 years and six months with a non-parole period of 19 years for multiple charges including rape, abduction, stalking, false imprisonment, aggravated burglary, causing injury intentionally, theft of motor vehicles, possession of child pornography and possession of explosive substances – Whether individual sentences manifestly excessive – Whether individual sentences and orders for cumulation and concurrency infringe principle of totality – Total effective sentence manifestly excessive – Infringes principle of totality – Postiglione v The Queen (1997) 189 CLR 295; Azzopardi v The Queen (2011) 35 VR 43 considered – Appeal allowed – Re-sentenced to 18 years’ imprisonment with a non-parole period of 14 years.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr P J Matthews | Robert Stary Lawyers |
| For the Respondent | Mr B F Kissane | Mr C Hyland, Solicitor for Public Prosecutions |
NETTLE JA
REDLICH JA
ALMOND AJA:
Almond AJA delivered the judgment of the Court
The applicant, Michael Allen Pilgrim, pleaded guilty in the County Court to 12 charges comprising theft of motor vehicles, stalking, false imprisonment, possession of explosive substances, aggravated burglary, intentionally causing injury, abduction, rape and possession of child pornography. These offences were committed over a 13-month period between 11 June 2011 and 10 July 2012.
On 27 August 2013, the applicant was sentenced to a term of imprisonment of 23 years, six months, with a non-parole period of 19 years, formulated as follows:
Charges on Indictment Offence Maximum Sentence Cumulation 1 Theft of a motor vehicle [Crimes Act 1958 s 74(1)] 10 years [Crimes Act 1958 s 74(1)] 2 years 6 months 2 Stalking [Crimes Act 1958 s 21A(1)] 10 years [Crimes Act 1958 s 21A(1)] 2 years 6 months 6 months 3 False imprisonment [common law] 10 years [Crimes Act 1958 s 320] 3 years 9 months 4 Possession of explosive substances [Crimes Act 1958 s 317(4)] 5 years [Crimes Act 1958 s 317(4)] 9 months 3 months 5 Aggravated burglary [Crimes Act 1958 s 77(1)] 25 years [Crimes Act 1958 s 77(2)] 6 years 6 months 18 months 6 Causing injury intentionally [Crimes Act 1958 s 18] 10 years [Crimes Act 1958 s 18] 2 years 6 months 12 months 7 Abduction [Crimes Act 1958 s 55(a)] 10 years [Crimes Act 1958 s 55] 5 years 18 months 8 Rape [Crimes Act 1958 s 38(1)] 25 years [Crimes Act 1958 s 38(1)] 10 years Base 9 Rape 25 years 10 years 2 years 6 months 10 Rape 25 years 10 years 2 years 6 months 11 Rape 25 years 10 years 2 years 6 months 12 Possession of child pornography [Crimes Act 1958 s 70(1)] 5 years [Crimes Act 1958 s 70(1)] 6 months Concurrent Total effective Sentence:
23 years 6 months
Non-Parole Period:
19 years
Pre-sentence Detention Declared:
403 days
6AAA Statement:
30 years, with a non-parole period of 26 years
Other relevant orders:
1. All driving licences and permits to drive cancelled and disqualified for 12 months from obtaining any permit to drive or driving.
2. Confiscation Act 1997 s 78(1): disposal order.
3. Crimes Act 1958 s 464ZFB: retention of forensic sample.
4. Sentenced as a serious sex offender on charges 8-12.
5. Sex Offenders Registration Act 2004 s 11: sex offender registration order; s 34: reporting for life.
Circumstances of the offending[1]
[1]This summary is substantially derived from the prosecution summary on the plea hearing. Where reference is made to facts and circumstances which may disclose the commission of other possible offences the reference is solely for contextual purposes in line with the basis upon which the plea was conducted.
For six months prior to February 2011, the complainant, then a sex worker, met the applicant as a regular client about once a week. In February 2011, the complainant ceased sex work and entered into a committed relationship. After this occurred, the applicant became hostile towards the complainant and began initial preparations for the later offending. He obtained holograms to produce false driver’s licences, computer programs to make false identities, and specialist card printers to create false identity cards. He acquired knives, handcuffs and cable ties.
Using a false identity, on 8 June 2011, the applicant completed and signed an agreement with Hertz Rentals (Preston) for hire of a silver Ford XR-6 sedan valued at $20,000. The vehicle was due to be returned the following day but was never returned. This conduct relates to charge 1 (theft).
Once this vehicle was in his possession the applicant searched online car sale advertisements. After finding a similar registered vehicle he purchased registration plates which duplicated the registration plates of the advertised vehicle and made false registration labels to associate with the plates. The registration details were then changed on the hired vehicle to avoid apprehension.
On 28 August 2011, using another false driver’s licence, the applicant entered into an agreement with Europcar (Cheltenham) for hire of a Mitsubishi Canter truck, valued at $60,000. This vehicle was also due to be returned the following day but was never returned. This conduct also relates to charge 1 (theft).
In around November 2011, after a 10-month absence from the sex industry, the complainant resumed sex work and made contact with the applicant. She arranged an appointment and he directed her to attend a house at an address in Frankston South. They met and engaged in sexual activity for about 10 minutes. The applicant then forcibly attempted to handcuff the complainant. The complainant managed to talk her way out of being restrained but was not allowed to leave the property. A conversation ensued, during which the applicant alleged that the complainant owed him money. Although no debt existed, the complainant said that she would pay the applicant in an effort to placate him. The applicant said ’it’s not about the money.’ The complainant asked what he wanted from her. The applicant replied ‘I want to hurt you.’ The complainant pleaded with the applicant not to do so. For approximately six hours, the applicant sat blocking the only exit from the house refusing to allow the complainant to leave. During this time, the complainant believed the applicant was going to kill her. Eventually, the applicant allowed the complainant to leave. This conduct relates to charge 3 (false imprisonment). The complainant did not notify the police at the time.
After this incident, the applicant prepared to abduct the complainant. His planning was meticulous. He manufactured further false identity documents including false bank accounts. He researched torture and stress positions, how to construct a sound-proof room, the availability of secluded rural and rental properties, the best days and times to abduct someone, unarmed combat techniques, and the chemical composition of, and methodology for, making explosives and detonators. He obtained three magnetic GPS tracking devices and disguises including beards, wigs and moustaches.
On 16 April 2012, the applicant rented a house in Drouin using false references and a false identity. The house was situated on a secluded, unmade road on a large acreage with no close neighbours.
After taking possession of the house, the applicant constructed a small sound-proof space in a bedroom. He built a wooden frame secured to the floor, which was approximately a single mattress length and width. He lined the wooden frame with thick mattresses to create a sound-proof environment. He screwed a large metal eye bolt into the floor and placed a mattress over it. The space was approximately one metre high, forcing any occupant to crouch or lie down inside. It was completely dark inside.
On 26 April 2012, the applicant used a false identity and false bank account details to order various chemicals, chemical mixing equipment and protective clothing. The chemicals included sulphuric acid and nitric acid with high levels of purity. These chemicals and associated equipment are used in the manufacture of home-made explosives. The applicant also ordered a 2.5 litre bottle of chloroform. These items were delivered to an address in Dandenong, where the applicant lived for a short period of time. This conduct relates to charge 4 (possession of an explosive substance).
On an unknown date, the applicant located the complainant’s vehicle. He placed two GPS tracking devices on the vehicle and began to track and note her movements from his computer. This tracking was an integral part of his plans to abduct the complainant. This incident relates to charge 2 (stalking).
The applicant also planted a GPS tracking device on a vehicle owned and used by the complainant’s younger sister. It is unknown how long the applicant had this vehicle under surveillance.
On 21 May 2012, in the final preparation stage for the further offending, using another false driver’s licence, the applicant entered into an agreement with Avis Car Rentals (Footscray West) for hire of a white Toyota Hi-ace van, valued at $24,000. The vehicle was due to be returned on 22 May 2012 but was never returned. The applicant selected this vehicle as it had blacked out rear windows. He put a mattress and curtains in the back so that he could conceal anyone within. This conduct again relates to charge 1 (theft).
On 22 May 2012, the applicant searched online and found the registration details of a vehicle similar to the Toyota van. From this information, he manufactured a false registration label and obtained a duplicate set of registration plates, which he put on the hired van to avoid apprehension.
On 5 July 2012, the complainant was at a friend’s house in Frankston. The male occupant, Mr S Thompson, and several other people were present. At about midday, the applicant attended the address using the stolen Toyota van. He had tracked the complainant to this location from the tracking device on her vehicle. The applicant was disguised. He wore a black peaked cap, dark sunglasses, a false beard and moustache, a high visibility vest and green cargo pants. He knocked on the front door of the house. When Mr Thompson answered the door the applicant immediately attacked him by tasering him to the chest and striking him on the head with a pistol. Mr Thompson suffered burn marks on his chest and head wounds. This incident relates to charge 6 (intentionally causing injury).
The applicant entered the house and found the complainant and two other people sitting on a couch. He said he needed money. At this point, the applicant was armed with the taser and a pistol. During this encounter, the applicant pointed a laser sight across the complainant’s stomach. One of the people present held out $30, which the applicant grabbed. This conduct relates to charge 5 (aggravated burglary).
The applicant told the complainant to get up as she was going with him. The complainant recognised the applicant’s voice. She believed that he was there in relation to the false debt that the applicant had mentioned months before. She tried unsuccessfully to lighten the mood and talk her way out of the situation. The applicant grabbed the complainant by the arm and led her out of the house. As she left, the complainant turned and mouthed ‘help’ to those left behind.
The applicant forcibly escorted the complainant to her car, which was parked outside the house. He told her to get into the passenger seat. He got into the driver’s seat. The applicant was still armed with the pistol and a knife. The applicant drove along the South Gippsland Highway towards the town of Tooradin, partly along unmade roads. At this time, the complainant believed she would be killed.
At one point, the applicant demanded the complainant’s mobile phone and threw it out of the car window. He then asked whether she had any more phones or anything that would send off electronic signals, and took a second mobile phone and a Wi-Fi device from the complainant and threw them out of the car window. He took the complainant’s credit cards and attempted to disable the electronic chips with a knife. He continued to drive the vehicle towards Tooradin, continually checking to see if they were being followed. Eventually, the applicant stopped the vehicle on the side of the road, handcuffed the complainant with her arms behind her back before getting her out of the car. He then removed two small black Velcro pouches from under either side of the vehicle, telling her that they were ‘trackers’. He said he had been tracking the complainant for weeks.
The applicant then placed the complainant in the boot of the vehicle. He used three cable ties to bind her legs. This resulted in the complainant lying on her side in the boot of the vehicle. The applicant then placed a chloroform impregnated cloth over the complainant’s mouth in an attempt to render her unconscious. The complainant breathed the fumes in, causing her to become lightheaded. The applicant then took the cloth away and questioned whether the complainant had any heroin in her system before telling her not to scream. He then said, ’you’d better not play up, because I really feel like carving someone up today’. The applicant then shut the boot of the vehicle and drove off.
At some point, the applicant refuelled the car and drove along unmade roads, doing numerous three point turns. This continued for some time until the applicant pulled over and stopped. He opened the boot, cut the cable ties off the complainant and allowed her to sit in the front seat, remaining handcuffed. The applicant told her, ’life’s a bitch, isn’t it, unlucky for you’. At this stage, the complainant believed the applicant planned to kill her. The applicant continued to drive the vehicle until after sunset, when he drove to the house in Drouin. This conduct relates to charge 7 (abduction).
The applicant led the complainant into the house, handcuffed. She was seated in a room on a mattress. Her ankle was padlocked to a chain which was attached to an eye bolt on the floor. She was provided with a blanket and the applicant placed a heater and television in the room. The applicant told the complainant he was not going to hurt her, but he was going to rape her. She asked if he planned to kill her. He said, ’no, I’m planning on keeping you here and using you’. She asked if he was going to let her go, and he said that he was not going to let her go. He also said, ’if you try and hurt yourself … I’ve got a [tracker] on the Jeep Cherokee and I will hurt your sister’. The complainant believed this was a reference to her sister’s car and that if she tried to escape or harm herself, the applicant would locate and harm her younger sister. The applicant told the complainant he was going to go on a rampage, that he planned to abduct women, bring them to the house, use them and control them with drugs, and that if the police came, he would shoot at them and ’hopefully take one down’.
Later that night, the applicant told the complainant to take her clothes off. He took the chain off the complainant’s ankle, asked if she was going to cooperate, watched her undress and then replaced the chain. He told her to get on top of him and vaginally penetrated her with his penis. He ejaculated inside her vagina. The complainant cooperated with the applicant due to fears for her life and the life of her sister. At some later time, which the complainant believed was on Friday 6 July 2012, the applicant moved her to the soundproof cubicle he had created, referring to it as the ’cubby house’. The complainant was put there without a mattress and chained to the floor. She became extremely cold, so the applicant provided a mattress for her to lie on. The complainant believed the applicant then left the house for a period of time.
After returning to the house, the applicant again raped the complainant by penetrating her vagina with his penis. Again, he ejaculated inside her. Whilst this occurred the complainant remained chained to the floor. After the rape, the complainant observed blood between her legs, on her clothing and on the mattress. This conduct, together with the earlier rape, relates to charge 8 (rape).
During this period, the complainant became disoriented, She had no means of telling the time. The applicant kept the blinds drawn, making it impossible for the complainant to keep track of days or times. He kept the complainant under constant watch, with alarms secured on the entries and exits of the premises. The complainant was allowed to eat cereal and two minute noodles, and to use the bathroom.
The effect on the complainant of being restrained in the cubicle was such that on the next occasion the applicant was to leave the premises, the complainant begged him not to leave her there, telling him he could gag her, put her in the boot or anything he wanted, but that she did not want to be left in there. The applicant informed the complainant that he would have to leave her there when he went to Melbourne for a couple of hours, but he would put the address of where she was being held in his underwear so that if anything happened, she could be found. The complainant asked him to show her before he did that, adding if he left her there, she would starve. The applicant replied, ’yes, you will’. This caused the complainant to have intense fear as to her likelihood of survival.
One night the complainant asked for cigarettes and the applicant relented. He handcuffed her, put her into the passenger seat of the car, drove to Warragul, where he went to a service station, refuelled and bought the complainant a packet of cigarettes. The applicant told the complainant he wanted to get his van from Frankston so he could abduct more women. When they returned to the house in Drouin, the complainant was again chained to the floor. She remained chained to the floor for the majority of her stay there.
Throughout her captivity, the applicant made a number of comments to the complainant which made her fear for her life. He commented that: he had been in prison in France; he had been to Brazil, where he was caught attempting to import drugs; he had been involved in the trafficking of women in Europe; he had been deported back to Australia; he had been ’tracking’ girls from Gotham City and Daily Planet (both brothels); he had ’never had any trouble throwing anyone else in that room before’, (apparently referring to the soundproof cubicle that the complainant had been held in); he had a liking for explosives and expressed a desire to ’suicide by cop’; he was concerned he was being pursued for a chemical purchase where he had purchased too much of a particular chemical; and that he had previously disposed of bodies by creating a briquette coffin around them and using a large propane gas flare to torch the briquettes. He showed the complainant a propane gas flare in the kitchen of the premises.
Over five days of captivity, the applicant raped the complainant vaginally on three further occasions. On each occasion, the complainant was chained to the floor. The applicant ejaculated inside her on all but the last occasion, which occurred on Monday 9 July 2012. This conduct relates to charges 9, 10 and 11 (rape).
On Monday 9 July 2012, the applicant said he was going to the city. The complainant begged him not to put her back into the cubicle. The applicant sat by the window until dark before going to bed. The complainant was so scared that the applicant would wake during the night and leave her there, chained up, that she forced herself to remain awake whilst the applicant slept.
At about 2:40am on Tuesday 10 July 2012, the applicant awoke. After gathering some items, he put the complainant in the car and handcuffed her to the seatbelt. The applicant was armed with a taser and a knife. The applicant drove the complainant back to Frankston, where he parked her vehicle behind the stolen Toyota van. The applicant told the complainant he was going to do a straight transfer and put the complainant into the rear of the van. However, he could not start the van due to a flat battery, so he transferred items of property and some food from the van into the complainant’s car, saying it was ’her lucky day’. The applicant then drove the complainant to St Kilda. He parked her car next to a silver Ford sedan. The applicant moved the complainant into this car after opening it with a key and transferring the items he had taken from the van. From under the bonnet, he removed a black case containing identification documents. The applicant then drove to St Kilda, to Albert Park and then to an area overlooking a soccer field, where they waited until approximately midday. Eventually, the applicant drove back to the house in Drouin. Again he chained the complainant to the floor.
The applicant then offered to get some food and drove with the complainant to a McDonald’s outlet in Warragul and purchased food. On this occasion he did not handcuff the complainant. During this trip the complainant began to suffer severe stomach pain. The pain was obvious and the applicant noticed. They returned to the house and the applicant again chained the complainant to the floor. Though extremely hungry, the complainant was in too much pain to eat the food. Again, she noticed she was bleeding from the vaginal area. She showed the applicant, telling him she had a terminated pregnancy earlier in the year. The applicant then called an abortion clinic, which was closed. The applicant commented, ’I know that I’ve done wrong by you and I’ve hurt you, but I’ll take you to the doctors or a hospital’. The complainant told him that she would call the after-hours nurse, believing if he took her to a hospital, the applicant would hurt her or someone else there. The applicant had told her throughout the ordeal that if she tried to warn anyone in public, he would ’take them down and take her down too’, and that he was not afraid of hurting anybody.
The applicant then put the complainant back into the car and began to drive. During the journey the complainant called the after-hours nurse, breaking down, and talking about her life since terminating the pregnancy. The nurse advised her that she needed counselling. During this call, the complainant tried to make out that the nurse was telling her she needed to attend the hospital immediately. She told the applicant this, to which he replied, ’I can’t go down like this, I can’t go down helping someone out, I’ve put too much time and effort into this’. In an attempt to calm the applicant and possibly aid her escape, the complainant told the applicant she was not much good to him like this, to which the applicant agreed.
The applicant drove until they were in the vicinity of the West Gippsland Hospital in Warragul. He pulled over to the side of the road and allowed the complainant to get out of the car. The applicant asked her if she would come back with him. The complainant attempted to placate him, telling him to give her his phone number and maybe they would talk later. The applicant asked if she would tell the police, to which she replied, she did not know, and just wanted her family to be safe.
At approximately 3:00pm on 10 July 2012, the complainant entered the hospital in a very distressed state. She remained there for a period of 13 days.
Throughout her ordeal, the complainant believed she would never be released and believed the applicant to be fully capable of causing harm to her. She told investigators that she had mentally prepared herself to die. Due to the comments made by the applicant, the electronic tracking of the complainant’s sister and the weapons the applicant had access to, the complainant experienced extreme fear for the safety of her family.
After leaving the complainant at the road side, the applicant returned to the house in Drouin, collected some belongings, then travelled to Kings Cross in New South Wales in the stolen Ford sedan. On 20 July 2012, he was detected by police in Kings Cross in New South Wales and arrested. Examination of his digital devices revealed that he had 12 images that constituted child exploitation material. This conduct relates to charge 12 (possession of child pornography).
The applicant was extradited to Victoria on Monday 23 July 2012. He was remanded in custody. He declined to be interviewed and refused to provide a forensic sample.
On 24 August 2012, the Magistrates’ Court granted an application to take a forensic sample. On 7 December 2012, the matter was listed as a committal mention at the Melbourne Magistrates’ Court and was booked in for a contested committal hearing on 20 March 2013. One week before the committal hearing date, the defence submitted a plea offer to the Crown. The offer was rejected, however, on 19 March 2013, and the applicant agreed to plead guilty to the 12 charges on the indictment. The following day, 20 March 2013, the matter proceeded as a hand-up brief at the Melbourne Magistrates’ Court, the applicant entered a formal plea of guilty and was remanded in custody.
At the plea hearing on 15 August 2013, the prosecutor proffered a sentencing range of between 19 and 22 years, with a non-parole period of between 16 and 18 years. On behalf of the applicant, it was submitted that a sentencing range of 15 to 16 years with a non-parole period of 11 to 12 years was appropriate.
Proposed grounds of appeal
By notice of application for leave to appeal against sentence, the applicant seeks leave to appeal on the following grounds:
(1)the sentences imposed on charges 2, 5, 6 and 8 to 11, the extent of the orders for cumulation, and the non-parole period imposed are manifestly excessive;
(2)the individual sentences and/or the orders for cumulation and concurrency infringe the principle of totality; and
(3)the learned sentencing judge erred in having regard to the prosecutor’s submissions as to the sentencing ranges for the individual charges, total effective sentence and their non-parole periods.
Submissions for the applicant
Counsel for the applicant submitted that the sentences imposed on charges 2, 5, 6 and 8 to 11, the extent of cumulation ordered and the non-parole period fixed were not reasonably open in all of the circumstances having regard to:
(a)the applicant’s pleas of guilty and other conduct which facilitated the course of justice;
(b)the application of the principle of totality;
(c)the applicant’s personal circumstances and ‘mixed’ motivation for the offences;
(d)current sentencing practices; and
(e)the circumstances of the offences.[2]
[2]R v Abbott (2007) 170 A Crim R 306, [13]-[16].
In particular, counsel for the applicant submitted that the sentencing judge did not give sufficient weight to the ways in which the applicant’s conduct facilitated the course of justice, notably his early plea of guilty, the applicant’s acceptance that the first charge of rape (charge 8) was a representative charge consisting of two instances of rape, and the admission of the applicant’s criminal record for offences committed in France. The fact that the applicant had facilitated the course of justice in these respects was acknowledged by the prosecution at the plea hearing.
The sentencing judge accepted that the applicant’s plea of guilty at an early stage had a ’strong utilitarian value’ and warranted an appropriate and significant discount because the complainant and witnesses had been spared the experience of having to attend court and the community had been spared the time, cost and effort associated with a contested hearing. Nevertheless, his Honour noted that the matter was listed for a contested committal and settled in the days leading up to the hearing; that the complainant was a required witness and doubtless would have had the unpleasant expectation of being called to testify.[3]
[3]DPP v Pilgrim [2013] VCC, [27].
Separately, his Honour acknowledged other respects in which the applicant had facilitated the course of justice, noting that he would pass a lesser penalty upon the applicant because of that fact.[4] There is no obvious error in his Honour’s approach to these matters.
[4]Ibid [29].
The individual sentences
We propose to make some brief observations as to the circumstances of the offending conduct and the individual sentences imposed. The theft of three motor vehicles from vehicle hire companies was carefully premeditated and executed. It involved the creation of false documents, false identities and false registration details. Three vehicles were involved, with a total value of over $100,000. In our view, the sentence of two years’ imprisonment in the context of a 10 year maximum is not excessive.
The stalking was sophisticated and pervasive. It involved a serious invasion of the privacy of the complainant over many months which included the fitting of electronic tracking devices to her vehicle. In our view, the sentence of 2½ years’ imprisonment in the context of a ten year maximum is not excessive.
The false imprisonment of the complainant for six hours in circumstances where the applicant forcibly attempted to restrain the complainant with handcuffs, falsely claimed the complainant owed him money, used menacing language which resulted in the complainant believing the applicant was going to kill her and prevented the complainant from leaving for approximately six hours is a serious example of this offence. In our view, the sentence of three years’ imprisonment in the context of a ten year maximum is not excessive.
The incident where the applicant intentionally caused injury involved the unprovoked use of a taser and the striking of the victim twice on the head with a pistol. The aggravated burglary would have been terrifying to the victims. This Court has recently had occasion to consider sentencing practices (in the context of confrontational aggravated burglary) and has emphasised the objective seriousness of home invasion offences and indicated that the sentencing practice should reflect the objective seriousness of this offence.[5] Bearing this is mind, in our view the sentences of 2½ years and 6½ years’ imprisonment respectively, in the context of maximum sentences of ten years and 25 years respectively, are not excessive. We must, however, be mindful that the sentence for the aggravated burglary does not involve punishment for the applicant’s conduct upon entering the premises, it being the subject of another charge.
[5]Hogarth v The Queen [2012] VSCA 302, [3], [6], [58], [62].
The abduction of the complainant following the aggravated burglary is unarguably a serious example of this offence involving forcible restraint with handcuffs, the complainant being placed in the boot of a car with cable ties binding her legs, the administration of chloroform, threats and removal of the complainant to a remote location. In our view, the sentence of five years’ imprisonment in the context of the ten year maximum is not excessive.
Likewise, there were successive rapes over a period of five days, each of which involved the complainant being chained to the floor in circumstances which induced in the complainant a state of extreme fear. These are very serious examples of rape which warrant a severe penalty. Allowing for the fact that charge 8 was a representative charge (involving two instances of rape) and for the fact that the applicant was required to be sentenced as a serious sexual offender, in our view the sentences of ten years for each charge in the context of a maximum term of 25 years are not excessive.
In summary, in our view, the individual sentences imposed by the sentencing judge are commensurate with their objective seriousness, the circumstances of the offending, proportional to the maximum penalties and consistent with current sentencing practice.
We consider that the real issue in this appeal is not whether the individual sentences are excessive but whether the aggregate sentence is excessive.
Grounds 1 and 2 - Totality
Grounds 1 and 2 overlap insofar as they relate to the issue of totality. On this ground, the applicant submitted that the aggregate sentence involves excessive orders for cumulation which infringe the totality principle and demonstrate a discrete error in the sentencing process.
In Postiglione v The Queen,[6] McHugh J said that totality principle requires the judge ’to ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved’ and that the application of the principle ’requires an evaluation of the overall criminality involved in all the offences with which the prisoner is charged’. Kirby J observed that this involves the sentencing judge looking at the product of the calculation of a sentence and then considering whether the resulting sentence needs further adjustment; that this involves ‘subtle considerations which defy precision either of description or implementation’ and ’will sometimes result in a lower sentence which might even fail to reflect adequately the seriousness of the crime in respect of which it is imposed’.[7]
[6](1997) 189 CLR 295, 307–308 (‘Postiglione’).
[7]Ibid 341.
In Azzopardi v The Queen,[8] Redlich JA considered the rationale underlying the totality principle:
An aggregate sentence must be arrived at that is sufficient punishment, but no more than is necessary to satisfy … those sentencing objectives [such as denunciation, deterrence, retribution, community protection and mitigatory matters]. It will then be proportionate to the offender’s overall criminality. If the aggregate sentence is not a just and appropriate measure of the total criminality, the sentencing judge will have assigned the incorrect weight to the various sentencing objectives in fixing the individual sentences or in the method of aggregation of the sentences or both.
[8](2011) 35 VR 43, [66] (‘Azzopardi’).
The question to be determined is whether the aggregate sentence imposed in this case falls outside the range of sentences reasonably open to the sentencing judge.[9] To succeed on the ground that a sentence is manifestly excessive ’the excess must be obvious, plain, apparent, easily perceived or understood and unmistakable. It must be so far outside the range of a reasonable discretionary judgment as to itself bespeak error.’[10]
[9]DPP v Karazisis (2010) 206 A Crim R 14; McPhee v The Queen [2014] VSCA 156, [10]–[11].
[10]Hanks v The Queen [2011] VSCA 7, [22].
In our view, the aggregate sentence imposed does fall outside the range reasonably open. In this case, we accept the applicant’s submission that the total effective sentence is at the uppermost end of the range of sentences imposed in recent times for offending where the principal offence is rape. This proposition is substantiated from a review of sentences from 2006 to November 2013 in this Court where rape was the principal offence.[11]
[11]Victorian Sentencing Manual – Overview of Rape Sentences in the Court of Appeal: Cases decided from 2006 to the present where rape was the principal offence, organised by head sentence (31.11.1.1); see also Sentencing Trends in the Higher Courts of Victoria, 2007-08 to 2011-12: Rape, No 145.
The total effective sentence imposed on the applicant exceeds the total effective sentence imposed on all but three offenders for whom rape was the principal offence for which they were sentenced. Two out of the three offenders who received longer total effective sentences pleaded not guilty to some or all of the charges they faced. Acknowledging that the other charges faced by these three offenders and their individual circumstances differed, it was nevertheless submitted that the sentences imposed on the applicant were manifestly excessive. Counsel for the applicant provided to the Court tabulated details of first instance rape and false imprisonment cases from the County Court which were not the subject of appeal, which supports the contention that the aggregate sentence is manifestly excessive.
Counsel for the applicant also relied upon the sentences imposed in the abduction, detention, rape cases referred to by the prosecutor at the plea hearing. The sentence imposed on the applicant substantially exceeds all but one of the sentences imposed in those cases.[12]
[12]R v Pitt (Unreported, Victorian County Court, 16 December 1999), 17 years, non-parole period 15 years; R v Cunliffe [2000] VSCA 146, 15 years, non-parole period 12 years; R v MDB [2003] VSCA 181, 12 years, non-parole period nine years; R v Welsh [2005] VSCA 285, 26 years, non-parole period 20 years; R v Forde [2006] VCC 1610, indefinite sentence, but a finite sentence of 21 years with a minimum of 17 years indicated; R v GJ [2008] VSCA 222, 10 years with a non-parole period of seven years.
Acknowledging that sentencing statistics are, at best, only a very crude guide, we accept that they may have some utility in provoking the instinctive reaction of a court which is asked to consider whether a particular sentence is manifestly excessive.[13] That said, each human situation is unique, and reference to current sentencing practices is not intended in any way to minimise that fact. Any analysis must also recognise the limitations on the use of comparable cases for the purposes of establishing an appropriate sentence in an individual case.[14] Such cases can provide only a general guide or impression as to the appropriate range of sentences and cannot be a substitute for the sentencing judge’s instinctive synthesis of the many individual factors in each case.
[13]R v Giordano [1998] 1 VR 544, 549 (per Winneke P); Russell v The Queen [2011] VSCA 147, [61] (per Kaye AJA).
[14]Stensholt v The Queen [2014] VSCA 171, [22]; Hudson v The Queen (2010) 30 VR 610, 616-9.
It may be observed that, despite the gravity of the offences in this case, there was no loss of life. The median total effective length of imprisonment for non-life sentences for murder for the period 2007 to 2012 was 20 years, which is significantly less than the applicant’s sentence.[15] Even a sentence of 20 years’ imprisonment for murder would ordinarily require the presence of some aggravating features or an absence of mitigating features.[16] The median total effective length of imprisonment:
·for rape for the period 2007 to 2012 was six years;[17]
·for aggravated burglary for the period 2008 to 2013 was three years;[18] and
·for causing injury intentionally for the period 2008 to 2013 was two years.[19]
[15]Sentencing Trends in the Higher Courts of Victoria 2007-08 to 2011-12 Murder, No 140.
[16]McPhee v The Queen [2014] VSCA 156, [14].
[17]Sentencing Trends in the Higher Courts of Victoria 2007-08 to 2011-12, Rape, No 145, 6.
[18]Sentencing Trends in the Higher Courts of Victoria 2008-09 to 2012-13, Aggravated Burglary, No 155, 6.
[19]Sentencing Trends in the Higher Courts of Victoria 2008-09 to 2012-13, Causing Injury Intentionally, No 158, 6.
In this case, it is not possible to identify precisely how the error in sentencing has occurred. The sentencing judge was thorough, and it is evident from his sentencing remarks that his Honour considered all relevant matters, including current sentencing practices. Whether he gave too much weight to aggravating factors, not enough weight to mitigating factors or misconstrued current sentencing practices is unclear. As this Court has recently said, it is unnecessary to seek to identify the reason why the sentence was imposed; that where a sentence is outside the range of sentences available, it will often be impossible to identify why that is so.[20]
[20]McPhee v The Queen [2014] VSCA 156, [15].
In this case, the principal offences were of a high level of seriousness for their respective categories, involved extensive pre-planning, a long period of captivity and rape in humiliating circumstances We do not propose to reiterate all of the sentencing considerations outlined by the sentencing judge save to note that the applicant facilitated the course of justice by pleading guilty at an early opportunity and by admitting his overseas record. At the time of sentencing the applicant was 34 years old with a criminal record limited to one court appearance in France, where he was convicted of carrying weapons and being in possession of pornographic and false documents. It follows that the applicant was sentenced as a first offender for offences of a sexual or violent nature.
Dr Carroll, consulting forensic psychiatrist, expressed the opinion that the applicant did not show signs or symptoms of mental illness or any clinical psychopathology but had an impaired capacity to appreciate to a normal degree the effects of his behaviour on others. He described the applicant as having a ‘mixed personality disorder’ with schizoid, avoidant and antisocial features’. Before the sentencing judge, the applicant specifically disavowed any reliance on any of the principles discussed in R v Verdins.[21] The applicant did not attempt to change that stance in making this application. The fact that the applicant had limited insight into the effect of his offending was properly taken into account by the sentencing judge as a relevant background matter.
[21](2007) 16 VR 269.
One matter which was not before the sentencing judge, and which is noted, is the submission made by counsel to this Court that since being sentenced the applicant has been receiving regular visits from his mother and is corresponding with his sisters. It was submitted that this represents a significant development given that the applicant had previously distanced himself from his family. The Court was also informed that the applicant has undertaken courses in study and has not been the subject of any disciplinary procedures in prison.
The applicant was sentenced as a serious sex offender for charges 8 to 12 pursuant to s 6E of the Sentencing Act 1991. Section 6E requires terms of imprisonment imposed on such offenders to be served cumulatively unless otherwise directed by the Court. Despite the constraints of s 6E, looking at the product of the calculation of the respective sentences, and the overall criminality of the offender in its context, we consider that the sentence on charge 5 is manifestly excessive and the aggregate sentence of 23 years and six months with a non-parole period of 19 years exceeds what is necessary to achieve the relevant sentencing objectives, and amounts to a material error. In the circumstances, we would grant the applicant leave to appeal on ground 1 and ground 2 and allow the appeal.
Ground 3 – Submission of sentencing ranges by prosecution
The plea in this matter was conducted before the decision in Barbaro v The Queen.[22] It is evident from the sentencing remarks that the sentencing judge received submissions from the prosecution as to the appropriate sentencing range. As the applicant has made out ground 1 (in part) and ground 2, it is unnecessary to determine ground 3.
[22](2014) 305 ALR 323; [2014] HCA 2.
Re-sentencing
In our view, save for the sentence for aggravated burglary, the individual sentences for the respective offences should stand, (including the base sentence of 10 years for the representative charge of rape). The sentence for aggravated burglary and the orders for cumulation on charges 1, 2, 3, 5, 6, 7, 9, 10 and 11 should be set aside. The scope for applying the totality principle in this case is more limited than it would otherwise be had the applicant not been sentenced as a serious sexual offender. Despite the statutory modification, it is still necessary to avoid imposing a sentence on an offender which infringes the principle of totality.[23]
[23]R v R H McL (2000) 203 CLR 452, 477; Beyer v The Queen [2011] VSCA 15, [15].
Taking this into account, we would re-sentence the applicant to a total effective sentence of 18 years with a non-parole period of 14 years formulated as follows:
Charges on indictment Offence Maximum Sentence Cumulation 1 Theft of a motor vehicle [Crimes Act 1958 s 74(1)] 10 years [Crimes Act 1958 s 74(1)] 2 years 3 months 2 Stalking [Crimes Act 1958 s 21A(1)] 10 years [Crimes Act 1958 s 21A(1)] 2 years
6 months
3 months 3 False imprisonment [common law] 10 years [Crimes Act 1958 s 320] 3 years 6 months 4 Possession of explosive substances [Crimes Act 1958 s 317(4)] 5 years [Crimes Act 1958 s 317(4)] 9 months 3 months 5 Aggravated burglary [Crimes Act 1958 s 77(1)] 25 years [Crimes Act 1958 s 77(2)] 4 years
9 months 6 Causing injury intentionally [Crimes Act 1958 s 18] 10 years [Crimes Act 1958 s 18] 2 years
6 months
6 months 7 Abduction [Crimes Act 1958 s 55(a)] 10 years [Crimes Act 1958 s 55] 5 years 12 months 8 Rape [Crimes Act 1958 s 38(1)] 25 years [Crimes Act 1958 s 38(1)] 10 years Base 9 Rape 25 years 10 years 1 year 6 months 10 Rape 25 years 10 years 1 year 6 months 11 Rape 25 years 10 years 1 year 6 months 12 Possession of child pornography [Crimes Act 1958 s 70(1)] 5 years [Crimes Act 1958) s 70(1)] 6 months Concurrent
We would affirm all other orders. Pursuant to s 6AAA of the Sentencing Act 1991, we declare that if the applicant had not pleaded guilty we would have imposed a sentence of 24 years with a non-parole period of 18 years six months.
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