R v Gray
[2000] VSCA 82
•12 May 2000
SUPREME COURT OF VICTORIA
COURT OF APPEAL Not Restricted
No.335 of 1998
| THE QUEEN |
| v |
| SHANE FRANCIS GRAY |
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JUDGES: | BROOKING, CHARLES and BATT, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATES OF HEARING: | 11 and 12 May 2000 | |
DATE OF JUDGMENT: | 12 May 2000 | |
MEDIUM NEUTRAL CITATION: | [2000] VSCA 82 | |
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CRIMINAL LAW - Sentencing - Serial rapes, burglary and other sexual and violent offences - Rehabilitation - 17 years' imprisonment with 12-year minimum not manifestly excessive.
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APPEARANCES: | Counsel | Solicitors |
For the Crown | Mrs. C.M. Quin | P.C. Wood, Solicitor for Public Prosecutions |
| For the Applicant | Mr. P.F. Tehan, Q.C. | P.W. Dwyer |
BROOKING, J.A.:
Batt, J.A. will deliver the first judgment.
BATT, J.A.:
The applicant, Shane Francis Gray, who is now 31 years and, at the dates of the offences, was aged between 26 years and 29 years, pleaded guilty on arraignment in the County Court at Melbourne on 27 July 1998 to all 25 counts of a presentment. Those counts were nine of rape, contrary to s.38 of the Crimes Act 1958; one of making a threat to kill, contrary to s.20; three of indecent assault, contrary to s.39; four of recklessly causing injury, contrary to s.18; three of burglary, contrary to s.76, the intent charged being intent to rape; one of recklessly causing serious injury, contrary to s.17; two of making a threat to inflict serious injury, contrary to s.21; one of assault with intent to rape, contrary to s.40; and one of exposure, contrary to the common law. The maximum penalties applicable to those offences were imprisonment for the following terms, namely for rape 25 years; for making a threat to kill five years; for indecent assault 10 years; for recklessly causing injury five years; for burglary 10 years; for recklessly causing serious injury 10 years; for making a threat to inflict serious injury three years; for assault with intent to rape 10 years; and for exposure two years. The penalties I have stated were those applicable at the dates of the offences except for the counts of making a threat to kill and exposure, where a subsequently reduced maximum penalty applied in each case by reason of s.114(2) of the Sentencing Act 1991.
The offences to which the applicant pleaded guilty fall into six groups, each group of offences being committed against a different woman. (I treat the woman before whom the applicant exposed himself publicly as a victim, although she is not named in the count.) The first group of offences occurred on 4 June 1995 and the last on 27 January 1998. The groups of offences occurred at Mitcham, Kew, Mooroolbark (in two cases), South Yarra, and Ringwood. The rapes consisted, in seven cases, of penetration of the vagina by penis, fingers or tongue and, in two cases, of penile penetration of the mouth.
The applicant had previously pleaded guilty, at the earliest opportunity, at the committal hearing, which accordingly had proceeded by way of hand-up brief.
The applicant admitted 33 previous convictions from 16 court appearances between 13 February 1987 and 17 July 1997, for some of which he was sentenced to be imprisoned. Those offences included unlawful assault and six charges of breach of intervention orders, but no offences of a sexual nature. As regards one occasion when he was given a suspended sentence of imprisonment he was brought up for breach of the suspended sentence and as regards the two occasions when he was placed on a community-based order he was brought up for breach of that order.
Immediately after the applicant's arraignment the County Court judge heard a plea in mitigation of penalty, during which Dr P.J. Doherty, a consultant psychiatrist, gave evidence. His report of 24 July 1998 was tendered. The applicant did not give evidence to confirm the history Dr Doherty recorded him as having given.
On 29 July 1998 his Honour sentenced the applicant to be imprisoned as follows:
Count 1 - Threat to kill two years;
Count 2 - Indecent assault two years;
Count 3- Rape seven years, three years cumulative upon counts 10,15 and 24;
Count 4 - Recklessly causing
injury one year;
Count 5 - Burglary five years;
Count 6 - Recklessly causing
serious injury five years;
Count 7 - Threat to inflict
serious injury one year;
Count 8 - Indecent assault two years;
Count 9 - Rape four years;
Count 10 - Rape eight years;
Count 11 - Burglary five years;
Count 12 - Threat to inflict
serious injury one year;
Count 13 - Indecent assault two years;
Count 14 - Rape six years;
Count 15 - Rape eight years, four years cumulative upon counts 3,10, and 24;
Count 16 - Recklessly causing injury one year;
Count 17 - Burglary five years;
Count 18 - Recklessly causing injury one year;
Count 19 - Assault with intent to
rape five years;
Count 20 - Exposure three months;
Count 21 - Rape six years;
Count 22 - Rape four years;
Count 23 - Rape four years;
Count 24 - Rape seven years, two years cumulative upon counts 3, 10, and 15;
Count 25 - Recklessly causing injury one year,
making a total effective sentence of 17 years' imprisonment. His Honour fixed a non-parole period of 12 years and declared that 180 days of pre-sentence detention be reckoned as a period of imprisonment already served under the sentence. Pursuant to s.6F of the Sentencing Act he recorded that the applicant was sentenced as a serious offender on counts 5, 6, 7, 9, 10, 11, 12, 14, 15, 17, 19, 21, 22, 23 and 24. His Honour also ordered, pursuant to s.464ZF of the Crimes Act, that the applicant provide an intimate forensic sample.
On 23 February 1999 the Registrar of Criminal Appeals granted the applicant an extension of time to lodge a notice of application for leave to appeal against sentence dated 25 September 1998 and filed on 28 September 1998 containing the sole ground that the sentence in all the circumstances was excessive.
I shall state the facts relating to the offences sufficiently for present purposes if I quote the summary in his Honour's reasons for sentence. More detail is contained in the agreed summary before the Court and much more detail in the depositional statements of the victims. It is unnecessary to set out the latter, but it would be wrong not to record that those statements give graphic, detailed, descriptions of the applicant's attacks and of the struggles which the victims put up in the face of his threats and superior strength. They convey some, but only some, idea of the terror which the applicant's attacks must have instilled in the women. That matter is confirmed and amplified by the victim impact statements, which show the trauma caused to each victim, their fears, including fear of infection, their insecurity, anger and inability to concentrate, the stigma they feel and the need experienced by two of them to move interstate.
His Honour's summary of the facts of the offences, addressed to the applicant, is as follows:
"Counts 1 to 4 concerned [Miss A]. They took place on 4 June 1995 when [Miss A] was a single person aged 21. She had been to a party and thereafter went to a nightclub known as 'Jooce'. She determined, after being at such nightclub, to walk home and chose, unfortunately, to walk home along the Maroondah Highway. It would appear from the depositional material that she disturbed you having turned off the Maroondah Highway, in circumstances where you were masturbating.
Thereafter, you apparently followed her, dragged her to the ground despite her struggling and her continued screaming. You then threatened to kill her, the circumstances of which make up Count 1. You were holding on to her mouth to stop her from screaming and you then forced her to masturbate you, the circumstances of which make up Count 2. You then had sexual intercourse with her, the circumstances of which make up Count 3, and during such attack you caused injuries to her, Count 4. The physical injuries, at least, were minor and of an abrasive type as are set out in the depositional material of Dr Odell at p.182.
While such criminality insofar as [Miss A] is concerned is part of one continuous episode, the total criminality of those events displayed by you is gross and high on the scale of criminality.
The next victim was [Miss B]; those matters concern Counts 5 to 10. These matters occurred on 18 June 1995 where [Miss B] was at her home, studying for a graduate diploma. She was aged 35 and lived on her own, and after studying at night she went to bed at approximately one o'clock. It is difficult to be precise, but it would appear somewhere around 5.30 a.m. you entered her house as a trespasser with intent to rape, the circumstances of which make up Count 5.
You had a knife with you and you continually threatened, throughout her trauma, to use it upon her, such threats making up Count 7. At some stage throughout this attack, she cut her hand severely, the circumstances of that make up Count 6. While you still had the knife, you forced her to masturbate you, Count 8, you placed two fingers inside her vagina, Count 9, you then had intercourse with her, ultimately ejaculating over her left thigh, using no condom despite her request, the circumstances of that making up Count 10. Again, while these crimes comprise one continuous episode, the criminality is gross and at the high end of the scale of criminality.
The next victim was [Miss C], and those matters concern Counts 11 to 16. [Miss C], at the time, was a barmaid/ waitress by occupation and on the date of this attack, being 1 October 1995, she was aged 26. She was a mother of two children and lived at her home with a friend and her children. Fortunately, neither that friend nor those two children were home at the time, although perhaps unfortunately for [Miss C].
She had left work at 5.00 a.m. that morning from her occupation and after preparing for bed, was only just in bed when she was disturbed by you in circumstances where you entered her home for the purpose of rape, those circumstances making up Count 11. You had a black stocking mask upon you and, on entering, you said to her: 'If you scream, I will cut you', and also grabbed her tongue; again, those circumstances making up Count 12 which was the threat to inflict serious injury.
You subsequently forced her to masturbate you, the circumstances of which make up Count 13; you then had oral sex with her, the circumstances of which make up Count 14; you then had intercourse with her, Count 15. Again, throughout the time you maintained the threats to stab her. In this trauma, [Miss C] suffered - and I am talking only physically - a number of abrasions, those matters making up the particulars of Count 16.
Again, they form a continuous episode, all of such counts undertaken on 1 October 1995; again, the totality of the criminality is gross and high on the scale of criminality.
Counts 17 to 19 concern [Miss D] when she was aged 47 and on 4 February 1996 was at home at her flat in Prahran. She can count herself particularly fortunate. When you invaded her home, which, pursuant to the circumstances of your plea, you entered as a trespasser with the intent to rape, she screamed and continued to scream despite you grabbing her mouth and she was fortunate in this case that you desisted. The assault was made up of the grabbing of her mouth, and [Miss D] was particularly fortunate that matters did not progress much further, although as she said, the manner in which you first entered her home caused her gross trauma, as is evidenced by her victim impact statement.
Count 20 is somewhat unusual, but is simply a matter of you exposing yourself in a public place. The circumstances are somewhat bizarre in the sense that you sprinted past [Miss E] naked. Again, it would appear that [Miss E] was particularly fortunate.
The final circumstances relate to [Miss F], and those matters make up Counts 21 to 25. They took place on 27 January of this year [scil, 1998] when [Miss F] was aged 28. She had enjoyed a night out with her boyfriend and they both, as was their wont, got on different trains for different lines embarking from Melbourne. Hers was to travel home to Mooroolbark where she had her car parked. As she was getting in the car, she was attacked by you in a most violent manner. Despite her screams and struggling which, as I say, this is relevant to all the victims but she seemed particularly brave in the manner in which she fought you, it was impossible for her; she pushed the horn on numerous occasions, she screamed on numerous occasions, however all to no avail.
You ultimately forced her out of the car and into an area of bush where you proceeded to assault her in the manner as set out in the counts. Firstly, you forced her to indulge in oral sex with you, Count 21; you placed your three fingers in her vagina in a most violent manner, Count 22; you placed your tongue inside her vagina, Count 23; you then had intercourse with her, Count 24; and then you recklessly caused her injury, again from a physical point of view, of a minor nature, Count 25.
This was one continuous episode, involved gross criminality on your behalf and again can be classified as high on the scale of criminality."
It was only through the alertness of the wife of the applicant's employer and the employer's public spiritedness that the applicant was identified and apprehended on 30 January 1998 in respect of the offences of three days earlier. He was interviewed by police on 30 January. Initially, on advice he made "no comment" answers to relevant questions, but when the interview re-commenced an hour later he admitted the offences of 27 January. As a result of forensic procedures the applicant's DNA was linked to evidence held by the police in relation to the earlier offences, which were until then unsolved.
Because particular reliance was placed by the applicant on Dr Doherty's views, it is necessary to state the salient points of his report and oral evidence. In his report Dr Doherty recorded that, according to the applicant, the first rape occurred some two months after the break-up of the applicant's first significant relationship with a woman. The applicant had lived with her for some six or seven years and she had borne him two children, aged eight and seven at the date of the report. Dr Doherty also recorded that, according to the applicant, the last rapes occurred shortly after the birth by caesarean section in January 1998 of a child to the woman with whom the applicant had commenced a relationship in August 1996. That woman was visiting him in prison at the time of the plea and is, we were told, still supporting him. Dr Doherty expressed the opinion that the applicant's overall intellectual functioning was of average intelligence. He stated that the applicant had informed him that he had a moderate level of family support, particularly from his mother and siblings and his current girlfriend. The applicant felt guilty and remorseful. The salient observation at interview was his depression and distress, which, the report makes clear, arose from his shame at what he had done and his reaction to incarceration. Under the heading of his opinions and recommendations Dr Doherty stated that the applicant had a "particularly restricted personality repertoire", was introverted and had difficulty dealing with conflict situations. The applicant had informed him that the rapes occurred in situations of high emotional arousal, at times of particular inter-personal conflict when he felt abandoned and depressed, and had also informed him that they were opportunistic and not premeditated. (I take leave to doubt whether, on the evidence before this Court, that is true of the 1996 offences.) Dr Doherty was of opinion that the applicant suffered from abnormalities in his personality make-up, particularly in his ability to deal with inter-personal conflict and his self-esteem. He had had difficulties with authority from an early age, with early involvement with the law. By reason of matters mentioned the applicant had, in Dr Doherty's opinion, a disorder of his personality. There was no evidence on examination of a severe mental illness, in particular a psychotic illness, or that the applicant suffered from paraphilia or a dysfunction of sexual desire. He would be assisted by counselling about inter-personal skills, conflict resolution and drug abuse (which, along with alcohol abuse, Dr Doherty had mentioned earlier). Dr Doherty could detect no history suggestive of a more deep-seated abnormality of sexual urge or desire and his opinion was that the applicant suffered from impulse control problems when under stress. He concluded his report:
"His severe psychological reaction of guilt and depression to incarceration, and his remorse are good prognostic signs which would indicate [the applicant] has a lower than average propensity for recidivist activity. The fact that he has now pleaded guilty and will be sentenced, and that the assaults occurred at times of heightened emotional arousal and stress also add weight to the argument that he has a lower expectation of offending again. Also, he has maintained support from his family and should that continue he will be benefited by it."
In the course of his evidence-in-chief Dr Doherty in substance confirmed his report. Amongst other things, he said that in summary the applicant had a significant impairment of personality function. His problem in essence was one of abuse of drugs in a person who had a severe problem with dealing with crisis situations and abnormal responses thereto, which led him to act in such an aggressive and hostile manner, acting out his frustration. He said that there was a consistent pattern of heavy illicit drug use and alcohol use at the time of the offences. Asked about his prospects of re-offending upon release, Dr Doherty said he thought that there were some mitigating factors. He said that this was the first time the applicant had been incarcerated and he had had a severe psychological reaction to that. (I interpolate that in fact this was not the first time that the applicant had been incarcerated.) Dr Doherty said that in addition attempts could be made to deal with emotional arousal and intoxication at prison counselling services and post-release counselling services. When asked why, if subjected to similar levels of stress on release, the applicant would not react in a similar way, Dr Doherty answered, "Well, we can only make a forecast and speculate about this, of course", and went on to refer to the two factors already mentioned.
In cross-examination he acknowledged that at the time of the offences the applicant had had a level of family support, but said that it was not organised as it was at the time of the plea. Asked about the intervention orders, he acknowledged that the applicant had a problem with authority at school, but said that the breach of the intervention orders indicated to him that the applicant's desire for access to his children overrode the controls that were attempted to be placed upon him. (I must say that, nevertheless, the breaches seem to me to betoken disregard for law and authority.) Dr Doherty said that the nature of the breaches in the applicant's mind was very different to the assaults and violence he occasioned on the victims of the matters before his Honour. He expressed the view that there was not a strong pattern of similar ways of dealing with each of the victims, but he did agree that all the groups of offences had been violent and "assaultive". When asked whether the applicant continued to be a threat to members of the community, especially females, Dr Doherty said that the forecast with regard to that "is awfully difficult to make". He then referred to the favourable factors already mentioned. When asked as the last question in cross-examination whether the applicant's previous continuing to offend, even at the Magistrates' Court level, would cause him to have less confidence in the applicant's ability not to offend in the future, Dr Doherty said, "I think you are right, it gives less confidence with regard to it though we can attempt to separate inter-personal family conflicts from the violence ...". After Dr Doherty had been re-examined the judge asked him some questions. The last question and answer were as follows:
"Q:Well, it's obvious if something is not done he would still remain a threat and a very dangerous threat?
A: Certainly the nature of the offences gives rise to a good deal of concern. As I say, the mitigating factors are his reaction and availability of treatment ..."
Rape by its nature is a very serious offence. That is confirmed by the maximum penalty for it, which is at the highest level apart from life imprisonment. Each group of offences was very serious. (I exclude from these comments the exposure offence, though from the applicant's answer to a question during his interview by police it is clear that, but for the speed and good fortune of Miss E, that offence would have matured into rape.) The concatenation of the groups of offences makes the offending grave indeed. It is not the case of one single criminal episode, but of five (or six with the exposure). The offences extend over two-and-a-half years. All involve force and humiliation of the victim. They were all committed at night upon lone, defenceless women in places where they were entitled to feel safe, either their homes or the street or environs of railway stations. In at least one case a knife was used and in two cases a disguise. Threats were made. Moreover, the applicant's prior convictions show a sustained disregard of law and authority. The enormity of the applicant's offending was recognised by counsel appearing for him in the County Court, who said in the opening remarks of his plea in mitigation:
"... at the outset, Your Honour, it's hard to imagine offences that could be more grave that would come before this court - a very large number of rape offences which carry a maximum of 25 years, other serious sexual offences and other offences of a similar nature, many of which carry considerable features of aggravation."
Before us, both in writing and orally, Mr Tehan directed his submission that the sentence was manifestly excessive to the applicant's prospects of rehabilitation or the unlikelihood of his re-offending. Mr Tehan advanced five factors which he contended made for a conclusion on rehabilitation favourable to the applicant. Those factors were:
1. The applicant had no sexual abnormality, but a personality disorder.
2.Most unusually for a serial sex offender, he had no prior convictions for sexual offences, his record being consistent with his being a drug abuser.
3.He was still young.
4.Despite what had been put in relation to the first factor, which I mention later, there were some stabilising influences in his life, such as the support of his father and girlfriend and the fact that they had a son now aged two-and-a-half years.
5.The applicant was appropriately overcome with a sense of guilt, self-blame and remorse.
Mr Tehan relied particularly on the last paragraph of Dr Doherty's report, which I have set out earlier, saying that it really summarised the five factors. Mr Tehan did not elaborate upon the factors other than the first. In regard to the fifth, however, he did acknowledge that remorse for the 1995 and 1996 offences appeared to arise only after his arrest in 1998. As to the first, counsel relied upon Dr Doherty's report and evidence, the salient features of which I have also set out earlier, and referred to some further facts relating to the applicant's background, most of which are set out in the judge's sentencing remarks and which I do not think it is necessary to repeat, except to say that the applicant was, Mr Tehan informed the Court, free of alcohol and drugs in prison. Mr Tehan stated that the first factor was relevant in two ways. First, it provided general background. In that regard he stressed his submission that the applicant was "inadequate", completely "unable to cope" in a crisis. Secondly, he said, here was a man who "with proper treatment and counselling hopefully will not re-offend". (My emphasis.) It is true that, although the judge said that Dr Doherty's evidence was "perplexing, to say the least", and that his analysis was "chilling", for it might be that the applicant simply enjoyed raping women, he did accept "his expert evidence". His Honour summarised much of it. At two points he said in substance that Dr Doherty was at pains to indicate that his professional opinion was that with specialist counselling and treatment the applicant could overcome his difficulties in the future and not be a threat to the community, or could learn to cope with stress. (My emphasis.) But, whilst the judge indicated in a passage I shall set out later that the applicant's rehabilitation was a matter to be considered, his Honour, as it seems to me, did not draw from Dr Doherty's evidence, even in his reference to the latter's professional opinion that the applicant could overcome his difficulties, the conclusion that the applicant's prospects of rehabilitation were strong or even reasonable. Although not all the plea had been transcribed at the time this application was argued, a detailed argument about rehabilitation does not seem to have been put to the sentencing judge. So there are not explicit findings by his Honour on the matters put to this Court. But that would not seem in principle to prevent this Court from considering rehabilitation for the purpose of deciding whether the sentence was manifestly excessive. If, contrary to my understanding, his Honour is to be taken to have found the applicant's prospects of rehabilitation were strong or good or reasonable, I respectfully disagree, for it seems to me that it is not possible to draw that conclusion on the balance of probabilities from Dr Doherty's report and evidence, even with the other four factors relied on. I say this for a number of reasons. Dr Doherty's statements were very cautious. He was hesitant to make a forecast. The first of the two mitigating factors that he mentioned from time to time seems to me to be concerned more with the applicant's realisation of the plight he found himself in when incarcerated than with the necessary change in personality. The second of the two factors is not specific to the applicant. To my mind, it could be applied to all persons with like problems, of whom one sitting in this Court hears that there are many. The factor does not show likelihood of reformation but the merest possibility of it. Further, as Charles, J.A. pointed out in argument, the answers Dr Doherty gave to the last question in cross-examination and the last question of his Honour make it impossible to find on the balance of probabilities that the applicant was unlikely to re-offend. When regard is had to the applicant's prior convictions and in particular those constituted by breach of court orders, the view I have expressed is strengthened.
Thus, I do not consider that his Honour found, or was entitled to find, that the applicant's prospects of rehabilitation and not re-offending were strong or good or even reasonable. Consequently, the first step in Mr Tehan's two-step argument is not made out. Nevertheless, I turn to the second step. Mr Tehan submitted that 17 years was a very long period of imprisonment, especially for a young man, and more especially when, according to his suggestion, much of it might be served in protective custody (R. v. Kasulaitis[1]). So much may be accepted. It was then submitted that, despite the judge's statements that he gave the applicant full credit in regard to the guilty plea and accepted his apology through counsel to the victims, a sentence of 17 years' imprisonment was so heavy that little weight must have been given to the applicant's plea of guilty and sense of shame and remorse and to his prospects of rehabilitation. The length of the sentence showed, it was submitted, that too much weight had been given to general deterrence at the expense of rehabilitation, and thus a manifestly excessive sentence had been reached, bearing in mind the possibility that the applicant might have to serve every day of the head term of 17 years (R. v. Kasulaitis[2] and cases there cited). The non-parole period was also said to be manifestly excessive. In the applicant's written outline the individual sentences for assault with intent to rape and for penile vaginal rapes were criticised as too high, as was the aggregate of the periods of imprisonment directed to be cumulated. In oral argument those areas were suggested as the areas where reductions could be made to avoid what was said to be the manifestly excessive sentence.
[1][1998] 4 V.R. 224 at 232
[2]at 232
As I have already stated, I do not accept that the judge made, or was entitled to make, a finding favourable to the applicant on rehabilitation. But even if, contrary to my view, the applicant's prospects of rehabilitation were reasonable or good or, in other words, even if he was unlikely to commit like offences again, I do not, in the light of the nature and circumstances of the offences and in the light of the fact that in respect of most of them the applicant fell to be sentenced as a serious sexual offender, consider any of the individual sentences or the total effective sentence resulting from the directions for cumulation to be manifestly excessive. In saying that I have borne in mind the possibility that the applicant may have to serve every day of the head sentence and the possibility of protective custody. Nor do I regard the non-parole period as manifestly excessive. Rather, I entertain no doubt that the individual sentences, the total effective sentence and the non-parole period were within the range of sentences open to his Honour in the exercise of a sound discretionary judgment in all the circumstances of this case, including in particular the enormity of the applicant's criminality.
I would add this. The following remarks by his Honour were criticised for the applicant as over-emphasising general deterrence and giving rise to the asserted manifest excessiveness of the sentence:
"... as to relevant offences under the serious offender legislation the protection of the community must be the principal purpose of sentencing. That, however, is not to say that in this particular case punishment, general and specific deterrence, denunciation [by] the community for these types of crimes and, of course, your rehabilitation are matters which are not considered. In my view, a sentence which reflects general deterrence must loom large in cases of such grave criminality."
For my part, I would entirely endorse those remarks in this case.
For the reasons I have given, this application should be dismissed.
BROOKING, J.A.:
I agree.
CHARLES, J.A.:
I also agree.
BROOKING, J.A.:
The application is dismissed.
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