R v Martin

[2007] VSCA 207

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 361 of 2006

THE QUEEN

v

ADAM MARTIN

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JUDGES:	CHERNOV and VINCENT JJA and WHELAN AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	25 September 2007
DATE OF JUDGMENT:	25 September 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 207

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Criminal law – Sentence – Indecent assault – Common assault – Factual error made by sentencing judge – Whether error assumed significance in the determination of the sentence imposed – Appellant with relevant criminal history – Manifest excess – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M A Gamble, SC	Ms A Cannon, Solicitor for Public Prosecutions
For the Appellant	Mr D A Dann	Doogue & O’Brien

CHERNOV JA:

1. I will ask Vincent JA to deliver the first judgment.

VINCENT JA:

1. The appellant pleaded guilty in the County Court at Melbourne, on 27 October 2006, to one count of indecent assault (count 1) and one count of common assault (count 2). 

1. He admitted 34 previous convictions arising from 12 court appearances between September 1996 and November 2005.  These included a number of dishonesty and drug related offences.  However, I note in this context that the appellant also has a prior conviction for indecent assault and another for wilful exposure in a public place. 

1. After hearing a plea in mitigation of penalty, the sentencing judge, on 9 November 2006, imposed the following:

   On count 1     -          three years' imprisonment

   On count 2     -          six months' imprisonment. 

   Her Honour directed that two months of the sentence imposed on count 2 be served cumulatively upon the sentence imposed on count 1.  This created a total effective sentence of three years and two months' imprisonment, in respect of which a non-parole period of 22 months was fixed. 

1. Having been granted leave to do so, on 4 May 2007, the appellant seeks to overturn the sentences imposed upon him on two grounds, namely that:

1.The learned sentencing judge erred in having regard to the evidence of the injuries at the vaginal introitus in circumstances where:

(a)such injuries were said to have been caused by an object that had penetrated the vagina; 

(b)       such injuries were said to be impossible to age;

(c)the Crown had not sought to rely on evidence of those injuries during the course of the plea.

2.That the sentence imposed was manifestly excessive.

The Background

1. On 4 June 2006, at approximately 9.10pm, the victim, to whom I will refer as C, attended at a service station in Glen Waverley in order to put air in the tyres of her motor vehicle.  At that time she was wearing her pyjama bottoms, a T-shirt and a jumper.  She was alone and was on her way to the home of her ex-boyfriend. 

1. C parked her car next to the air pump, which was located next to the car wash at the service station.  She got out, set the pressure of the air pump, and walked to the rear of the vehicle.  She squatted down in front a tyre and then noticed the appellant staring at her.  She proceeded to check and pump up the car's tyres. 

1. As she was doing so, she became aware of the appellant's presence behind her, but thought nothing of it until she heard his boots close to her.  She turned around and saw that he was in the process of bending over towards her.  He then forced his hand down the back of her pyjama bottoms, in between her legs.  C stated that, "He grabbed the area of my vagina and I felt his fingers on my vagina.  He had his whole hand between my legs on top of my vagina."  She further stated that the incident was over quickly, because the moment he did this she jumped to her feet and turned (count 1). 

1. C stated that she was then pressed against the car and the appellant was trying to grab at her pyjama pants.  However, she managed to raise her foot and push him away (count 2). 

1. At this stage, C realised that the appellant was intoxicated, as she could smell alcohol on his breath.  His movements were sluggish and he staggered about.  At one point, C yelled at him, telling him to get away from her.  She then got into her car, locked the doors and drove off.  However, she returned and identified the appellant to the attendants on duty.  They noted that she appeared to be in a state of distress and shock and that she was crying, with her voice breaking, when she was talking.

1. The attendants called the police, who shortly afterwards intercepted the appellant. 

1. On 12 June 2006, he was arrested and charged in relation to these offences.  During that day, in the course of an interview, he told the police that he had attended the service station and later woke at the Melbourne Custody Centre;  he had been drinking alcohol;  and he could not recall seeing a red car or the victim at all.

The Grounds

1. In her sentencing remarks addressed to the appellant, the judge said: 

Turning next to your victim, I note that on 5 June 2006 she was examined by Dr Towns who found evidence of abrasions at the vagina introitus, and reported that ‘the area was tender to touch’.

1. The Crown has conceded, in their written submissions in this Court, that these physical injuries could not be attributed to the appellant.  The question then arises:  is there a reasonable possibility that her Honour's inclusion of this irrelevant consideration may have assumed significance in her determination of the sentence she handed down. 

1. The answer, in my view, must be – no – when regard is had to the many other factors that were clearly taken into account and the relatively lenient dispositions at which the sentencing judge arrived.  It is apparent that her Honour directed careful attention to all of the relevant sentencing considerations and, save for this factual mistake, it has not been suggested that she fell into error either of commission or omission with respect to any of them.  Her Honour addressed carefully the circumstances of the offences and the matters personal to the appellant that were drawn to her attention.  There is no need to recite the detail of those matters and sufficient to state that her Honour took into account the appellant's state of sobriety at the time that the offences were committed, the nature of the offending itself, the nature and circumstances of the appellant's prior offending, his history of drug and alcohol abuse, his plea of guilty and expressions of remorse, the appellant's endeavours towards his rehabilitation and his prospects in that respect, which her

Honour understandably assessed were not high.  Her Honour correctly emphasised the importance of both general and specific deterrence as sentencing considerations in this case and pointed out that –

… in respect [of] the indecent exposure offence, it was a degrading and terrifying offence committed against a young woman who is deeply affected by the assault. 

In that situation, it does not appear to me that there is any substance in ground 1.

1. For the above reasons also, the complaint that the individual sentences, the total effective sentence and the non-parole period were manifestly excessive must also be rejected.

1. I would dismiss this appeal.

CHERNOV JA:

1. I agree.

WHELAN AJA:

1. I agree and have nothing to add.

CHERNOV JA:

1. The order of the Court is that the appeal is dismissed.

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