R v Barnes
[2003] VSCA 156
•2 October 2003
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 317 of 2001
| THE QUEEN |
| v. |
| JOHN EDWARD BARNES |
---
JUDGES: | CALLAWAY, BUCHANAN and EAMES, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 2 September 2003 | |
DATE OF JUDGMENT: | 2 October 2003 | |
MEDIUM NEUTRAL CITATION: | [2003] VSCA 156 | |
---
Criminal Law – Indecent act with child under 16 and other offences – Application for leave to appeal against conviction following plea of guilty – R. v. Coffey [2003] VSCA 155 applied – Leave to appeal against conviction refused – Serious sexual offender – Whether disproportionate sentence should be imposed – Non-parole period where protection of community is principal purpose for which sentence is imposed – Crimes Act 1958, s.19 – Sentencing Act 1991, ss.5(2AA)(a), 6D, 6E, 16(3B), 18B.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P.A. Coghlan, Q.C., D.P.P. and Ms K. Judd | K. Robertson, Solicitor for Public Prosecutions |
| For the Applicant/Appellant | Mr M.J. Croucher and Ms M.S.K. Ingleton | Leanne Warren & Assoc. |
CALLAWAY, J.A.:
John Edward Barnes, who is now aged almost 71, comes before the Court as an appellant against sentence, leave to appeal having been granted by a single judge on 10th May 2002, and as an applicant for leave to appeal against conviction. For convenience I shall call him "the appellant".
He pleaded guilty in the County Court to five counts of committing an indecent act with a child under 16 (counts 1, 2, 3, 4 and 6), one count of possession of methylamphetamine (count 5), one count of administering a substance, specified as amphetamines, capable of interfering substantially with bodily functions (count 7) and one count of obtaining a financial advantage by deception (count 8). He admitted 128 previous convictions from 58 court appearances between December 1958 and December 1994. On the last occasion he had been convicted on one count of attempted rape, three counts of taking part in an act of sexual penetration with a child aged between 10 and 16, two counts of attempting to take part in such an act, three counts of committing an indecent act with a child under 16, two counts of indecent assault, one count of administering a drug for the purpose of sexual penetration, one count of possession of amphetamines and one count of possession of cannabis. He was sentenced to seven years' imprisonment with a non-parole period of five years, a sentence later affirmed by the Court of Criminal Appeal.[1] The present offences were committed while the appellant was released on parole pursuant to the eligibility granted in 1994.[2]
[1]Phillips, C.J., Crockett and Hampel, JJ., unreported, 20th March 1995.
[2]Parole was originally granted on 2nd June 1999 but it was cancelled when the appellant failed to comply with one of the conditions. Parole was again granted on 7th October 2000 and would have expired on 12th May 2001. The offences were committed on 20th and 21st December 2000.
After hearing a plea for leniency on his behalf and considering a psychiatric report from Dr Lester Walton, the learned judge sentenced the appellant on 18th December 2001 to 18 months' imprisonment on each of counts 1 and 2, two-and-a-half years' imprisonment on each of counts 3 and 4, six months' imprisonment on count 5, three years' imprisonment on count 6, two-and-a-half years' imprisonment on count 7 and six months' imprisonment on count 8. His Honour directed that six months of the sentence imposed on each of counts 1, 2, 3 and 4 be served concurrently with each other and with the sentence imposed on count 6; that 12 months of the sentence imposed on count 7 be served cumulatively upon the sentence imposed on count 6; and that the sentences imposed on counts 1, 2, 3 and 4 were otherwise to be served cumulatively upon each other and upon the sentence imposed on count 6. His Honour declared that the sentences imposed on counts 5 and 8 were, by operation of law, to be served concurrently with each other and with the sentence imposed on count 6. That made a total effective sentence of ten years' imprisonment, in respect of which a non-parole period of nine years was fixed. A declaration was made regarding 360 days' pre-sentence detention and it was recorded that there were no exceptional circumstances of the kind referred to in s.16(3B) of the Sentencing Act 1991. Although it is not recorded on the quadruplicate, the appellant was sentenced on counts 1, 2, 3, 4 and 6 as a serious sexual offender.
The grounds of appeal against conviction are:
"1.A miscarriage of justice resulted from the acceptance of the plea of guilty on count 7 in view of:
(a)the results of analysis of the complainant's urine sample reported by Allison Peace (statement of 18th May 2001);
(b)the interpretation of those results by Doctor Morris Solomon Odell (statement of 13th July 2001);
(c)the fact that upon examination of the complainant on the 22nd December 2001, Doctor John Harry found 'no unusual bruises or other marks of trauma to his body' (statement of 10th January 2001);
(d)the fact that the complainant first complained of seeing a red dot on his arm on the morning of 21st December 2001 only after police advised of the results of the urine analysis (statement of 3rd May 2001);
(e)the applicant's reluctance to plead guilty to count 7;
(f)the version of facts put to the judge at the plea on behalf of the applicant in relation to count 7 (plea at 48-49).
2.A miscarriage of justice resulted from the acceptance of pleas of guilty on counts 1 and 2 because the conduct relied upon to support each count involved no actual physical contact with the complainant and therefore could not in law amount to the commission of 'an indecent act with' the complainant contrary to section 47(1) of the Crimes Act 1958 (Vic)."
There are nine grounds of appeal against sentence but ground 5 was not pursued. With minor editing, the other grounds read:
"1.The learned sentencing judge erred in finding that the appellant was not genuinely remorseful.
2.In the absence of any expert evidence the learned sentencing judge erred in finding that the administration of amphetamines induced the complainant to become comatose.
3.The learned sentencing judge erred in imposing sentences disproportionate to the gravity of each of the offences in counts 1, 2, 3, 4 & 6.
4.The learned sentencing judge erred in cumulating, to the extent he did, the sentences on counts 1, 2, 3 & 4.
…
6.The learned sentencing judge failed to give sufficient weight to the appellant's age and medical condition.
7In all the circumstances the sentences imposed were manifestly excessive.
8.The learned judge erred:
(a)in fixing an insufficient disparity between the total effective sentence and the non-parole period;
(b)in his reasons for fixing such an unusually short disparity - namely, in placing weight or excessive weight on his findings of lack of remorse and 'no present effective prospects of rehabilitation' and in failing to have any or sufficient regard to the appellant's pleas of guilty, age and medical condition.
9.The total effective sentence and the non-parole period infringe totality."
Except for the second ground of appeal against sentence, there is no challenge to the judge's findings of fact in relation to the circumstances of the offences. (The gravamen of the first ground of appeal against conviction is not that his Honour's findings were in error but that he should not have accepted the appellant's plea of guilty.) The safest course, in the circumstances of this case, is therefore to adopt the summary of the facts at the beginning of the sentencing remarks.[3] Addressing the appellant, his Honour said:
[3]I have edited the summary very slightly, e.g. “20 December” for “29 December” in the first paragraph.
"In the late afternoon, early evening of 20 December 2000, your victim was on the Flinders Street Railway Station with the intention of proceeding by train to the Hurstbridge Station and thence to his home. He had his bicycle with him which had a punctured rear tyre. You were on the particular platform at the time and had in your jacket, a packet of cigarettes, that fact being evident to an observer. After you struck up a conversation with him, your victim asked you for a cigarette and you gave one to him. Thereafter, employing a number of devices, you kept him on the platform and persuaded him not to take the appropriate train home.
Ultimately, he, you and a youthful companion of yours, a heroin addict, called Steve, went by train to the Regent Railway Station and thence to where you were living. You were the occupant in charge of those particular premises, known as the Holy Name Alcohol Recovery Centre, which were provided for you and a number of other alcoholics by way of rehabilitation.
During the evening of 20 December, the following indecent acts were committed by you, whilst your victim and you were in your bedroom.
First, the subject of count 1, you persuaded your victim to undress and then put on a torn pair of boxer shorts which belonged to you. You had him sit with his legs apart and in that posture, his penis was exposed. You stared at him whilst in that posture for approximately ten minutes. Then the indecent act, the subject of count 2 occurred, when you induced him to stand naked before you for approximately five minutes, whilst you stared at him. When he tried to cover himself, you told him not to do so.
Then, the subject of count 3, you having told him to be seated while still in a naked condition, you placed your face against your victim's penis and kissed it, although there was no act of penetration.
Then, the subject of count 4, your victim having gone naked to the toilet and having returned to your bedroom, you moved over to him, placed your hand on his penis and moved your hand along it until your victim pushed your hand away.
Whilst each of those indecent acts was committed, your victim was a reluctant participant, but you persuaded him to do as you wished.
Your victim then said he wanted to leave, got dressed and left the house with his bicycle, intending to take the train home. You went with him to the Preston Railway Station, which proved to be closed for the night. The two of you then went to a Coles Supermarket, with him staying outside, whilst you purchased a number of items. At that time, a telephone call was made to your victim's father and both your victim and you spoke to his father. A false story was given to your victim's father, namely that you were the father of a friend of your victim and as time had got so late, the proposed arrangement was that your victim would sleep in a bed which was available because his friend's brother no longer lived at home. Your victim's father, having been thus placated, you and he returned to your premises.
Back there, you then injected yourself with amphetamine, that being the subject of count 5. Thereafter the subject of count 6, in the early hours of 21 December, you having told your victim to undress, you put hair removal cream on your fingers and rubbed it into his pubic hairs, around his penis, scrotum and anus. The two of you then went to the bathroom where the cream was washed off, the pubic hairs thus being removed.
Your victim at this time, having first had a drink of water, which had a bitter taste to it, and then Coca Cola which also had a bitter taste to it, became dizzy and felt strange and disorientated. This, it would seem, was his last memory until the following morning, when he awoke, lying on his back on your bedroom floor, fully dressed. At that time he was unable to stop shaking. He was sore on his upper right arm and saw a small prick mark on his right upper arm. Later urine analysis demonstrated that the substance amphetamine was in his system. Count 7 relates to the injection of such a prohibited substance.
The following morning, you spoke to one Brian Cox, the supervisor of the premises where you then resided, and gave him a false version as to how your victim came to be in your bedroom at that time. Later, having given your victim a number of presents, which he reluctantly accepted, you accompanied him to the railway station, he then finally getting to his home at four o'clock that afternoon.
On the way to the railway station, you used a stolen credit card to obtain $180 from an ATM, the subject of count 8.
Before parting company with your victim, you told him that you had been sexually abused as a child and that you had been warned not to say anything about it, or your would be expelled. You said to your victim not to say anything about what had occurred, because if he did, you would get into trouble. In fact it was only the following day that your victim first complained to his father and then later was interviewed by the police.
The evidence from your victim’s father and mother, is that he is a quiet, withdrawn and reserved boy. A photograph of him, Exhibit A, taken on 22 December, shows him to be an obviously young and, it would appear, immature boy. It is to be noted that at the time that these offences were committed, he was only some two months into his 16th year."
Mr Croucher argued ground 2 of the application for leave to appeal against conviction first. He made similar submissions to those that Mr Tehan made in R. v. Coffey[4], which was heard at the same time. In particular, he argued that counts 1 and 2 charged that the appellant committed an indecent act with the complainant but that, in the case of those two counts, there had been no actual physical contact with the victim as required by R. v. Alexander and McKenzie[5]. Accordingly, the argument continued, upon the admitted facts, the appellant could not in law have been convicted of the offences charged.
[4][2003] VSCA 155
[5][2002] VSCA 183 at [52].
It may be that there was actual physical contact with the victim in the case of count 1. The appellant provided the torn boxer shorts and dropped them in the complainant's lap. Be that as it may, on both occasions the appellant committed an indecent act in the presence of the complainant. The indecent act was staring at the victim's genitals in the manner described and in the circumstances of the case. There is no unfairness in characterizing the indecency in that way. Upon the admitted facts he was, accordingly, guilty of two offences against s.47 of the Crimes Act 1958. Ground 2 fails for the same reason that the corresponding ground failed in R. v. Coffey. I turn to ground 1.
On 30th May 2001, in the Magistrates' Court at Melbourne, the appellant was committed for trial in the County Court on 19 charges, including charges of rape, taking part in an act of sexual penetration with a child aged between 10 and 16, administering a drug for the purpose of sexual penetration, abduction for the purpose of sexual penetration, child stealing and false imprisonment. On 23rd August 2001 the Director of Public Prosecutions filed a presentment containing one count of rape, one count of taking part in an act of sexual penetration with a child aged between 10 and 16, eight counts of committing an indecent act with a child under 16, one count of administering a substance capable of interfering substantially with bodily functions, one count of theft and one count of obtaining property by deception. On 18th September 2001 the presentment with which we are concerned was filed over and the appellant pleaded guilty to all eight counts. This was, accordingly, a negotiated presentment.
Ground 1 refers in part to the course of the plea. After referring to the facts of count 6, the prosecutor opened count 7 as follows:
"[The complainant] dried himself. They both returned to the bedroom. The boy describes in the material at this point that he was feeling dizzy, strange and disorientated and they're the last memories he has of the evening - I say evening, but of the early hours of that morning. He woke up the next morning lying on his back on the floor of the bedroom. He had been dressed in his clothing. He felt unwell. He couldn't stop shaking and he had a sore upper arm. This is the subject of count 7, the administration of a substance.
He inspected the reason for the soreness in his arm and he noticed there was a small red dot. It looked to him like a needle prick mark. He did not knowingly use any drug that evening or morning. He did not consent to the injection of any drug into his body and the results of analysis of his urine showed that there was the presence of an amphetamine that had, we say, been injected by Barnes some time the night before without the boy's consent or for that matter knowledge."
Defence counsel invited the judge to take a different view of the facts pertaining to count 7. He contested the assertion that the complainant woke up the next morning dressed in his clothing, that he could not stop shaking and that he had a sore upper arm. Counsel submitted that there was material in the depositions which would suggest that that was not the case. Having referred to it, he continued:
"Now it's submitted, Your Honour, that Your Honour couldn't be satisfied on all of that evidence, firstly, that he had any sore upper arm, nor that he was shaking the next morning. There is a plea of guilty to count 7 and that's a plea of guilty to the administration of amphetamines to interfere with his bodily functions and the basis of that plea - plea of guilty - is on the basis that the youth … did use amphetamines. He was offered it earlier in the night. He refused it earlier in the night. In the morning he used it, used it orally with water and not intravenously. Now that - - -
HIS HONOUR: Is that part of the evidence?
[COUNSEL]:They're my instructions, Your Honour. And there's no evidence to the contrary. In fact, all there is, is evidence from which Your Honour is asked to draw inferences.
HIS HONOUR: Your client has pleaded guilty to administering amphetamines - - -
[COUNSEL]:Yes.
HIS HONOUR: - - - to the boy?
[COUNSEL]:By aiding and abetting that, the use of those amphetamines, by his administering - his drinking the amphetamines himself and my client actively encouraging him to do so.
HIS HONOUR: I don't know. I just don't know where we're going with this. I take it that you are not calling your client? I'm not telling you to do so - - -
[COUNSEL]:I haven't got those instructions at this stage, Your Honour, no.
HIS HONOUR: I'm just wanting to be clear where we're going.
[COUNSEL]:Yes.
HIS HONOUR: Can I anticipate that your client will not give evidence although he has given you instructions in regard to these matters?
[COUNSEL]:That's so, Your Honour.
HIS HONOUR; Well it's one thing for you to say there are witnesses who did not observe the boy shaking.
[COUNSEL]:Yes.
HIS HONOUR: Did not observe the boy to be showing signs of distress.
[COUNSEL]:Yes.
HIS HONOUR: I mean that is evidence and that is something to be brought into account.
[COUNSEL]: Certainly.
HIS HONOUR: But it's another thing, surely, to say that your instructions are that the boy drank a glass of water with the amphetamines in it the following morning when there's simply no evidence of it. I mean, was that put to the boy?
[COUNSEL]:No, that wasn't put at the committal as I recall."
That is the passage of transcript referred to in ground 1(f).
The prosecutor replied as follows:
"There was a submission that cannot be allowed to stand and I go directly to it. There is a count on this presentment that Barnes has pleaded to, count 7. It's related to the administration of the drug amphetamine. Now there is, it is true, little by way of satisfactory version in the form of my opening to Your Honour. There's been a settlement of this matter and Your Honour will - there's no mystery about that - and Your Honour has probably got the summary of prosecution opening and you will read the statement of the boy and you will see that there are other allegations that are contained.
The matter has been settled, but the only account in relation to the administration of a drug that can found, count 7, is the discovery by the boy upon examining his arm of a needle prick and his very clear - what Your Honour will see is that when he wakes up in the morning, there's no difficulty in recalling events from that moment onwards and it's not suggested to him at the committal, not once, that he has then voluntarily had some drink of amphetamine that has been provided by the accused and it couldn't be the basis of the count anyway when one thinks about it.
The only factual basis that can exist for the administration of the amphetamine is that it has been introduced intravenously to this boy in circumstances where he was unaware of the introduction of it and indeed, it wasn't entirely thrashed out but it seemed to be suggested that the basis of it was Barnes aiding and abetting the boy taking some amphetamine orally in a drink. That is of course a nonsense and could not constitute the offence and does not constitute the offence.
The offence necessarily - the word selected here is administered to [the complainant] without lawful excuse and without the consent of [the complainant], so there's only one version that's open in relation to that administration."
As we have seen, the judge sentenced the appellant on count 7 on the basis put by the prosecutor. Later in the sentencing remarks, he said that the act of administering a substance capable of interfering substantially with bodily functions was, in the instant case, dangerous. The victim was young and vulnerable and became "comatose" as a result of such administration.[6] Considerations of individual and general deterrence loomed large, his Honour continued, when considering the appropriate proportionate sentence to be imposed on that count.
[6]Compare the extract from Dr Odell’s report, set out in paragraph 23 of the schedule.
Mr Croucher developed a detailed and thoughtful argument designed to show that the appellant should be allowed to withdraw his plea of guilty to count 7 and have his conviction on that count quashed. His argument is set out as a schedule to this judgment.
The Director objected to the admissibility of the affidavit of Karen Susanne Ingleton referred to in paragraph 18 in the schedule. She deposed that at all times, both prior to and after the plea, the appellant maintained his denial to his previous legal representatives that he had administered amphetamines to the complainant, whether by injection or otherwise, but that, given the advice received from them, he understood that, unless he pleaded guilty to the eight counts on the presentment, the Crown would persist with an allegation of rape (which the appellant denied) and endeavour to establish that allegation by seeking to lead similar fact evidence. She also deposed that, in so far as defence counsel's submission on the plea at page 48 of the transcript might indicate that the appellant had instructed his previous legal representatives that he had observed the complainant taking amphetamines, that was incorrect. Rather, he had simply suggested to them that a possible explanation for the amphetamines found in the complainant's system arose from the fact that he had had the opportunity of taking them the next morning in the appellant's absence, knowing where the appellant kept amphetamines because he had seen the appellant use some the previous evening. All that was deposed to on, and only on, Ms Ingleton's instructions.
She also swore an affidavit on 1st September 2003 to the effect that the appellant's previous legal advisers had been notified of the application for leave to appeal against conviction and the proposed grounds. The appellant's previous solicitor swore an affidavit dated 2nd September 2003. In response to Ms Ingleton's first affidavit he said (a) that he did not dispute that the appellant denied that he administered amphetamines by injection to the complainant and that the appellant was advised that the Crown would persist with a count of rape if he did not plead guilty to the plea presentment and (b) that the plea was made in accordance with instructions. The appellant’s previous counsel wrote a letter to the appellant's present solicitors, saying that he did not wish to offer any comment on the contents of Ms Ingleton's first affidavit. He offered to make himself available to give evidence if that would assist the Court. The Director did not object to Ms Ingleton’s second affidavit, showing that the appellant's previous legal representatives had been informed of the application for leave to appeal against conviction and the grounds[7], but he did object to the affidavit sworn by the appellant’s previous solicitor. I find it unnecessary to rule on the Director's objections because, even if all this material were received in evidence, it would not alter my conclusion.
[7]R. v. Brown (2002) 5 V.R. 463 at [34] per Chernov, J.A.
In the circumstances I have described, it could not be said that the appellant did not appreciate the nature of the charge or did not intend to admit he was guilty of it.[8] The submission in paragraph 19 of the schedule takes too broad a view of the first alternative in R. v. Forde.[9] Could it be said that, upon the admitted facts, he could not in law have been convicted of the offence charged in count 7 or that, on any other ground, there has been a miscarriage of justice?[10]
[8]Compare R. v. Scarfo [2002] VSCA 56 at [16].
[9][1923] 2 K.B. 400 at 403.
[10]See R. v. Coffey at [6] and the cases there cited.
In my opinion the answer to that question is No. As part of the bargain struck with the Crown the appellant admitted, by his plea, that he had administered amphetamines to the complainant. Counsel for the appellant on the plea endeavoured to put a favourable interpretation on that admission. It is common ground that it could not stand. As paragraph 19 of the schedule shows, Mr Croucher conceded that the prosecutor was correct in saying that the version put by defence counsel could not constitute the offence. Counsel below did not apply to withdraw the plea of guilty in the light of what had transpired on the plea. This was not an unrepresented accused.[11] Had the matter gone to trial, the matters referred to in ground 1(a) to (d) and paragraphs 21 to 25 of the schedule may or may not have resulted in a verdict of acquittal. By the appellant's choice, the matter did not go to trial. This is not a case, like R. v. Coffey, concerned with the legal characterization of admitted facts.
[11]Compare De Kruiff v. Smith [1971] V.R. 761 at 766.
For these reasons, I would dismiss the application for leave to appeal against conviction and I turn to the appeal against sentence.
As I have already said, the appellant was sentenced on counts 1, 2, 3, 4 and 6 as a serious sexual offender. That had three consequences. First, in determining the length of the sentences imposed on and in respect of those counts, the judge was obliged to regard the protection of the community from the appellant as the principal purpose for which they were imposed.[12] Secondly, his Honour had a discretion, in order to achieve that purpose, to impose a sentence or sentences longer than would be proportionate to the gravity of the offences considered in the light of their objective circumstances.[13] Thirdly, each of the terms of imprisonment imposed on those counts had to be served cumulatively unless otherwise directed by the court.[14]
[12]Sentencing Act 1991 s.6D(a).
[13]Sentencing Act, s.6D(b).
[14]Sentencing Act, s.6E.
The discretion to impose a disproportionate sentence is rarely exercised, and rightly so, because it is rarely necessary. It was exercised in this case and, as will later appear, I agree that it was necessary to do so. As I read his Honour's sentencing remarks, the sentences imposed on the five individual counts, although stern, were not intended to be disproportionate. In any event they are not disproportionate, when all the circumstances are taken into account and the protection of the community is regarded as the principal purpose for which they are imposed. The discretion was exercised in relation to the total effective sentence. Where there are multiple counts that is often appropriate.[15]
[15]Compare R. v. Natoli [2001] VSCA 243 at [15].
A head sentence of ten years’ imprisonment with a non-parole period of nine years is very unusual and invites scrutiny, but his Honour did give reasons. [16] They were that he was satisfied that the appellant was not remorseful and that he had "no present effective prospects of rehabilitation". The difficulty is, with great respect, that, when a substantially longer sentence is imposed in order to protect the community, and a fortiori if a disproportionate sentence is imposed for that purpose, the gap between the head sentence and the non-parole period is likely to be greater rather than less than would otherwise have been the case. That is partly because of the difficulty of looking a long way into the future[17] and partly because the head sentence protects the community. A non-parole period is only the period at the expiration of which an offender becomes eligible for parole. Whether he or she is in fact released is a matter solely for the Parole Board. It was for reasons of that kind that a head sentence of 13 years' imprisonment with a non-parole period of nine years' was imposed in R. v. Connell[18] and a sentence of 15 years' imprisonment with a non-parole period of 11 years' was imposed in R. v. Natoli.[19]
[16]Compare R. v. VZ [1998] VSCA 32 at [12]-[13].
[17]Bugmy v. R. (1990) 169 C.L.R. 525 at 537; R. v. Pope (2000) 112 A.Crim.R. 588 at [27].
[18][1996] 1 V.R. 436.
[19]See especially [22].
Having imposed a disproportionate sentence in order to protect the community from the appellant, it was not open to his Honour to conclude that the minimum time that justice required him to serve having regard to all the circumstances was as long as nine years.[20] See also [25] and [31] below. I would accordingly uphold ground 8(a). The error in the non-parole period re-opens the discretion and obliges us to re-sentence the appellant.[21] It is therefore unnecessary to consider the other grounds except to the extent that the submissions made in support of them impinge on re-sentencing.
[20]Power v. R. (1974) 131 C.L.R. 623 at 629; Deakin v. R. (1984) 58 A.L.J.R. 367; Bugmy v. R. at 531, 536 and 538; R. v. VZ at [3], [14] and [22]; R. v. Pope at [1], [28] and [32].
[21]R. v. Pope at [29].
Notwithstanding the gravity of the offences and the appellant's previous convictions, of which I shall say more later, there were some mitigating factors. First, there was his plea of guilty. That entitled him, on pragmatic grounds, to a discount for its utilitarian value[22], but the judge did not consider that the plea evinced remorse. On the contrary, notwithstanding Dr Walton’s opinion and the appellant’s own claims in two handwritten documents before the court, his Honour made an affirmative finding that the appellant was not remorseful. An outburst following sentence to the effect that he had been set up and wrongfully convicted might be thought to support that finding. Remorse is a circumstance of mitigation to be established on the balance of probabilities. Taking everything into account, including the appellant’s antecedents and breach of parole, I am content to say that I am not satisfied that he is remorseful.
[22]Siganto v. R. (1998) 194 C.L.R. 656 at [22]; R. v. RND [2002] VSCA 192 at [17]-[19].
Secondly, there is the appellant's age and his medical condition. (They are further reasons why such a short gap between the head sentence and the non-parole period could not be justified.) Medical reports by two doctors disclosed a range of conditions that would make incarceration more burdensome. His Honour accepted that the appellant was in a "poor state of physical health". Dr Walton’s report revealed that in the past the appellant has been prone to repeated acts of self-injury in the context of suicidal depression. He will have to serve the sentence at least in protective custody[23] and that, too, will make it more onerous.
[23]At the time of the plea, because he had been assaulted whilst in custody, the appellant was in special protective custody.
The sentences the subject of counts 1, 2, 3, 4 and 6 are only the appellant’s latest convictions for sexual offences. In addition to the convictions in 1994, he sustained convictions in March 1981 in Queensland for aggravated assault on a child under the age of 17 and in September 1981 in New South Wales for indecent assault. (There are two other offences in 1960 which, given their description on the plea, I have ignored.) The psychiatric report expressed the view that the appellant was probably an "intractable paedophile" and the judge found that he was. There remains, however, the possibility of more drastic medical intervention which the appellant may be willing to accept if it is not contra-indicated by his medical condition.
Obeying the injunction in s.6D(a) of the Sentencing Act in the case of counts 1, 2, 3, 4 and 6, I would affirm the individual sentences imposed below except on count 7. The maximum custodial penalty for that offence was five years' imprisonment.[24] The appellant pleaded guilty. The Crown did not proceed with the more serious charge of administering a drug for the purpose of sexual penetration.[25] I would substitute a sentence of two years' imprisonment on that count.
[24]Crimes Act 1958, s.19.
[25]Crimes Act, s.53.
Unless a disproportionate sentence is to be imposed, I would give directions for concurrency and cumulation resulting in a total effective sentence of the order of six years' imprisonment. Is that sufficient to protect the community? In particular, if we are to impose a disproportionate sentence, can we be satisfied that the appellant will remain a danger to the community beyond the latest date on which he would be released pursuant to, say, a six-year sentence?[26] That date is not six years from the day on which we give judgment. Account must be taken of almost three years’ pre-sentence detention. It is also to be borne in mind that we are considering evidence on a plea in late 2001.[27]
[26]R. v. Connell at 444.
[27]The appellant also owes seven months and five days to the Parole Board. It will be recalled that the judge declared that there were no exceptional circumstances of the kind referred to in s.16(3B). At the time of the plea no order had been made by the Parole Board. That is still the case. At a mention on 29th September 2003, at which reference was made to R. v. Orphanides (2002) 130 A.Crim.R. 403, it was common ground that we should not predict what the Parole Board may do, but rather take the appellant’s position into account as a general sentencing consideration. That is what I have done.
It is said that we must not only be satisfied that the appellant will remain a danger to the community after the latest date on which he would be released pursuant to a proportionate sentence that gave due weight to totality but also that we must be so satisfied beyond reasonable doubt.[28] I have great difficulty with that concept for the reasons I endeavoured to explain in R. v. Pickard.[29] Even in the case of an indefinite sentence, the legislature requires only that the court be satisfied to a high degree of probability that the offender is a serious danger to the community.[30] Nevertheless, in the light of the cases, I have tried to apply the standard of proof beyond reasonable doubt in assessing the danger that the appellant will present to the community in several years' time.[31]
[28]See and compare the cases cited in R. v. Natoli at fn. 7.
[29][1998] VSCA 50 at [11]-[16] and [25].
[30]Sentencing Act, s.18B.
[31]That does not make this case a further authority about the standard of proof. The point was not argued. Doubtless the parties assumed that the Court would apply the same standard as the judge. The ratio is not that that standard is proof beyond reasonable doubt but that, for the reasons stated, it is appropriate to apply it in this case.
Doing the best I can, I am satisfied that he will still present a danger at the end of a six year sentence and that that will be true up to an eight year sentence. I am not prepared to go further. It does not follow automatically that a sentence of eight years' imprisonment must be imposed. There is still a discretion to be exercised and, whilst the protection of the community from the appellant is the principal purpose to be achieved, it is not the only purpose.[32] Nevertheless I consider that a disproportionate sentence of eight years' imprisonment is justified in this case. My reasons are the criminal propensity revealed by the offences the subject of counts 1, 2, 3, 4 and 6 and by the previous convictions referred to in [26] above, especially those in 1994[33]; Dr Walton’s statement that the appellant has “completed a course of behaviourally-oriented sexual therapy, demonstrably without sustained benefit"; and the fact that he cannot pray in aid remorse as a circumstance of mitigation. It is significant that these offences were committed within days of his being released on parole for similar crimes. I do not accept that the appellant’s age and health are a sufficient safeguard against his further offending.
[32]For a similar conclusion in relation to s.6D(a), see R. v. Dunne [2003] VSCA 150 at [24].
[33]See the judgment of Phillips, C.J. at 3-6.
There is a difference between the principle of totality and the avoidance of a “crushing” sentence. [34] A sentence of three years' imprisonment may infringe totality but it would rarely be crushing. Moreover a crushing sentence is sometimes unavoidable, as in the case of a murderer of very advanced years. The invocation of s.6D(b) will not always entail a crushing sentence but, if that is necessary to protect the community, it is a consequence that will sometimes have to be accepted. It is not inconsistent with s.5(2AA)(a) of the Sentencing Act or the common law to say that that is another reason why an appropriate non-parole period should be fixed. A prediction, even “beyond reasonable doubt”, may prove to be wrong.
[34]Compare Mill v. R. (1988) 166 C.L.R. 59 at 62-63 and R. v. Yates [1985] V.R. 41 at 48.
Should the other members of the Court agree, I propose that the appeal against sentence be allowed in part. I would affirm the sentences imposed below except the sentence imposed on count 7, for which I would substitute a sentence of two years' imprisonment. In lieu of the directions for concurrency and cumulation, I would direct that six months of each of the sentences imposed on counts 1 and 2 and two years of each of the sentences imposed on counts 3 and 4 be served cumulatively upon each other and upon the sentence imposed on count 6, but that otherwise the sentences imposed on counts 1, 2, 3 and 4 and the sentences imposed on counts 5, 7 and 8 be served concurrently.[35] That makes a total effective sentence of eight years' imprisonment.
[35]I do not accept that counts 1 and 2 were so much a prelude to counts 3 and 4 that there should be total concurrency. In any event the principal purpose of these directions is to achieve the necessary disproportionate sentence of eight years' imprisonment.
Bearing in mind that the head sentence is disproportionate to the gravity of
the offences and that a proportionate sentence would have been of the order of six years' imprisonment, I would fix a non-parole period of four-and-a-half years. It will be a matter for the Parole Board whether and when and on what conditions the appellant is released after he becomes eligible for parole.
SCHEDULE
18.At all times, both prior to and after the plea, the applicant maintained his denial to his previous legal representatives that he administered amphetamines to the complainant, whether by injection or otherwise. However, given the advice received from his legal representatives, he understood that, unless he pleaded guilty to the plea presentment, which included count 7, the Crown would persist with an allegation of rape ‑ which he denied ‑ and attempt to establish the same by seeking to lead similar fact evidence. Further, in so far as defence counsel's submission at the plea (Plea at 48) might indicate that he instructed his lawyers that he actually observed the complainant taking amphetamines, it is incorrect. He did not observe any such event. Rather, he simply suggested to his solicitor and counsel that a possible explanation for the amphetamines found in the complainant's system arose from the fact that the complainant had the opportunity of taking amphetamines in the applicant's absence in the morning and further he knew where the applicant kept his amphetamines because he had seen the applicant use some the previous evening. (See the affidavit of Karen Susanne Ingleton, sworn 27th August 2003.)
19.There are at least two reasons why the applicant should be allowed to withdraw his plea on count 7 and have his conviction overturned. First, the prosecutor was correct to say that the version put by defence counsel could not constitute the offence. That version refuted three vital elements ‑ lack of consent, the use of a syringe and administration of the drug by the applicant. It seems clear from what was put on his behalf that the applicant could not have appreciated the nature of the particular charge and did not intend to admit that he was guilty of the version put by the Crown. In those circumstances, it was incumbent on the judge to refuse to continue with the plea until the question whether the applicant wished to withdraw his plea of guilty had been raised and resolved.
20.Secondly, the material in the depositions and before the judge did not support the version put by the Crown and on which the judge acted. Consider the following matters:
21.First, the complainant at no stage witnessed any injection of amphetamines into his body (see the complainant's statement of 3rd May 2001 ‑ Deps at 158).
22.Secondly, Allison Peace, a scientist, reported in her statement of 18th May 2001 that the complainant's urine sample taken at 7:00 p.m. on 22nd December 2000 revealed traces of amphetamine, methylamphetamine and cannabis residues (but no morphine, codeine or benzodiazepines) (Deps at 331).
23.Thirdly, Dr Odell, a forensic physician, reported in his statement of 11th July 2001 (which statement, it seems, was probably before the judge ‑ Plea at 66)) that amphetamines:
are stimulant drugs that would be expected to increase a person's level of activity and wakefulness. This is the opposite of the effects described by [the complainant]. Most amphetamines of this type have a lifetime in the body in the order of twelve hours and therefore their presence in a urine sample taken two days after administration would be unlikely unless further doses have been taken during the intervening period.
A large dose of amphetamines could have resulted in low levels in urine after two days, however this would definitely not have the sedative effects described by [the complainant].
The absence of sedating drugs such as morphine, codeine or benzodiazepines is not proof that they were [not?] used in the alleged assault. Some of these substances have short lifetimes in the body and would therefore not be routinely detected in the urine collected two days after administration.
OPINION
There were no drugs found in the urine sample which would be consistent with a sedative being administered two days previously. Amphetamine residues found in the urine sample are unlikely to have been the result of amphetamines administered two days previously and may have indicated inter/current use of amphetamines. The lack of any findings of sedative drugs in the urine sample does not exclude a sedative drug having been used two days previously.
24.Fourthly, upon examination of the complainant on 22nd December 2000, Dr Harry observed "no abnormalities to find on general examination" and "no unusual bruises or other marks of trauma to his body" (see Dr Harry's report of 10th January 2001 at 2; Deps at 310).
25.Fifthly, the complainant first complained of having seen a red dot on his arm on the morning of 21st December 2000 only after the police advised of the results of the urine analysis in May 2001 (see the complainant's statement of 3rd May 2001 ‑ Deps at 158).
26.Thus, the evidence was incapable of supporting the version of the offence put by the Crown. Given the version put on behalf of the applicant on the plea, it would be unsafe to allow his plea of guilty and conviction on count 7 to stand.
BUCHANAN, J.A.:
For the reasons stated by Callaway, J.A. I would dismiss the application for leave to appeal against conviction, allow the appeal against sentence and substitute the sentence proposed by his Honour.
EAMES, J.A.:
I agree with the orders proposed by Callaway, J.A. and with his Honour’s reasons.
---
6
0