R v Lewis

[2006] VSCA 272

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 33 of 2006

THE QUEEN

v.

WILLIAM HOWARD LEWIS

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JUDGES:	WARREN, C.J. and NETTLE and REDLICH, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 December 2006
DATE OF JUDGMENT:	6 December 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 272

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Criminal Law – sentencing – sexual offences against a child under 16 years – whether sentence of 10 years with a non parole period of 8 years manifestly excessive – whether judge gave sufficient weight to plea of guilty – sentencing discretion re opened – appellant re-sentenced to 9 years with a non parole period of 7 years

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms G.T. Cannon	Ms A. Cannon, Solicitor for Public Prosecutions
For the Appellant	Mr G.F. Meredith	Greg Duncan

WARREN, C.J.:

1. The appellant was sentenced in the County Court of Victoria sitting at Wodonga on 9 February 2006 on one count of rape.  The maximum penalty is 25 years.  The appellant pleaded guilty when arraigned on 3 February 2006, a little under a week before the trial date as fixed.  The appellant was sentenced to ten years’ imprisonment with a non parole period of eight years.

1. The circumstances of the offending were that the appellant attended the house of one P.J., who lived at her home with her daughters.  On 22 September 2004, the appellant attended P.J.’s home, and present on that occasion was the niece of P.J., the complainant.  It transpired that family activities occurred in the house, and at about 10.30 p.m. P.J. went to bed.  The complainant remained in the lounge room, where the appellant was present.  The complainant was aged 15 years at the time.  Her activities in the lounge room involved writing - apparently writing some poetry, and playing games on a computer.  The complainant continued these activities until about 3.15 a.m.  She then retired to bed, wearing a long jumper and underneath that her underwear, consisting of a g-string.  About an hour later, at approximately 4.15 a.m., she was awakened by the appellant being on top of her and clasping her throat with his hand.  The appellant used his other hand to forcibly remove the complainant's g-string.  There was struggling and calling out by the complainant for the appellant to stop his actions.  The appellant attempted to kiss the complainant on the lips and then inserted his penis into her vagina.  The complainant said that it hurt her and that she was crying.  She estimated that the offending of the appellant lasted about ten minutes.  Thereafter, the complainant fled to her aunt's room and set off the alarm as to what she said had occurred.  The appellant meanwhile had resorted back to a bedroom and lay under a doona and pretended to be asleep. 

1. The complainant suffered badly as a result of the actions of the appellant, including dry retching and vomiting, to the point where she vomited blood.  She also hyper-ventilated.  However, the complainant did not go to the police until 10 November 2004.  As a consequence, the opportunity for forensic investigation was lost.  Eventually, the appellant was interviewed by police on 24 December 2004.  He denied going into the bedroom of the complainant and said that he left the premises of P.J. at about midnight.  As observed, the appellant continued his denial of the complainant's allegations until shortly before the trial.  Necessarily, therefore, the complainant underwent the experience of cross-examination during the course of the committal.

1. There was evidence before the sentencing judge as to the personal circumstances and the prior criminal history of the appellant.  His history involved various offences including indecent exposure and indecent assault.  At the time of the offending the appellant was aged 34 and the offence was committed while the appellant was subject to an Intensive Correction Order that included the requirement that he participate in the sex offender program.  After hearing submissions on the plea, the sentencing judge ultimately considered factors put on behalf of the appellant.  They were eightfold.  Relevantly, the response of the sentencing judge to the factors submitted by counsel for the appellant at plea can be conveniently recited as follows:

"1.       Your plea of guilty:   I have taken that into account.

2.You have by your plea spared the witnesses the ordeal of giving evidence.  I have taken that into account.

3.You have spared the community the cost of a trial.  I have taken that into account.

4.I should conclude that the case was not so overwhelming as to guarantee a conviction.  I have taken that into account and noted that in jury trials no particular outcome is ever guaranteed.

5.There was a delay in complaint.  I have taken that into account.

6.There is social utility in your plea even if it did come late.  I have taken that into account.

7.There is some remorse on your part.  As I have said, I am unable to find that this is so on the evidence before me.

8.You have taken steps towards your rehabilitation and all hope of your eventual rehabilitation is not lost.  As I have said, I find that you have not responded positively to efforts to rehabilitate yourself."

1. The appeal comes before this Court on two grounds.  The first ground is concerned with a submission that the sentencing judge erred in failing to accord sufficient weight to the plea of guilty generally, and in limiting the plea’s application to the facilitation of the course of justice.  The second ground of appeal is one concerned with manifest excess in all the circumstances.

1. The submissions with respect to ground 1 were principally preoccupied with the matter of the treatment by the sentencing judge of the matter of the remorse of the appellant.  As I have already recited, her Honour below specifically made a finding that she was unable, on the evidence before her, to find that there was remorse on the part of the appellant.  Her Honour further said: “I do not find that you are not remorseful, I am simply unable to say.”  A number of factors may be attributed to that finding.  In the course of submissions, however, it was argued by Mr Meredith for the appellant that there was insufficient or in fact no weight attributed by her Honour to the matter of remorse.  Mr Meredith submitted that the appellant’s plea of guilty was indicative of some remorse and that, when the reasons for sentence are carefully analysed and scrutinised, there is no, or no adequate, finding in that respect. 

1. It need be said at the outset that careful consideration of the submissions on the plea and the reasons for sentence of her Honour demonstrate that remorse was a factor that was to the fore of her Honour's mind and given appropriate consideration.  It need also be borne in mind in the circumstances of this particular matter that the appellant did not plead guilty in so far as that demonstrated remorse until a week before the trial, he having had the opportunity to observe the complainant in the course of giving evidence at the committal.  It need also be observed that the complainant had necessarily undergone the stress and anxiety of being cross-examined at the committal hearing and having had to bear the burden of anticipated cross-examination at trial up until a week before the trial date.  There are also the additional factors that lie in this case:  that the appellant's offending involved an offence perpetrated against a child, bearing in mind his age at the time of 34;  further the offending involved the use of violence by way of the physical restraint of the complainant in all the circumstances;  next, the duration of the offending, and also, as emphasised by Ms Cannon in the course of submissions, penile penetration without protection.  Doubtless, when her Honour weighed all these matters up in the context of remorse, they were factors that came to the fore of her mind in making the assessment and ultimate finding that she did.  Further, her Honour took into account matters of deterrence, both general and specific, which she regarded as considerably important in this case, as well as the need to protect the members of the community, while bearing in mind the likelihood of the appellant’s re-offending.  In my view, there is no basis upon which this Court could find error in her Honour finding as she did.

1. It follows that I am not satisfied that ground 1 is made out and I would find accordingly.

1. However, that brings me to ground 2.  The primary issue to be considered in the context of ground 2 and assessing manifest excess brings to the fore an assessment or question as to what would have been the sentence if the appellant had not pleaded guilty but been convicted after a trial.  That question brings attention to the fact of assessment of the plea of guilty.  In all the circumstances of this matter, having considered carefully the reasons for sentence of her Honour, and in particular observing the gravity of the offending, involving as it did a child who had no prior sexual experience, there is none the less a compelling conclusion that insufficient weight was given by her Honour within the sentencing synthesis to the public utility of the appellant’s plea of guilty, notwithstanding that it was a late plea.  It need be borne in mind that there is considerable public benefit in accused persons being provided an incentive to proffer a plea of guilty in the interests of the administration of criminal justice in this State.  When the public utility approach is taken into account, it is apparent that her Honour did not take appropriate account of the plea of guilty in all the circumstances of this matter. 

1. In light of these matters, I am satisfied that manifest excess is made out and accordingly as too is ground 2 of the grounds of appeal.  In my view, therefore, the appellant falls to be re-sentenced.  Having taken account of the circumstances of this matter, including in particular its aggravating features and the personal circumstances of the appellant, including his prospects of rehabilitation, I am satisfied that the appellant should be re-sentenced, and in the circumstances I would impose a term of imprisonment on count 1 of nine years' imprisonment and I would fix a non-parole period of seven years, and I would order accordingly.

NETTLE, J.A.:

1. I agree.  Like the Chief Justice, I am unable to detect any error of fact or principle in the sentencing judge's sentencing remarks.  Despite the appellant's plea of guilty, I consider that her Honour was entitled to conclude as she did that the evidence did not sustain a conclusion that the appellant was remorseful. 

1. I also consider that the judge was plainly right to conclude as she did that this was a serious case of rape.  The victim was a child of 15 years of age.  She was a virgin.  She was sleeping in her bedroom in her aunt's house when she was attacked.  The appellant used violence to restrain her, as she cried, by grasping her around the throat, and he penetrated her unprotected, stayed within her for ten minutes, and finally ejaculated within her.  Plainly the offence warranted a stern sentence, and as the judge rightly said, there was a need for general deterrence, specific deterrence and protection of the community.

1. All that having been said, however, it strikes me that a head sentence of ten years for an offence such as this, to which the prisoner has pleaded guilty, allows manifestly too little discount for the plea, and thus produces a sentence which is manifestly excessive.  It follows, in my view, that the sentencing synthesis must therefore have miscarried and thus that it falls to this Court to re-sentence the

appellant.  As to that I agree, for the reasons which the learned Chief Justice has given, including the nature and gravity of the offence and the aggravating and mitigating circumstances to which she has referred, that an appropriate head sentence would be nine years with a non-parole period of seven.

REDLICH, J.A.: 

1. I, too, am not persuaded by the argument advanced by Mr Meredith on behalf of the appellant that any specific sentencing error has been disclosed.  Notwithstanding the comprehensive and thoughtful reasons of the learned sentencing judge, and the aggravating circumstance to which her Honour referred, I am driven to conclude, once regard is had to the appellant's plea of guilty, that both the head sentence and the non-parole period are manifestly excessive.  For the reasons given by the Chief Justice and my brother Nettle, with which I entirely agree, I would therefore allow the appeal and impose the sentences proposed by the Chief Justice.

WARREN, C.J.: 

1. The orders of the Court are:

   1.        The appeal is allowed.

   2.        The sentence of imprisonment below is quashed.  In lieu thereof the appellant is sentenced on count 1 to nine years' imprisonment. 

   3.        A non-parole period of seven years is fixed.

   4.        A pre-sentence period of 310 days is declared and will be recorded in the Court's records.

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