R v Elston

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 116 of 1999

THE QUEEN

ADAM KING ELSTON

---

JUDGES:	WINNEKE, P., CHARLES and CHERNOV, JJ.A.
WHERE HELD:	SHEPPARTON
DATE OF HEARING:	19 August 1999
DATE OF JUDGMENT:	19 August 1999
MEDIA NEUTRAL CITATION:	[1999] VSCA 137

---

Criminal Law – Five counts indecent assault and one count indecent exposure – Sentence – Whether manifestly excessive – Partial cumulation – Whether statutory prima facie rule of concurrency displaced – Sentencing Act, s.16(1) – Totality.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. J.D. McArdle, Q.C.	P.C. Wood, Solicitor for Public Prosecutions
For the Applicant	Mr. D. Grace, Q.C.	Stary George Myall

WINNEKE, P.:

I will invite Chernov, J.A. to give the first judgment in this application.

CHERNOV, J.A.:

On 18 May 1999, the applicant, who is now aged 29, pleaded guilty in the County Court at Melbourne to five counts of indecent assault contrary to s.39(1) of the Crimes Act 1958 and one count of the summary offence of indecent exposure contrary to s.7(1)(c) of the Vagrancy Act 1966. The offences had been allegedly committed by him in the early hours of 15 October 1998 against a 17-year-old girl. After hearing a plea in mitigation of sentence made on the applicant's behalf, his Honour sentenced him on 26 May 1999 to an effective total sentence of 20 months' imprisonment with a non-parole period of 12 months and declared that seven days be reckoned as having been served as pre-sentence detention.
By notice of application for leave to appeal against sentence dated 31 May 1999, the applicant seeks leave to appeal against the sentences on grounds that can be divided into two categories:

(1) Grounds 1 - 4, which relate to the claim that the sentences are manifestly
excessive;
(2) Ground 5, which attacks cumulation.

The relevant circumstances surrounding the commission of the offences are not in dispute and can be briefly stated. On the morning of 14 October 1998, the complainant became involved in an argument with her mother with whom she lived, as a result of which she was effectively told to leave home. That evening she visited her boyfriend. She left him late in the evening and travelled by taxi to the vicinity of the Essendon railway station, arriving there at about midnight. There she made several telephone calls from a public telephone box, one of them being an unsuccessful attempt at reconciliation with her mother. She was upset at being unable to achieve the reconciliation and sat down in the doorway of a butcher's shop.
The applicant had spent the evening of 14 October 1998 visiting separately with each of his two girlfriends, leaving the house of the second around midnight. Whilst driving in the direction of his home he noticed the complainant standing in the public telephone box. He parked his car, walked on the opposite side of the road to the complainant and went to the toilet in a laneway. The applicant then approached the complainant - who, as I have said, was sitting in the doorway of a butcher's shop - with his pants undone and his penis exposed. He asked the complainant for oral sex but she refused. This act became the subject of the summary offence of indecent exposure.
The applicant then asked if he could feel her breasts but again the complainant refused. Ignoring this response, the applicant commenced to squeeze the complainant's left breast over the top of her clothing. That act was the subject of count 1 on the presentment.
The applicant then sat down alongside the complainant and took hold of her right arm. They remained there for some twenty minutes, during which time the applicant touched the complainant on the vagina over her clothing. That act constituted count 2 on the presentment.
The applicant then stood up and led the complainant to a reserve behind the shops. Seating himself underneath a tree, he pulled the complainant down so that she was sitting between his legs with her back to him. He undid her jeans and placed his hands beneath her underwear, touching her on the outside of the vagina. This act became count 3 on the presentment.
They then stood up and the applicant told the complainant to lie on her back. Instead, she sat down but he pushed her on to her back and sat on her chest. His erect penis was exposed. The applicant repeated his earlier request for oral sex and she again refused. He then commenced to masturbate and the complainant asked him to stop. He responded by telling her that he would not let her go unless she kissed his penis. The complainant did so, and that act is the subject of count 4 on the presentment.
After they stood up, the applicant pushed the complainant to the ground on to her stomach. He pulled her jeans and underwear down and she felt his penis rubbing against her backside. That became count 5 on the presentment.
The complainant tried to move away from the applicant but he would not let her loose. After a while, however, he departed. Throughout this period the complainant was in fear of the applicant.
Unbeknown to him, a time-lapse camera recorded the applicant at or near the Essendon station at approximately 1 a.m. on the morning in question. This photo was later broadcast on television and a photo likeness of the applicant was published in newspapers. Shortly thereafter the applicant was advised by his mother, who saw her son's photograph on television, that he was sought by the police for questioning, and he became aware that they intended to come to his home. He thereupon presented himself to the police station on 27 October 1998 and was interviewed in relation to the incident. Although initially the applicant told the police of only some of his conduct towards the complainant, ultimately he admitted to all the acts that have been described earlier.
He was subsequently charged and on 17 May 1999 was presented at the County Court on a presentment alleging five counts of indecent assault, one count of false imprisonment, two counts of attempted rape and one count of assault with intent to rape. The applicant pleaded not guilty and the matter was adjourned until 18 May 1999.
On that day, a new presentment was filed alleging five counts of indecent assault. The applicant pleaded guilty to this presentment and the related summary offence of indecent exposure. The judge stayed all proceedings on the earlier presentment. He noted in his sentencing remarks that he did not treat the offences to which the applicant pleaded guilty as aggravated by the earlier allegations, or as merely another way of describing the totality of the offences charged in the first presentment.
On 19 May 1999, his Honour proceeded to hear a plea in mitigation on behalf of the applicant, during the course of which he received as exhibits various reports including one from a clinical psychologist, Bernard Healey. His Honour also had before him a victim impact statement from the complainant.
His Honour sentenced the applicant to three months' imprisonment on count 1, six months' imprisonment on count 2, nine months' imprisonment on count 3, 12 months' imprisonment on each of counts 4 and 5, and three months' imprisonment on the summary charge of indecent exposure. Because his Honour considered that there were aspects of the indecent exposure and of the two final incidents which made total concurrency not appropriate, he directed that three months of the sentence on count 3, five months of the sentence on count 4, four months of the sentence on count 5 and two months of the sentence on the summary charge be served cumulatively upon each other and cumulatively upon the sentence on count 2, thereby making an effective total sentence of 20 months with a non-parole period of 12 months.
I now turn to deal with the grounds for leave to appeal, and I first deal with grounds 1 to 4. Mr Grace, who appeared for the applicant, submitted that grounds 2 to 4 are essentially particulars of the arguments to be advanced in support of ground 1 by which it is contended that each sentence was manifestly excessive. Mr Grace's first argument was that his Honour failed to abide by the requirements of s.5(4) of the Sentencing Act 1991 by imposing an immediate custodial sentence.
In my view, however, it is clear from his Honour's sentencing remarks that he concluded that the applicant had to serve a term of imprisonment if the purpose for which he imposed the sentence was to be achieved. In particular, he considered that in the context of the case before him, denunciation and specific deterrence required the imposition of an immediate custodial sentence. In my opinion, therefore, his Honour did not fail to have regard to the requirements of s.5(4) of the Sentencing Act as was contended for on behalf of the applicant.
Mr Grace further submitted that his Honour failed to take into account or give sufficient weight to (a) the applicant's age, family support and previous good character; (b) the contribution that the applicant has made to the community as evidence of his general reputation; (c) the applicant's education and employment history; (d) the applicant's co-operation with the authorities; (e) the applicant's plea of guilty; and (f) the applicant's remorse evidenced by his co-operation with the authorities and his plea of guilty. The principal basis on which Mr Grace made that submission was that many of these matters were not mentioned by his Honour in his sentencing remarks.
In my view, however, it is plain that his Honour took all these matters into account in sentencing the applicant. Many of them were specifically recognised by the judge in his sentencing remarks, such as the applicant's age; his contribution to the community; the fact that he had no relevant prior convictions and therefore was of good character until the events in question and his education and employment history. In particular, it is clear from the discussions between his Honour and counsel during the plea in mitigation and from his sentencing remarks, that the judge took into account the applicant's plea of guilty.
To the extent that some of the matters were not specifically mentioned by his Honour in his sentencing remarks, it is plain that they were nevertheless considered by him in the sentencing process. They were all raised in the course of the submissions made by counsel for the applicant. For example, the judge had before him Mr Healey's report which spoke in glowing terms about the family support which the applicant enjoyed and about a range of other matters personal to him. Furthermore, there is no indication that his Honour disregarded those matters in the course of sentencing the applicant. In the circumstances, including his Honour's considerable experience as a trial judge, the presumption of regularity would, in my view, operate to make such a conclusion inescapable: see R. v. Watts [1998] 4 V.R. 244, per Charles, J.A. at 247 and R. v. Sener [1998] 3 V.R. 749, per Batt, J.A at 751. Consequently, I have no difficulty in concluding that his Honour took into account when sentencing the applicant, all the matters to which Mr Grace referred.
Before dealing with Mr Grace's submission that his Honour failed to give sufficient weight to those matters, particularly matters personal to the applicant, and his plea of guilty, it is convenient to refer to his submission that his Honour placed insufficient weight on the applicant's efforts at rehabilitation prior to the court appearance on 19 May 1999 and on his prospects of further rehabilitation. This submission springs, at least in part, from his Honour's conclusion that he was "unable to place much weight upon Mr Healey's conclusions".
In my view, it is plain from his Honour's sentencing remarks that he took into account in the relevant sense, the applicant's rehabilitation. The judge knew from the Healey report that the applicant had attended eight counselling sessions between 29 October 1998 and 16 December 1998, and it is clear enough, in my view, that this was taken into account by him in reaching the conclusion expressed in his sentencing remarks that "I must and do have regard to your rehabilitation".
It was Mr Healey's conclusion, in part, that by reason of the counselling process and other factors, the applicant had become less depressed and anxious about his relationship with his girlfriends, the inference being that the applicant was now relatively, or almost, in control of himself. His Honour said that he did not place much weight on Mr Healey's conclusion because the psychologist had effectively ignored the relevance of the applicant's May 1998 offending to any clinical assessment of him. In my view, it was open to his Honour to reach that view, bearing in mind that the report proceeds on the basis that the applicant's offending on 15 October 1998 was "unprecedented", thereby ignoring the earlier offence. In particular, it ignores the fact that when the applicant committed the offence in October 1998, he was then facing a court appearance in approximately two weeks' time for an earlier offence of indecent assault of a sexual nature on a woman. In my view, no sentencing error was committed by his Honour in adopting the course he did in relation to the Healey report.
I mention for completeness that the report did not deal in any definitive way with the matter that concerned his Honour, namely, the likelihood that the applicant may re-offend. It was his misconduct in May 1998 that provided, in his Honour's opinion, a basis for the emphasis on specific deterrence in his sentencing considerations. This was apparently conceded by the applicant's counsel during the plea in mitigation. But whatever view one may take about his Honour's attitude to Mr Healey's conclusion, his Honour plainly had regard to the applicant's endeavours at rehabilitating himself when he considered what sentence should be imposed on him.
I now come back to Mr Grace's submission that the sentences which he claims are manifestly excessive reflect a failure by his Honour to give sufficient weight to the applicant's plea of guilty, remorse, personal circumstances, lack of relevant prior conviction, actual rehabilitation and co-operation with the authorities. Implicit in this submission is the contention that, had his Honour given those matters due weight, the sentences would have been shorter and therefore, not excessive. It is difficult to consider meaningfully the question of whether sufficient weight has been given to such relevant matters in isolation from the question whether the sentences were excessive, unless, of course, failure to give due weight is apparent from the sentencing remarks or some other relevant material.
Before examining this question it is necessary to consider the weight that should have been accorded to the matters listed by Mr Grace. Turning first to the plea of guilty, for reasons I have given earlier, it is plain that his Honour took it into account in determining the appropriate sentence and that he gave a sentencing discount for the plea of guilty. That the applicant had ultimately co-operated with the authorities was also known to his Honour. But in my view, neither the plea of guilty nor the applicant's so-called co-operation with the authorities reflected much remorse on his part, particularly for the position of the victim. The plea of guilty was made after the committal proceeding and after the strength of the Crown case was known to him. Perhaps more importantly, it was made after he had, in effect, admitted committing the acts which formed the basis of the charges. As to his so- called co-operation with the authorities, it should be borne in mind that the police were about to come to his home, so that his voluntary attendance at the police station on which Mr Grace relied, cannot be given much weight. Moreover, the applicant was less than frank when he was first questioned by the police. I have already mentioned that his Honour recognised in his sentencing remarks, and therefore gave weight to, the applicant's earlier good character and his rehabilitation.
I now turn to the question of whether the sentences are manifestly excessive. It has often been said by this Court, in effect, that the question of whether a sentence is manifestly excessive does not admit of much argument: it either appears to be so on its face or it does not. In my view, the sentences are within the ranges that were available to his Honour in the circumstances of this case. Even though those imposed in respect of counts 2 and 3 may be properly regarded as being at the higher end of the relevant range, the total effective sentence of 20 months is, in my view, not manifestly excessive. The offences were serious and attracted a maximum prison sentence of 10 years in relation to each count involving indecent assault and two years in the case of the summary offence. The victim was a young woman in a distressed state who the applicant intended to shock by exposing his penis to her in a public street in the early hours of the morning. Physically he was stronger and bigger than she was and, as his Honour said, he exploited that advantage to achieve sexual gratification at the victim's expense in an isolated spot where he no doubt thought he would not be interrupted by passers- by. It was open to his Honour to conclude, as he did, that the incident had a serious detrimental effect upon the victim which may continue for some time. The offences towards the end of the incident in particular were at the more serious end of the range of indecent assaults and were degrading and humiliating to the victim. In my view, the assaults called for denunciation and deterrence, both general and specific. In the circumstances, the applicant has failed to demonstrate, in my view, that the sentences are manifestly excessive.
For these reasons, grounds 1 to 4 have not been made out.
I now turn to ground 5, by which it is contended that the judge erred in cumulating some of the sentences. Mr Grace submitted that his Honour did not have, and did not articulate, good reasons for displacing the prima facie rule set out in s.16(1) of the Sentencing Act 1991 that every sentence of imprisonment is to be served concurrently with any other sentence, and instead directing partial cumulation. His Honour said in his sentencing remarks that although in one sense the offences were part of the one transaction, there were aspects of the indecent exposure and the incidents of kissing the penis and moving it near the buttocks which indicated that total concurrency was not appropriate. Mr Grace contended, however, that this did not amount to good reason for displacing the statutory prima facie rule and that in any event, his Honour's reasons related only to the summary charge and counts 4 and 5 but did not cover partial cumulation of counts 2 and 3. It was his submission that the offending occurred as a continuing course of conduct so that total concurrency was appropriate.
In my view, the mere fact that his Honour did not give reasons for making the direction for cumulation beyond what has already been mentioned is not fatal to his decision on that issue: see R. v. Mantini (1997) 95 A.Crim.R. 33, per Callaway, J.A. at 36, 41,
Mr McArdle, who appeared for the respondent, submitted, correctly in my view, that although the offences were continuous in the sense that the applicant committed them one after the other within the one meeting with the victim, they can be properly divided into three sets of incidents that are materially different one from the others. The first was the applicant's exposure of his penis when he approached the victim. The second group of offences occurred when he and the victim were in the street; they are the subject of counts 2 and 3. The third set of offences took place at the isolated spot some distance away from the doorway of the butcher's shop; those offences were the subject of counts 4 and 5 and, as his Honour recognised correctly, I think, were at the more serious end of indecent assaults. In those circumstances, it was not inappropriate for his Honour to direct partial cumulation of the sentences.

Mr Grace also argued that the sentence of 20 months' imprisonment with a non-parole period of 12 months violates the principle of totality. In my view, however, the aggregate sentence of 20 months' imprisonment cannot be said to be unjust or inappropriate, bearing in mind the totality of criminality that was involved in the applicant's conduct. In my view, the principle of totality has not been breached in relation to the total effective sentence. On one view, the non- parole period was on the high side, but in the end I have concluded that it was not manifestly excessive. Hence, in my view, there is no violation of the principle of totality.
For these reasons, ground 5 has not been made out. Consequently, I would dismiss the application.

WINNEKE, P.:

I agree, for the reasons given by Chernov, J.A., that this application should be dismissed. Notwithstanding all that has been said on behalf of the applicant, I am not, at the end of the day, persuaded that his Honour's sentencing discretion has miscarried, either as to the individual sentences imposed or in respect of the total effective sentence.
In so concluding, it should not be assumed that I am not sympathetic to the plight of the applicant and his family. Crimes such as these are not infrequently committed by persons of generally good character and who come from good, supportive families. As a consequence, the imposition of penalties of imprisonment causes a great deal of heartache. However, this Court is a court of review and it has no power to intervene unless it is satisfied that the sentencing discretion below has in fact miscarried. For the reasons that have been advanced, I am not persuaded that it has.

CHARLES, J.A.:

I agree with both judgments that have been delivered.

WINNEKE, P.:

The formal order of the Court is that the application for leave to appeal against sentence is dismissed.

[1999] VSCA 137

19 August 1999