R v BF
[2007] VSCA 217
•2 November 2007
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 225 of 2006
| THE QUEEN |
| v |
| BF |
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JUDGES: | MAXWELL P, ASHLEY and NEAVE JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 10 May 2007 and 11 October 2007 | |
DATE OF JUDGMENT: | 2 November 2007 | |
MEDIUM NEUTRAL CITATION: | [2007] VSCA 217 | 1st Revision, 21 December 2007 [67]-[69] |
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CRIMINAL LAW – Sentencing – Rape, threat to kill, indecent act with a child under 16 (two counts) and intentionally causing serious injury – Breach of parole for interstate offences – Sentences ranged from 4 to 13 years’ imprisonment with a total effective sentence of 20 years’ imprisonment – Whether sentence(s) manifestly excessive – Whether sentencing judge should have given weight to the fact that the main evidence of penetration was appellant’s admission – Appeal allowed on the basis that 13 year sentence for rape and total effective sentence were manifestly excessive – Re-sentenced to 15 years’ imprisonment – Effect on sentence of interstate offences.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr T Gyorffy | Ms A Cannon, Solicitor for Public Prosecutions |
| For the Appellant | Mr L C Carter | Robert Stary & Associates |
MAXWELL P
ASHLEY JA
NEAVE JA:
The appellant, aged 38, pleaded guilty to one count of threat to kill (a representative count), one count of rape, two counts of an indecent act with a child under 16, and one count of intentionally causing serious injury. The victim of the offences was the appellant’s niece, who was aged 14 at the time of the offending.
The appellant was sentenced to the following terms of imprisonment:
·Count 1: Threats to kill (a representative count) — 5 years.
·Count 2: Rape — 13 years.
·Count 3: Indecent act with a child under 16 — 4 years.
·Count 4: Indecent act with a child under 16 — 5 years.
·Count 5: Intentionally causing serious injury — 5 years.
The judge below ordered that two years of the sentence imposed upon Count 1, one year of the sentence imposed on Count 3, two years of the sentence imposed upon Count 4 and two years of the sentence imposed on Count 5, be served cumulatively upon each other and upon the sentence imposed upon Count 2. This amounted to a total effective sentence of 20 years’ imprisonment. His Honour directed that the appellant serve a minimum of 16 years before becoming eligible for parole. The appellant appealed, by leave, against that sentence.
The Facts
In 1999, the appellant pleaded guilty in the District Court in Queensland to counts of assault with intent to rape, indecent assault involving penetration and anal rape. He was sentenced to eight years’ imprisonment, with a minimum non-parole period of 6.4 years (’the Queensland sentence’).[1] After serving part of that term, the appellant was transferred to Victoria to serve the remainder of the Queensland sentence. When he was paroled, in mid-August 2005, he went to live with his sister and her two daughters in Melbourne for a few months. Some time after he had moved out of his sister’s home, in circumstances which we will describe below, he went back to the premises, letting himself in with a key. The appellant knew that his 14 year old niece would be at home, but that her mother was away on holiday and that her older sister would not be there either. When he was asked by the police in the course of his record of interview why he had gone to the premises, he said ’to do what I did.’
[1]6.4 years being 80% of the total effective sentence of eight years.
His niece was on the phone when the appellant arrived. She moved into her mother’s bedroom and closed the door to continue her conversation. When she opened the door the appellant was standing there, wearing only his underpants. She asked the appellant what he was doing and he yelled at her that if she was not quiet he would kill her. He dragged her into the bedroom, throwing her onto the bed. When she began to scream he told her that if she screamed he would kill her and he started to choke her. The appellant made other threats to kill during the events that followed. Count 1 relates to the first threat to kill, which was a representative count.
The appellant then told the victim that he wanted to lick her. The appellant pulled her shorts and underpants off and told her that he would give her one lick and leave her alone. He said that ’it’s either I lick you or I kill you’ and he then licked her vagina. Count 3 was based on that indecent act.
The complainant screamed and the appellant began to strangle her again. She said she could not breathe and thought she was going to be killed. She managed to grab hold of a desk and rocked it, so that things on top of it fell onto both the complainant and the appellant. The complainant stood up briefly but the appellant continued to strangle her so that she could not breathe. At one point she felt as if she was about to vomit and she spat out some material which was either vomit or mucus which had accumulated in her mouth while she was being strangled. Her nose began to bleed.
The appellant pushed the complainant back on the bed and the appellant placed his hand over her mouth. He admitted in his record of interview that he had penetrated her with his fingers. Count 2 covered this digital rape.
The appellant then rubbed his penis on the complainant’s vagina and ejaculated near her vagina. This provided the basis for Count 4, the second count of indecent assault.
After the appellant ejaculated he took the complainant into the bathroom so she could have a shower. Her nose began to bleed again and she asked the appellant if he was going to kill her. He said that he would not kill her but he would kill himself.
The violent attack on the complainant lasted for 20 to 25 minutes, during which time she was screaming and crying. The physical effects of the attack were described in a report by Dr Wells, which was summarised on the plea as follows:
He noted, first of all… there were extensive petechial haemorrhages on the face, ears and upper neck. He concluded that the probable mechanism is the sudden rise in venous pressure with distension and rupture of small blood vessels. This is seen in individuals who have been subjected to strangulation or neck compression. He noted that there were further areas of haemorrhage in the mouth. Haemorrhages were also present on the surface of both eyes, conjunctival haemorrhages, which also would be caused by pressure being placed on her neck). He also noted … areas of linear petechial haemorrhages on the front of the shoulders and an area of bruising on the right upper back. He concluded that the bruising may be where clothing has been forcibly twisted and forced against the surface of the skin.
Dr Wells concluded by saying that the application of pressure to the neck resulting in extensive facial petechia and conjunctival haemorrhages is a ’potentially life threatening event.’
After the assault, the appellant contacted a friend who was an elder of the Brighton Church of Christ and asked to meet him, saying he was in trouble. At their meeting he disclosed that he had hurt his niece and had tried to rape her. His friend then contacted police and took the appellant to the police station, where he was interviewed and admitted to the acts described above.
Grounds of Appeal
The appellant appealed on four grounds, as follows:
1) The total effective sentence, the non-parole period and the individual sentences are each manifestly excessive.
2) The learned sentencing judge erred by giving no weight to the fact that the only evidence of penetration in respect of count 2 was the appellant’s admissions.
3) The learned sentencing judge erred in determining that the victim was probably dying.
4) The learned sentencing judge erred in determining that the appellant perceived that he was entitled to act as he had done.
Ground 1: Manifest Excess
The Court, at the outset, sought submissions from the Crown as to why the sentences imposed were not manifestly excessive. Counsel for the Crown submitted that the sentences imposed on the individual counts and the total effective sentence were within the range of sentences imposed for comparable offences. In particular, the count of rape was a very serious example of an offence which attracted a maximum term of 25 years’ imprisonment.
Counsel submitted that the rape in this case could be compared to the rapes in R v Welsh,[2] and R v Fuller–Cust[3] where the complainant was raped by an offender who was angry with her and wanted to exact retribution for perceived slights. Counsel submitted that his Honour was entitled to take account of Mr Joblin’s psychological assessment, which said that the appellant blamed his niece for having to leave the home and that he was angry with her when he went to her home with the intention of raping her.
[2][2005] VSCA 285.
[3](2002) 6 VR 496.
It was said that the sentence of 13 years imposed for the rape was within the range for a rape of this kind, having regard to:
·the appellant’s desire to exact revenge;
·the age of the complainant and her relationship with the appellant;
·the terror which the complainant experienced as a result of the appellant’s attack on her;
·the fact that the complainant had previously had an affectionate relationship with the appellant and was entitled to assume he would be her protector rather than her attacker; and
·the fact that the appellant was on parole for three sex offences (including rape) committed in Queensland, at the time when he raped his niece.
Counsel for the Crown also submitted that cases such as R v Sheriff[4] and R v Schubert[5] indicated that a digital rape should be treated just as seriously as, and as no less humiliating or traumatic for the victim than, a penile rape.
[4](Unreported, Supreme Court of Victoria Court of Appeal, Tadgell, Callaway and Buchanan JJA, 19 March 1998).
[5][1999] VSCA 25.
Counsel for the appellant contended that the cases relied upon by the Crown supported, rather than undermined, the submission that the sentences imposed for the individual counts and the total effective sentence were manifestly excessive.
In R v Welsh[6] the appellant was convicted of six representative counts of rape. The rapes and other abusive acts were motivated by anger because the complainant had asked the appellant to leave his rented room in her house. He took revenge by planning the attack on the complainant with his co-offender, and buying balaclavas and other articles for use when committing the offences. He went to the victim’s house with the co-offender, tied her up, committed multiple rapes on her and subjected her to horrifying violence and humiliation for an hour and three-quarters. During this time she was terrified that she would die. The appellant was sentenced to 20 years’ imprisonment on each count of rape and to a total effective sentence of 25 years for the rapes and other counts of false imprisonment, burglary and indecent assault. This court dismissed an appeal against that sentence, holding that neither the sentences imposed on the rape counts nor the total effective sentence were manifestly excessive.
[6][2005] VSCA 285.
In R v Fuller-Cust[7] the applicant had committed multiple sexual offences, including penile–vaginal, penile-oral and vaginal-object rapes on separate occasions on two victims who had befriended him. The rapes occurred in the victims’ homes where they were degraded, humiliated and terrorised for many hours. The appellant, who pleaded guilty after a contested committal hearing, had suffered from serious sexual abuse as a child and had a background of unsatisfactory institutional and foster care. The court upheld two of the appellant’s grounds of appeal based on specific error and re-sentenced the appellant. The sentences imposed for the individual rape counts ranged from five years for the penile-oral rape to seven years for the vaginal-object rape. The sentences imposed for the rapes and other counts of indecent assault, causing injury recklessly and false imprisonment, resulted in the appellant receiving a total effective sentence of 17 years and 3 months.
[7](2002) 6 VR 496.
Counsel for the appellant submitted that the objective circumstances of the offences committed by the appellant in this case were not as serious as those in either Welsh or Fuller-Cust, that there were a larger number of counts in Welsh than in this case, and that the sentences imposed for the rapes in Fuller-Cust were much lower. Counsel further submitted that the events in this case occurred over 20–25 minutes, compared with an hour and three-quarters in Welsh and the whole night in the case of one of the victims in Fuller–Cust. It was conceded that the 14 year old complainant in this case might have been as terrified as the victims in these two cases. However, counsel submitted that the sentence(s) in this case were manifestly excessive because the offences were objectively less severe, the appellant in this case was deeply remorseful and he had confessed to the offences almost immediately.
Counsel also compared the sentence imposed for the digital rape in this case with the sentences considered by the Court of Appeal in R v Empey[8] and DPP v Devaldez.[9] In Empey, Charles JA described the digital rape, in which the offender repeatedly drove his fist into the victim’s vagina before repeatedly stamping on her head, as ’as serious an example of a single instance of that crime as one could imagine.’[10] It was held that neither the sentences of 14 years for the single count of rape and 10 years for intentionally causing serious injury by repeatedly kicking the victim in the head, nor the total effective sentence of 14 years, were manifestly excessive.
[8][2004] VSCA 243.
[9][2003] VSCA 29.
[10][2004] VSCA 243, [25].
Devaldez was a Director’s appeal against the sentences imposed on the respondent, who had been convicted of one count of digital rape and two counts of penile rape committed at knife-point during an invasion of the complainant’s home. He had previously been convicted of four rapes with aggravating circumstances, two other rapes, two indecent assaults with aggravating circumstances, two indecent assaults and of other burglary and similar offences. After finding that the judge below had made specific errors in his sentencing reasons, the Court re-sentenced the offender to 15 years for each of the rapes, and to a total effective sentence of 16 years with a non-parole period of 14 years.[11]
[11]The offender was also convicted of one count of aggravated burglary and one count of indecent assault.
Counsel for the appellant submitted that the digital rape in this case, though terrifying and humiliating for the victim, was not as serious as the behaviour of the respondent in those cases,[12] yet the appellant had been sentenced to 13 years’ imprisonment for the digital rape and had received a total effective sentence of 20 years. Further, in this case, the appellant’s rape conviction arose out of his admission that he had digitally penetrated the victim, who was herself uncertain whether she had been penetrated. Counsel submitted that according to cases such as Ryan v R,[13] R v Brazel[14] and R v Ellis[15] this required a sentencing discount in addition to the discount allowed for the appellant’s guilty plea.[16]
[12]Counsel also referred to the sentences imposed in R v Cunliffe [2000] VSCA 146 and R v Cardamone [2007] VSCA 77. In Cunliffe the appellant was convicted of eight offences, including kidnapping, false imprisonment, rape and indecent assault. The victim was kidnapped, held in shed, had something she believed was a bomb strapped to her chest, had her clothes cut off her and was raped and indecently assaulted. The 51 year old offender had no history of committing sexual offences. The Court of Appeal held that a total effective sentence of 20 years was manifestly excessive. The sentences of six years’ imprisonment for the rape and one year’s imprisonment for the indecent assault were affirmed, but the total effective sentence was reduced to 15 years.
[13](2001) 206 CLR 267.
[14](2005) 153 A Crim R 153.
[15](1986) 6 NSWLR 603.
[16]Ryan v R (2001) 206 CLR 267, 272 [12] (McHugh J), 295 [95] – 296 [98] (Kirby J); R v Brazel (2005) 153 A Crim R 152, 159 (Callaway JA); (1986) 6 NSWLR 603; R v Ellis (1986) 6 NSWLR 603, 604 (Street CJ).
Finally, counsel for the appellant submitted that the sentences of four and five years imposed for counts 3 and 4 respectively (indecent acts with a child under 16) and five years for the count of intentionally causing serious injury, were manifestly excessive when compared with sentences imposed for more serious examples of these offences. The total effective sentence of 20 years’ imprisonment was also said to be manifestly excessive.
After hearing argument, the Court indicated that it had come to the conclusion that the ground of manifest excess was made out. Our reasons for reaching that conclusion follow.
Why the ground of manifest excess was made out
These were appalling offences. The victim, who was only 14 years old, was assaulted and raped by her uncle, whom she should have been able to trust. She was subjected to a terrifying attack, which lasted for at least 20 minutes, during which she feared she would be strangled. She suffered physical injuries and she is likely to be psychologically affected by the rape and the events surrounding it for many years, if not forever.
The offences were not committed on the spur of the moment. On his own admission the appellant went to the house ’to do what he did.’ The appellant told Mr Joblin, the forensic psychologist who provided an assessment to the court below, that while he was living with his sister, the victim became close to him. Mr Joblin said:
He reported that she would sit on his lap and place her legs over him when they would sit together. He reported that she was often physically close to him. [The appellant] acknowledged that this became the source of some sexual stimulation for him. He also acknowledged, however, that he recognised this could become the source of potential difficulties.
He reported that he had indicated some of his concern to his sister and thus, he left their home. It seems that just before he left, [the complainant] waited up for him when he came home late. On one occasion he apparently asked her for a kiss. That information was related to her mother and he had to leave.
Later in the report Mr Joblin noted that:
…[the appellant] became strongly disoriented after his time in custody. He certainly did not have the psychological resources to cope with the difficulties he faced on release. When he went to live with his sister, he felt he would be able to stabilise. However, then he had the insight to recognise the problems he was having with his sister’s daughter and the need to get out of that environment. He went to live in accommodation that was far from comfortable for him. He lost his job and could not get another. He had no money. In many ways it seems that he placed the blame for all his problems on his niece as he believed if she had not been physically close to him, he would not have had to leave and, therefore, would not have deteriorated. Quite obviously, that is simply his perception of the situation but that is consistent with his report that he was angry with her when he went to her home on this night. However, it also seems that he was also angry with the world in general. Thus, the rape occurred in the context of anger and rage and the victim was specifically chosen because of his perception that she was the cause of is distress.
As we have said previously, the appellant had assaulted and raped a woman in Queensland and was on parole for those offences at the time he committed these offences.
On the other hand, the appellant’s early guilty plea to these offences entitled him to some reduction of the sentences which would otherwise have been imposed. As we discuss below, he was entitled to an added element of leniency because his admission of digitally penetrating his niece provided the basis for the charge of digital rape.[17]
[17]R v Ellis (1986) 6 NSWLR 603, 604 (Street CJ).
Despite the gravity of these offences, and having regard to all the factors mentioned above, we were nevertheless of the view that the sentence imposed for the single count of rape and the total effective sentence were each manifestly excessive. In reaching that conclusion we took account of the fact that some of the aggravating factors, for example the violence accompanying the rape and the fear felt by the victim, were covered to some extent by the counts of threat to kill and intentionally causing serious injury.
In reaching that conclusion we considered the sentences imposed for rape in the cases in which serious aggravating factors were present, to which we were referred by counsel for the appellant. We also examined the sentencing statistics for the offences of rape,[18] making a threat to kill,[19] and intentionally causing serious injury,[20] and the examples of recent sentences imposed for rape and indecent assault contained in the Victorian Sentencing Manual, which gives some detail about the circumstances of the offender and of the offences committed.[21] In our opinion the sentences for threat to kill and intentionally causing serious injury were not outside the range of sentences that could be properly imposed for these offences. Though the sentences were undoubtedly stern, it was necessary for his Honour to take account of the very violent nature of these offences, the nature and extent of injury suffered by the complainant and the terror which she experienced.
[18]Sentencing Advisory Council, Sentencing Trends for Rape in Victoria December (June 2007). Over the period 2001-02 to 2005-06 principal imprisonment terms imposed for rape ranged from one year to 20 years’ imprisonment, see Figure 7. The median length of imprisonment for rape was 5 years and the average length of imprisonment ranged from 4 years 6 months to 5 years 9 months, see Figure 8. The average total effective sentence for those convicted of rape in the period 2001-02 to 2005-06, ranged from 6 years to 7 years 8 months, see Figure 13.
[19]Sentencing Advisory Council, Sentencing Trends for making a threat to kill in the higher courts of Victoria 2001-02 to 2005-06 (No. 30, August 2007). Over the period 2001-02 to 2005-06, 43% of those sentenced for making a threat to kill were sentenced to a period of imprisonment, see Figure 3. Of those imprisoned, principal terms of imprisonment ranged from 22 days to 5 years, while the median length of imprisonment was 1 year, 4 months and 15 days, see Figure 7.
[20]Sentencing Advisory Council, Sentencing Trends for Causing Serious Injury Intentionally in the Higher Courts (No. 14, September 2006). Over the period 2000/2001 to 2004/2005 the average length of imprisonment term imposed on people sentenced for causing injury (both intentionally and recklessly) ranged from 10 months to 1 year and 5 months, see Figure 10.
[21]Judicial College of Victoria, Victorian Sentencing Manual, 24.10.1 - Rape and Indecent Assault (7 May 2007).
Because we concluded that the ground of manifest excess is made out it was unnecessary to consider the second, third and fourth grounds of appeal. The conclusion that the sentence for rape and the total effective sentence were manifestly excessive requires the appellant to be re-sentenced.
The re-sentencing discretion
The Court, having indicated its opinion that the appellant had made out the ground of manifest excess, sought further submissions on re-sentencing. With the consent of the appellant and the Crown, it was ordered that a pre-sentence psychological report be obtained. The Court indicated that its reasons and the decision on re-sentencing would await receipt of that report.[22] Following receipt of the report we heard further submissions from counsel.
[22]A similar approach was taken in R v Tutchell (2006) 168 A Crim R 25.
In re-sentencing the appellant we deal first with mitigating factors and then consider other factors relevant to the exercise of the sentencing discretion. We also examine the provisions of the Sentencing Act 1991 which are particularly relevant in this case.
Mitigating factors
It is apparent from his Honour’s sentencing remarks that the appellant had an appalling childhood. His Honour commented on the appellant’s background as follows:
Tendered on your behalf was a report from Mr Ian Joblin… He described your background. You came to Australia with your parents when you were 14 months old. Your father, it would appear, was a paranoid schizophrenic. He was a violent alcoholic who would readily assault and abuse your mother. In these circumstances I accept that he assaulted and abused you and your siblings. It has now apparently come to light that he sexually assaulted your sister, the mother of your victim. Your father has now been dead for some years. You retained a close relationship with your mother and also your sister who is, as I have said, the mother of the victim.
You have a brother with a history of drug abuse, and a sister who was certainly at the time of Mr Joblin’s report in custody in a women’s prison on drug related charges. It is in that scenario that one has no difficulty in accepting that you came from a very abusive childhood.
His Honour went on to say that:
There must be some deep psychological problem where a human being could inflict this sort of horrendous conduct on a 14 year old girl over resentment of being thrown out of a flat. Those matters put this at least into a context, but cannot in any way be said to ameliorate what happened.
The assessment provided by Dr Grant Lester, for the purposes of re‑sentencing the appellant, referred to this abusive background and said that since his teens the appellant has had a history of sporadic alcohol abuse. Dr Lester described the circumstances of the offending as follows:
[The appellant] was living with and supported by his sister [the complainant’s mother] initially, however he moved out in December 2005. He says the move was initiated by himself as he felt that his niece was being overly affectionate towards him and that he was at risk of responding.
He describes moving into very poor rented accommodation and gaining and losing employment. His parole conditions included a complete prohibition from alcohol but in December 2005 he had applied for and been given permission to consume small amounts of alcohol.
By late December 2005 he was low in mood, broken sleep; appetite was ‘ok’ but was losing weight and felt very negative about himself. Increasingly questioned the use of ‘going on’. He continued to try to find work. No ruminations of guilty.
By April 2006 he was unemployed, impoverished and about to lose his rented accommodation. He was lonely and felt isolated. He describes some weeks of feeling low, pessimistic about the future and increasingly hopeless.
On the third of April 2006 he describes feeling like he ‘had had enough’ and wanted to get ‘pissed’.
He consumed 2 bottles of part and a half bottle of wine and was so inebriated that ‘I nearly stacked my car on the way to [V’s]; I could hardly focus on the road’. He felt angry at the disaster of his life and blamed his niece for behaving in such a way as to lose him his sister’s support.
He went to his sister’s house and attacked his niece.
Dr Lester referred to the appellant’s history of depression in the following terms:
There were no formal psychiatric contacts or consultations until after a suicide attempt when imprisoned in 2003. However historically he relates two periods (end 1998 and end 2005) of significantly lowered mood, loss of life interest, anger, sleep and appetite disturbance lasting weeks to months. The first period was marked by the onset of increased alcohol abuse. In both periods, while heavily intoxicated, he has physically and sexually assaulted a female victim. After being imprisoned in March 2006 he noted that the lowered mood, loss of life interest, sleep disturbance and loss of appetite continued for some 3-6 months. They resolved without psychiatric or medical intervention. He has felt well for some months now.
At interview he present[s] as a serious emotionally reserved man who recognises the significance of his offences and the damage to his niece and states that he has attempted through his legal pleas to minimise this damage.
There is no evidence of current mental illness. There is no evidence of paraphilias and in particular paedophilia.
There is only a minor history of physical aggression other than his major offences.
Dr Lester’s conclusion was that:
1. [The appellant] shows no evidence of paraphilias or paedophilia.
2. [The appellant’s] psychiatric history is strongly suggestive of episodic Major depression. On the background of these episodes he has abused alcohol, become heavily intoxicated and committed violent sexual assaults.
3. [The appellant] stated clearly his awareness of the wrongness of his behaviour toward his niece and feels that he has and will continue to do all he can to minimise that damage.
4. [The appellant] has appeared to have suffered from two episodes of Major Depression. He therefore is a significant risk of a recurrence of this illness in the future.
5. [The appellant] will benefit from psychiatric review within prison and particularly closer to his time of release and ongoing psychiatric support upon release to monitor recurrence of his Major Depressive illness.
Counsel for the appellant submitted that, in accordance with this Court’s decision in R v Verdins,[23] it was necessary to take account of the fact that the appellant was suffering from depression when he committed the offences. Counsel for the Crown submitted that, in order for Verdins to apply, there must be some causal connection between the illness and the offending. He contended that no such connection existed here.
[23][2007] VSCA 102.
In R v Tsiaras[24] the Court of Appeal (Charles, Callaway and Vincent JJA) identified five different ways in which psychiatric illness should be taken into account in sentencing:
First, it may reduce the moral culpability of the offence, as distinct from the prisoner's legal responsibility. Where that is so, it affects the punishment that is just in all the circumstances and denunciation of the type of conduct in which the offender engaged is less likely to be a relevant sentencing objective. Second, the prisoner's illness may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served. Third, a prisoner suffering from serious psychiatric illness is not an appropriate vehicle for general deterrence, whether or not the illness played a part in the commission of the offence. The illness may have supervened since that time. Fourth, specific deterrence may be more difficult to achieve and is often not worth pursuing as such. Finally, psychiatric illness may mean that a given sentence will weigh more heavily on the prisoner than it would on a person in normal health.
[24][1996] 1 VR 398, 400.
In R v Verdins[25] the Court held that that:
The sentencing considerations identified in R v Tsiaras are not — and were not intended to be — applicable only to cases of “serious psychiatric illness.” One or more of those considerations may be applicable in any case where the offender is shown to have been suffering at the time of the offence (and/or to be suffering at the time of sentencing) from a mental disorder or abnormality or an impairment of mental function, whether or not the condition in question would properly be described as a (serious) mental illness.
[25][2007] VSCA 102, [5].
Mr Joblin’s report indicates that the appellant became disorientated after his time in custody, but that ‘the rape occurred in the context of anger and rage and the victim was specifically chosen because of the perception that she was the cause of his distress.’ Dr Lester says that the appellant was suffering from major depression at the time of the attack. Verdins requires any impairment of the appellant’s mental functioning caused by his depression to be considered when assessing his moral culpability.
The appellant had previously sexually assaulted a woman while he was drunk. When he became depressed he drank excessively and reacted violently. He must have been aware that depression increased his risk of re-offending. He knew that his depression was treatable, having been successfully treated with anti-depressants in 2004, but he did not seek medical advice when he became depressed again. His depression may well have affected his capacity for reasoned judgment and been a factor in his failure to seek treatment. However, the fact that he contacted his friend immediately after the attack on his niece and then confessed to the police shows that he was well aware of the wrongfulness of his behaviour. In all, whilst we accept that the appellant’s culpability was reduced to an extent, we do not consider that the appellant’s depression was as significant a factor in reducing his culpability as, for example, in R v Vardounitis.[26]
[26][2007] VSCA 62, [24].
According to Dr Lester’s report, the appellant’s mood is now normal and he is not currently suffering from thoughts about self-harm or suicide. It cannot therefore be said that the sentence will weigh more heavily upon him than on a person who is not suffering from a psychiatric condition. Although there may be a risk of the appellant becoming depressed during his period of imprisonment, this can be dealt with by appropriate medical treatment.
As counsel for the appellant conceded, this is not a case where the principle of general deterrence should be substantially moderated because of the appellant’s history of depression. Nor should specific deterrence be reduced because of this factor.
In these circumstances, the principles set out in Tsiaras and Verdins are of limited assistance to the appellant.
Discount for guilty plea and admission of digital penetration
In re-sentencing the appellant it is necessary to take account of his remorse for his attack on his niece. The appellant voluntarily went to the police, admitted the offences in his interview and pleaded guilty to all of the offences. Mr Joblin noted that when the appellant was interviewed he was ’extremely contrite’ and that Dr Lester’s report referred to his awareness of the wrongness of his behaviour. The appellant’s guilty plea saved the expense of a trial and relieved the complainant from the ordeal of having to give evidence at committal or trial. It appears that his Honour regarded the appellant’s statement to Mr Joblin that he was angry with his niece as indicative of lack of remorse. In our view he should not have done so. The appellant’s statements referred to his state of mind at the time of the offence, rather than subsequently. Dr Lester said that ‘[the appellant] recognises the significance of his offences and the damage to his niece.’
Counsel for the appellant submitted that a discount over and above that allowed for the guilty plea should be allowed to the appellant, because there would have been insufficient evidence to justify charging him with rape if he had not admitted to penetrating the complainant.
In her VATE tape, the complainant said that at one point during the attack the appellant had licked his fingers and put his hand near her vagina but she could not be sure if he had penetrated her. When asked by police whether she could feel his finger inside her, she stated ’he tried to.’ During his interview by the police, the appellant admitted that he took the complainant’s shorts off and said ‘I digitally penetrated her.’ When asked what he meant by that he said ’I put my finger in her vagina. I licked her vagina.’ It was said that this admission was similar to the confessions made by offenders in cases such as Ryanv R,[27] R v Ellis[28] and R v Brazel[29] which were held to require ‘a significant additional element of leniency’.[30]
[27](2001) 206 CLR 267, 272 [12]( McHugh J), 295 [95]–296 [98] (Kirby J).
[28](1986) 6 NSWLR 603, 604 (Street CJ).
[29](2005) 153 A Crim R 152, 159 [21] (Callaway JA).
[30]R v Ellis (1986) 6 NSWLR 603, 604 (Street CJ).
In R v Ellis, the New South Wales Court of Appeal held that an offender who had voluntarily come forward to the police and confessed to some armed robberies was entitled to leniency additional to that following a guilty plea. Street CJ said:
This Court has said on a number of occasions that a plea of guilty will entitle a convicted person to an element of leniency in the sentence. The degree of leniency may vary according to the degree of inevitability of conviction as it may appear to the sentencing judge, but it is always a factor to which a greater or lesser degree of weight must be given.
When the conviction follows upon a plea of guilty, that itself is the result of a voluntary disclosure of guilt by the person concerned, a further element of leniency enters into the sentencing decision. Where it was unlikely that guilt would be discovered and established were it not for the disclosure by the person coming forward for sentence, then a considerable element of leniency should properly be extended by the sentencing judge. It is part of the policy of the criminal law to encourage a guilty person to come forward and disclose both the fact of an offence having been committed and confession of guilt of that offence.
The leniency that follows a confession of guilt in the form of a plea of guilty is a well recognised part of the body of principles that cover sentencing. Although less well recognised, because less frequently encountered, the disclosure of an otherwise unknown guilt of an offence merits a significant added element of leniency, the degree of which will vary according to the degree of likelihood of that guilt being discovered by the law enforcement authorities, as well as guilt being established against the person concerned. [31]
[31](1986) 6 NSWLR 603, 604.
The same principle was applied in Ryan v R,[32] where a priest who had pleaded guilty to 14 counts of sexual offences against 12 young boys disclosed to police investigating these alleged offences that he had committed 39 additional offences, some of which were committed against the complainants in the offences for which he was charged and some of which were committed against 16 other victims. An allowance was also made for admissions in R v Brazel,[33] where an offender who was already serving a sentence of imprisonment for two murders disclosed that he had murdered another victim.[34]
[32](2001) 206 CLR 267.
[33][2005] VSCA 152.
[34]See also R v Marcus [2004] VSCA 155 (appellant who pleaded guilty to cocaine importation was entitled to leniency because he had disclosed two previous offences unknown to authorities); R v Doran [2005] VSCA 271 (appellant who was being investigated for particular sexual offences admitted committing other offences against children).
In R v Ellis, Street CJ recognised that the degree of weight to be given to an admission varies according to the likelihood of the offence being discovered, and the likelihood of guilt having been established against the offender in the absence of this admission. In this case, even if the appellant had not gone to the police, the complainant might well have reported the sexual assaults to them. However, the complainant’s uncertainty in her record of interview about whether penetration occurred makes it doubtful whether the appellant would have been prosecuted for, or convicted of, the offence of rape, but for his admission.
We note that the rape conviction resulted in the heaviest individual sentence. This is a factor which supports greater leniency in re-sentencing him for that offence. However, in our view the admission should not be given as much weight as the admission to offences against unknown victims in Ryan v R, or the admission of an offence to which the offender had not previously been linked in any way in R v Brazel.
To summarise, in sentencing the appellant, we would give minor weight to the appellant’s appalling childhood. His depression at the time of offending reduced his moral culpability to some extent. His remorse, his admission of penetration and his guilty plea are significant mitigating factors. Like the learned judge below, we also take into account, in a limited way, the probability that the sentence imposed will be served in protective custody, and the extra hardship that will cause.
Other relevant factors
In assessing the appellant’s culpability it is necessary to take account of the fact that the appellant went to his niece’s home ‘to do what [he] did’, that the sexual assaults on her were motivated by anger and a desire for revenge though she had previously had an affectionate relationship with him, that a significant degree of violence was involved and that the victim was terrified by the attack and feared for her life. These are factors which significantly increase his culpability.
In sentencing the appellant, the judge said:
I have no faith in [the appellant’s] prospects of rehabilitation from this sort of offending. I bear very much in mind that if there be such prospects they should be given whatever chance of occurrence that I can. The same principles apply to your re-offending. Anyone looking at this material, in the absence of explanation, and in the absence of anything it would seem that can really be done to change this attitude, would regard you as dangerous. As I said, the principal purpose, if it indeed be that, because general deterrence and specific deterrence play a very large part as well, is the protection of others.
We agree with his Honour’s assessment that the appellant’s history casts doubt on his prospects of rehabilitation. This was not his first violent sexual offence.[35] As we said in para [4] above, the appellant was convicted of three sexual offences in Queensland in 1999, when he sexually attacked a young woman. The appellant must be deterred from offending in similar circumstances. He must recognise that depression and alcohol are a dangerous combination which may increase his risk of re-offending. In light of the appellant’s history of mental instability and violent offending, the total effective sentence must give weight to the need to protect the community (see s 5 (1)(e) of the Sentencing Act 1991).
Considerations under the Sentencing Act1991
[35]In addition to these convictions, the appellant had four prior court appearances, resulting in 9 prior convictions, all during or prior to 1990, for offences other than sexual offences.
At the plea hearing, it was conceded by counsel for the appellant that because of his prior sexual offences, he fell to be sentenced as a serious sexual offender under Part 2A of the Sentencing Act 1991.[36] As a result, the principal purpose for which the sentence is imposed is to be the protection of the community and a sentence longer than that which is proportionate to the gravity of the offence, in light of its objective circumstances, may be imposed to achieve that purpose.[37] In light of the substantial total effective sentence which we would impose, we do not consider it is necessary to impose a sentence longer than that proportionate to the gravity of the offences, in order to protect the community.[38]
[36]A person is a serious sexual offender if they have ‘been convicted of 2 or more sexual offences for each of which he or she has been sentenced to a term of imprisonment’: Sentencing Act 1991, ss 6B(2)(a). The relevant sexual offences are set out in Schedule 1 of that Act. They include ’any other offence, whether committed in Victoria or elsewhere, the necessary elements of which consist of elements that constitute any of the offences referred to in [Schedule 1]’: Sentencing Act 1991, Schedule 1 ss (g).
[37]Sentencing Act 1991, s 6D.
[38]Cf R v Mantini [1998] 3 VR 340.
Further, under s 6E of the Sentencing Act, every term of imprisonment imposed for a relevant offence must, unless otherwise directed by the court, be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed on appellant, whether before or at the same time as that term.[39] All the offences are relevant offences.[40] It follows that under s 6E, the sentences imposed for these offences must be served cumulatively, unless we exercise the discretion to order some degree of concurrency. In ReMcL[41] McHugh, Gummow and Hayne JJ said that this provision placed some limits on the scope of the totality principle. Having had regard to that qualification we consider it appropriate to direct that there be some degree of concurrency between the sentences imposed for these offences, having regard to the fact that they were all part of a single event.
[39]Sentencing Act 1991, s 6E. See also R v Mantini [1998] 3 VR 340, 346-348.
[40]As to counts 1 and 5 see Sentencing Act 1991, s6B(3)(c) and Schedule 1 cl (2)(c). As to counts 2, 3 and 4 see s 6B(3)(c)and Schedule 1 cl 1.
[41](2000) 203 CLR 452, [76].
At the time of committing these offences the appellant was on parole for the Queensland offences described in paras [4] and [60] above. When he was originally sentenced for these offences, the appellant’s parole had not been revoked.[42] However, on 9 August 2006, around three weeks after sentencing in this matter, the appellant’s parole was revoked so that he must now serve the remaining one year, seven months and six days of that sentence.
[42]At the time, the learned sentencing judge took into account, in a general way, the fact that there was a possibility that the appellant’s parole would be revoked, consistently with R v Orphanides (2002) 130 A Crim R 403. This case has since been overruled by R v Piacentino; R v Ahmad [2007] VSCA 49.
Section 16(3B) of the Sentencing Act 1991 provides:
Every term of imprisonment imposed on a person for an offence committed while released under a parole order made in respect of another sentence of imprisonment … must, unless otherwise directed by the court because of exceptional circumstances, be served cumulatively on any period of imprisonment which he or she may be required to serve in custody in a prison on cancellation of the parole order.
This provision applies to the sentence of imprisonment imposed in Queensland by virtue of the Prisoners (Interstate Transfer) Act 1983, s 27.[43] We do not consider there are exceptional circumstances warranting departure from this provision. We have, however, in accordance with the general sentencing principle of totality and the decision in R v Piacentino; R v Ahmad,[44] taken account of the extra one year, seven months and six days of imprisonment that the appellant will now have to serve as a result of the revocation of his parole.[45]
[43]See R v WMR (2005) 11 VR 370, 378. Queensland is a relevant interstate law for the present purposes by virtue of Prisoners (Interstate Transfer) Act 1983, s 6 and the order of the Governor in Council of 14 August 1984, which was published in Government Gazette (No. 87, 15 August 1984) 2860.
[44][2007] VSCA 49, [88] interpreting the effect of Sentencing Act 1991, s 5(2AA). See also R v Alsashkar; R v Tayar [2007] VSCA 182.
[45]See R v Piacentino; R v Ahmad [2007] VSCA 49, [71]. Because in this case the Court is exercising its re-sentencing discretion it is not necessary for the appellant to satisfy the requirements for admission of fresh evidence to have the cancellation of his parole taken into account, compare R v Alsashkar; R v Tayar [2007] VSCA 182.
Conclusion
Having regard to the above matters, we would sentence the appellant to the following terms of imprisonment:
·Count 1: Threat to kill (a representative count) — 3 years 6 months.
·Count 2: Rape — 8 years.
·Count 3: Indecent act with a child under 16 — 3 years.
·Count 4: Indecent act with a child under 16 — 3 years.
·Count 5: Intentionally cause serious injury — 4 years.
Having regard to the principle of totality and the need to avoid imposing a crushing sentence, we would order that, taking the sentence on count 2 as the base sentence, one year and six months of the sentence on count 1, one year and nine months of the sentence on count 3, one year and nine months of the sentence of count 4, and one year and six months of the sentence on count 5, be served concurrently with each other and with the sentence on count 2. This results in a total effective sentence of 15 years’ imprisonment for these offences.
We would impose a non-parole period of 12 years.
When the appellant was sentenced on 20 July 2006, the learned sentencing judge declared that he had served 138 days of pre-sentence detention in relation to these offences. The appellant’s parole in respect of the Queensland offences was cancelled on 9 August 2006, but the time which he has been in prison since 20 July 2006, both before and after 9 August 2006, has by reason of s 15(b) of the Sentencing Act 1991 been served in respect of the sentence imposed on 20 July 2006. Accordingly, we should declare that the period of 609 days has already been served in respect of the offences for which the appellant was sentenced on 20 July 2006 and for which we are re-sentencing him.
The learned sentencing judge made orders for the retention of an intimate forensic sample pursuant to s 464ZFB(1) of the Crimes Act 1958 and for the fact that the appellant was sentenced as a serious offender to be entered in the records of the court pursuant to s 6F of the Sentencing Act 1991. We would make orders in the same terms.
As his Honour noted, the appellant is a registrable offender under s 6 of the Sex Offenders Registration Act 2004. He will be required to comply with the reporting obligations of that Act for the rest of his life.[46]
[46]Sex Offenders Registration Act 2004, ss 34(1)(c)(i), 34(3), 34(4)(a), 5(1), 3, and Schedules 1 & 3.
Finally, we note that the appellant has already completed a sexual offenders treatment program. Despite the apparent lack of success of this program in preventing the appellant from re-offending, we observe that the prospects of the appellant re-offending again may be reduced by him participating in anger management and sexual offender treatment programs prior to his release from prison.
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