R v Parton
[2007] VSCA 268
•4 December 2007
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 325 of 2006
| THE QUEEN |
| v. |
| STEPHEN MICHAEL PARTON |
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JUDGES: | NEAVE and KELLAM JJA, CURTAIN AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 11 October 2007 | |
DATE OF JUDGMENT: | 4 December 2007 | |
MEDIUM NEUTRAL CITATION: | [2007] VSCA 268 | |
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CRIMINAL LAW – Sentencing – Appellant pleaded guilty to rape (five counts), aggravated burglary and possession of a firearm, in circumstances where he bound, terrorised and repeatedly raped his ex-partner over the course of five hours – Sentenced to total effective sentence of 16 years’ imprisonment with a non-parole period of 13 years – Whether sentencing judge failed to give due weight to guilty plea – Whether sentencing judge treated the appellant’s depressive illness in accordance with R v Tsiaras [1996] 1 VR 398 and R v Verdins (2007) 169 A Crim R 581 – Appeal allowed – Appellant re-sentenced to a total effective sentence of 16 years’ imprisonment with non-parole period of 12 years.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mrs C Quin | Ms A Cannon, Solicitor for Public Prosecutions |
| For the Appellant | Mr S Johns | Victoria Legal Aid |
NEAVE , JA:
I have had the advantage of reading the draft judgments of Kellam JA and Curtain AJA. I agree with their Honours that the learned sentencing judge erred by failing to take account of the link between the appellant’s depressive illness and his offending. The appellant must therefore be re-sentenced.
Despite the appellant’s serious depressive condition, significant weight must be given to both general and specific deterrence in re-sentencing him. These appalling offences were premeditated. The appellant had previously raped a former partner under very similar circumstances. Although he must have been aware of the risk that he would re-offend, he did not seek medical help when he became depressed again. Unless he continues to take his medication he is likely to present a significant danger to any woman who embarks on a relationship with him in the future.
I agree with Kellam JA that the sentences imposed on the individual counts were extremely moderate. The offending took place over a lengthy period in terrifying circumstances. All of the offences, and particularly the rape with the vibrator, were both humiliating and distressing. The victim impact statement shows that the victim continues to suffer from the effect of a brutal attack by a man with whom she had previously lived in an affectionate relationship.
If counsel for the appellant had been warned of the possibility that this Court might increase the individual sentences imposed by the judge below, I consider that it might well have been appropriate to do so.
In the circumstances I agree that the appellant should be re-sentenced as proposed by Curtain AJA.
KELLAM JA:
I have had the advantage of reading the draft reasons for judgment of Curtain AJA.
I respectfully agree with Curtain AJA that the sentencing judge was in error in concluding that there was before her no evidence which in any way linked the depressive illness which was suffered by the appellant to the offending and in concluding that the evidence of clinical depression which had been suffered by the appellant over many years was ‘merely a background’ to the offending.
The offences took place between approximately 9 am and 2 pm on 23 November 2005. Later that day the appellant attended at the Alfred Hospital after having slashed his wrist with a knife and having attempted to hang himself. Police sought to interview him at the Alfred Hospital on the evening of 23 November 2005, but after examination by a medical practitioner the appellant was found unfit to be interviewed. The appellant was assessed by psychiatric staff at the Alfred Hospital. He reported impaired sleep over the preceding two months, suicidal thoughts for more than a month and cessation of anti-depressant medication approximately one year previously.
Dr Danny Sullivan, a consultant psychiatrist, examined the appellant on 12 August 2006. Dr Sullivan observed that the appellant had a history of recurrent depressive disorder, moderate in severity, which had been treated with anti-depressant medication and by electro convulsive therapy. Dr Sullivan expressed the following opinions as to the mental functioning of the appellant at the time of the commission of the offence:
Mr Parton’s behaviour related to these offences bears some similarities to the previous conviction in 1998, in that it followed being dropped from a relationship, involved binding the victim and raping them, and was accompanied by attempts of suicide, dramatic in nature and with the expressed wish that the victim watch him kill himself. His rapes have not been accompanied by sexual fantasy, heightened sexual drive, an interest in bondage or other markers of a general propensity for sexual offending. However there is circumstantial evidence of planning to rape the victim, evident in obtaining duct tape and cable ties. His rape then would appear to be vindictive and accompanied by marked psychological distress and suicidal ideas. His failure to kill himself is likely linked to a degree of ambivalence as well as the effects of depression on reducing clarity of thought.
Dr Sullivan said further:
However the specific details of Mr Parton’s offence are strongly correlated with a prior conviction with similar features. It would seem likely that his risk is markedly elevated at the end of relationships, and would apply to the ex partner rather than others. There is a strong association with depressed and angry mood and his inability in such situations to manage his mood.
Dr Sullivan stated further that the appellant should continue anti-depressant therapy indefinitely and he recommended that he stay under ‘some form of psychiatric review due to a demonstrated propensity for significant depression and its associate risk of self-harm and sexual violence’. It is apparent therefore, that there was evidence before the sentencing judge of mental impairment which called into consideration the principles of R v Tsiaras.[1] As is clear from R v Verdins[2] (which case was decided after the handing down of the sentence in this matter) that impaired mental functioning, whether temporary or permanent, is relevant to sentencing in a variety of ways.[3]
[1][1996] 1 VR 398.
[2](2007) 169 A Crim R 581.
[3]Ibid 589-90.
However as Nettle JA said in R v Howell:[4]
The point of Verdins is that each case depends upon its own facts and in particular on the nature of the mental condition in question … The theory and reality upon which the intuitive synthesis approach to sentencing is built is that each case is unique …
[4][2007] VSCA 119, [24].
In June 1998 the appellant had been convicted of rape, and reckless conduct endangering life. The evidence is that those offences took place in circumstances of the breakdown of a relationship. Likewise the appellant’s victim on that occasion was bound with tape and plastic cable ties and raped. At the time of sentencing in 1998 a psychologist, Mr Bernard Healey, provided a report for the sentencing Court stating that the offending took place in the context of ‘extreme emotional turbulence, disturbance, loss of perspective, heightened depression and suicidal ideation’.
The evidence is that the appellant completed a sex offender program whilst undergoing imprisonment in relation to the offences referred to above. He continued to consult with a psychologist whilst on parole, and was prescribed anti-depressant medication. Dr Sullivan obtained a history that he had ceased to take his medication one year prior to the commission of the offences with which we are concerned. This is the second time that very serious offences have been committed by the appellant in circumstances whereby he has refused, or has been unable, to accept the ending of a relationship. Furthermore, the appellant committed these offences in the clear knowledge that what he was doing was wrong. His statement to his victim that he would get ’30 years for this’ and his statement that he was not ‘going back to jail’ are the clearest evidence of his understanding of his moral culpability as at the time of the commission of the offences, notwithstanding his depressed mental state.
Furthermore, there is no suggestion in the evidence that by reason of his depressive condition the appellant failed to understand the risk to himself, and others, of ceasing his medication, as he did a year before these offences occurred, and of not seeking professional assistance when he felt symptoms of depression. In the particular circumstances of this case, it appears to me that the principles of general deterrence, specific deterrence, denunciation and protection of other potential victims remain matters of importance, notwithstanding the fact that the appellant was suffering from a depressive illness at the time of the commission of the offences. As the Court said in R v Verdins:[5]
There was no inconsistency between, on the one hand, saying that the appellant’s depression moderated the requirement for general deterrence and, on the other, emphasising the need for others to be deterred from reacting violently to the breakdown of a relationship …
The circumstances of Verdins in that regard are similar to those in the case before us.
[5](2007) 169 A Crim R 581, 591.
Whilst it is true that the evidence that the appellant was suffering from a depressive illness at the time of his offending, is in accordance with the principles of Tsiaras as explained by Verdins, relevant to the task of sentencing the appellant, that does not mean that the issues of general deterrence, denunciation and specific deterrence in the particular circumstances of this case become irrelevant. They remain as relevant factors but subject to appropriate moderation in all the circumstances. However, as her Honour did not turn her attention to the proper application of the principles enunciated by Tsiaras in this case, it falls to the Court to re-sentence the appellant. However the circumstances under which the offending took place bear some consideration before I turn to the question of re-sentencing.
As stated above, the relationship between the appellant and his victim had broken down in October 2005. On 23 November 2005, whilst the victim was taking her children to school, the appellant entered her home by lifting tiles from the roof and then entering through a manhole. At the time he was armed with a sawn off rifle which was loaded with ammunition. Upon her return home shortly before 9 am the victim was accosted by the appellant. The firearm was pointed at her face and she was told not to scream. Not surprisingly the victim was extremely terrified and fearful that the appellant might shoot her. Silver duct tape, which the appellant had brought with him, was then wrapped around the head of the victim and over her mouth. The victim was told to get undressed. At first she said that she would not get undressed, with which the appellant pointed the firearm at her face and said ‘Do it’. She acceded to his request. Over the next three hours she was repeatedly penetrated, orally, vaginally and anally with the appellant’s penis and on one occasion with a vibrator. Throughout this time the appellant had the loaded firearm either in his hand or in close proximity. The victim remained in fear of her life throughout this ordeal which continued for a period in excess of three hours. Soon after midday and after having restrained the victim with rope and plastic cable ties, the appellant left the victim’s home. She was unable to seek help by reason of being so restrained. The appellant returned approximately half an hour later, this time without the firearm. He untied the victim but once again raped her by penile penetration of her vagina. Before departing for the second time the appellant once again restrained the wrists and ankles of the victim by the application of plastic cable ties.
The above brief description of the offences provides the barest outline of the horror of the experience to which the victim was exposed. Her victim impact statement sets out with clarity her entirely understandable feelings of sadness, anxiety, insomnia, nightmares, hyper-vigilance and fear.
In her sentencing reasons the sentencing judge set out in some detail the background and the matters of mitigation argued before her. I shall not repeat them here in any detail. She referred to the plea of guilty and in re-sentencing I accept that with the exception of count 7 the appellant indicated at an early stage his preparedness to plead guilty to the other counts on the presentment. Nevertheless, a committal did take place and the victim was cross-examined in relation to Count 7 and about other matters. Although the plea of guilty to all counts cannot be described, as the sentencing judge did, as a ‘late change of heart’, it cannot be said that the appellant pleaded guilty to all matters on the presentment at the earliest opportunity.
The crimes to which the appellant pleaded guilty were grave crimes involving a number of significant matters of aggravation. The appellant had a prior history of offending in similar circumstances. Clearly the intention to restrain the victim was premeditated, the appellant taking a bag containing duct tape and plastic ties with him when he entered the home of the victim through the roof. The attack of the victim was relentless indeed, continuing as it did over a number of hours. Furthermore, throughout the period up until the time when the appellant first left her premises the fact that he was in possession of a loaded firearm which he kept close to him at all times instigated great fear in the mind of the victim. In my view the crimes before the Court are a most serious example of violent, invasive and humiliating sexual offending.
I agree that the appellant should be re-sentenced as proposed by Curtain AJA. In doing so I note that a number of the individual sentences which have been reimposed might be said to be most moderate sentences. In particular, the sentence of 3 years’ imprisonment on Count 4 and the sentences of five years’ imprisonment imposed on each of Counts 5, 6 and 7 by the sentencing judge cannot be said to be other than moderate sentences in all the circumstances.
CURTAIN AJA:
Stephen Michael Parton pleaded guilty to aggravated burglary, being a prohibited person in possession of a firearm and five counts of rape, three of which were representative counts, and on 20 October 2006 was sentenced as follows:
Count 1, aggravated burglary, eight years’ imprisonment.
Count 2, possession of a firearm, two years’ imprisonment.
Count 3, rape, ten years’ imprisonment.
Count 4, rape, three years’ imprisonment.
Count 5, rape, five years’ imprisonment.
Count 6, rape, five years’ imprisonment.
Count 7, rape, five years’ imprisonment.
Orders for partial cumulation resulted in a total effective sentence of 16 years with a non-parole period of 13 years. Consequent orders were made pursuant to the provisions of the Sex Offenders Registration Act2004.
The appellant appeals the sentences so imposed on the grounds that the learned sentencing judge erred as follows:
(1) In the assessment of weight to be given to the plea of guilty.
(2) In finding that the appellant did not suffer from a serious psychiatric illness.
(3)In finding that there was no causal link between the appellant’s depressive illness and the offending.
(4)Failing to give sufficient weight to the appellant’s depressive illness in assessing his moral culpability.
(5)In her Honour’s approach to moderating relevant sentencing factors in order to reflect the sentencing implications of the appellant’s depressive illness.
(6)In failing to give weight to the fact that the appellant will serve his sentence in the onerous position of a protection prisoner.
(7) That the sentence imposed upon the appellant is manifestly excessive.
Grounds 2 to 5 were argued compendiously and ground 6 was not further advanced, it being conceded that the matter was not raised before her Honour and there was no evidence in respect of it.
Circumstances of the offending
The appellant and the victim had been in a relationship for 20 months. By October 2005, the victim wanted a trial separation and the appellant appeared to accept this. They remained in contact and on one occasion engaged in consensual sexual intercourse.
On 23 November at about 8.50 am the victim returned home from dropping her children at school. She was accosted by the appellant, who was armed with a loaded sawn-off shotgun. He had gained entry to the house through the manhole in the roof. The appellant ordered the victim not to scream and pulled her into the bedroom, having applied tape to her head and mouth. At gunpoint he ordered her to undress and lay on the bed. He then undressed and then proceeded to penetrate the appellant orally, vaginally and anally with his penis, tongue and with a vibrator. Needless to say, the victim was greatly distressed and frightened throughout the ordeal.
The appellant expressed his desire to kill himself, unloaded the gun and rehearsed shooting himself in the head. He reloaded the gun and then discussed hanging himself from the victim’s pergola, but rejected the idea because he did not want the victim’s children to find him. The appellant talked about leaving and shooting himself in the victim’s car if she called the police. At one point while raping the victim, the appellant declared that he would get “30 fucking years for this. I’m not going back to gaol”.
The appellant then told the victim to get dressed, which she did. He then tied her hands behind her back and tied rope to her ankles. He taped her mouth again, but removed it when she had difficulty breathing. The appellant then left the house and returned in 15 minutes. He left again and once again returned, saying that he had thrown the gun into the river. He then untied the ropes from her ankles and cut the ties from her wrist and again penetrated the victim’s vagina with his penis.
The appellant then tried to hang himself from the bedroom door; he aborted the attempt when the victim, seeing him turn red, called out his name. Undeterred by the victim’s life-saving intervention, he retied her wrists and ankles and then left the house leaving her in that condition. The victim was able to get to the front door and summon the aid of neighbours, and eventually the police arrived, they having been called by the appellant, who falsely reported an elderly person in a nearby house had fallen.
This brief narrative makes no attempt to adequately describe the horror of the victim’s ordeal. To be bound, gagged and held at gunpoint in one’s home over a period of five hours while being repeatedly raped by a person who at the same time was discussing various means of killing himself and attempting to do so in the victim’s presence places this offending conduct in the category of the most serious example of offences of this kind.
The appellant has a prior conviction for rape. The victim in that instance was his partner and the offence occurred in the context, as it did here, of a separation. The modus operandi was the same in that the appellant used ties and tape to bind and gag the victim. The express purpose on that occasion was retribution for her perceived infidelity, and there is some evidence in this case that the appellant, by his conduct, sought to punish the victim.
Upon his incarceration in respect of that prior offence, the appellant attempted suicide and was placed in the psychiatric unit at the Melbourne Assessment Prison. It appears he received no other treatment, although he did complete the Sex Offenders Program. While on parole, he was regularly seen by a psychologist and engaged in a course of psychotherapy. He was prescribed antidepressants.
At the time of these present offences, the appellant had stopped taking his medication. He had uncharacteristically absented himself from work and had argued with the victim two days previously. As a result, he had stolen her gun and cut it down and written a suicide note which he did not post.
The statement of the victim describes in detail not only the brutalities which she endured but also the appellant’s desire to kill himself, expressed repeatedly throughout the ordeal. The appellant ruminated on the different ways he could employ to kill himself, which included a rehearsal with the unloaded gun pointed to his head and the attempted hanging from the doorway. The appellant requested the victim to text a farewell message to his family on his mobile phone and asked her to send it. On one occasion when he left the house, the victim believed he was leaving to kill himself and on another occasion he returned to the house in an agitated state because he had been interrupted by strangers who had seen him hanging a noose from a tree in a nearby reserve. The victim, despite the indignities inflicted upon her throughout the ordeal, sought to reassure the appellant that he was sick and needed help.
Later that day, the appellant rang his brother and said he was going to kill himself. His brother took him to the Alfred Hospital, where he was admitted and treated for a deep laceration to his left forearm and a neck injury relating to the attempted hanging was noted. He was provisionally diagnosed as suffering a major depressive disorder and doctors assessed him as unfit to be interviewed by the police who attended the hospital later that night.
Grounds 2 to 6 – The application of the principles enunciated in R v Verdins
A report by Dr Danny Sullivan, consultant psychiatrist and assistant clinical director at the Victorian Institute of Forensic Mental Health (Forensicare), was tendered in evidence on behalf of the appellant. Its contents were not disputed by the Crown. The report details a lengthy history of depression, including psychiatric admissions on three previous occasions prior to the offending, electroconvulsive therapy, the multiple interventions of the Crisis Assessment and Treatment (CAT) team and a history of suicide attempts over the years. He has previously been assessed as being at risk of self-harm and suffering depression and consequent gambling problems. He had been prescribed numerous medications and diagnosed as suffering major depression.
Dr Sullivan reported that the appellant has a history of “recurrent depressive disorder, moderate in severity, which has been treated with antidepressants and anti-electroconvulsive therapy. This disorder is described in the Diagnostic and Statistical Manual of Mental Disorders 4th Edition, Text Revision (DSM – 1V – 2R)”. Dr Sullivan opined that the appellant’s episodes of depression appear related temporally to the end of relationships and that his episodes of self-harm, depression and sexual assault have occurred in the context of perceived abandonment; that the appellant’s attitudes and behaviours is suggestive of dependent personality traits and that the appellant reported as struggling at the end of psychotherapeutic support from a clinical psychologist. Dr Sullivan recommended that the appellant remain under psychiatric review and that he continue antidepressant therapy indefinitely.
Her Honour the learned sentencing judge, in her sentencing remarks, noted these matters as reported by Dr Sullivan, but came to the view that there was no evidence upon which she could treat the appellant’s moral culpability for these offences as in any way reduced. Her Honour stated that she did not ignore the appellant’s depressive symptoms, but that these provided merely a “background” to his offending and, in her view, there was no evidence which in any way linked any depressive illness in a causative sense to the offending. Her Honour concluded that the appellant’s offending may coincide with deepening depression, but that the motivation to offend was attributable to the appellant’s desire for revenge and sexual domination.
Her Honour was there no doubt referring to the principles expounded in R v. Tsiaras, which principles were recently reformulated in R v Verdins, which, at the time of sentencing, had not then been decided. In R v Verdins, the Court there held that:
(a)Impaired mental functioning, whether temporary or permanent, is relevant to sentencing in that it may reduce the moral culpability of the offending conduct as distinct from the offender’s legal responsibility and, where that is so, the condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
(b)General deterrence should be moderated or eliminated as a sentencing consideration depending upon the nature and gravity of the symptoms exhibited by the offender and the effect of the condition on the mental capacity of the offender, whether at the time of offending or at the date of sentence or both.
(c) Likewise, specific deterrence should be similarly moderated or eliminated.
(d)The existence of the condition at the date of sentencing or its foreseeable recurrence may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health and where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health that will be a factor tending to mitigate punishment.
In my view, the learned sentencing judge was in error in concluding that there was no evidence which reduced the moral culpability of the appellant for these offences and that his depression was to be regarded as background to the offences.
I am satisfied that at the time of the offending the appellant was suffering from impaired mental functioning. He was admitted to hospital on the day of the offending after having made at least two attempts at suicide which, were it not for the intervention of others, may well have been successful. He had expressed his desire to kill himself to the victim and to his brother. Such was his brother’s concern that he arranged to meet him and took him to hospital. Once admitted, he was diagnosed as suffering a major depressive disorder and was regarded by doctors as being unfit to be interviewed by the police.
Dr Sullivan remarked that the appellant’s offences were not accompanied by sexual fantasy, heightened sexual drive, an interest in bondage or other markers of general propensity to sexual offending. Dr Sullivan noted that although the rapes appeared vindictive, they were accompanied by marked psychological distress and suicidal ideas. The appellant’s failure to kill himself was linked to ambivalence, which her Honour noted, but it was also due to the effects of depression in reducing clarity of thought. The appellant had demonstrated propensity for significant depression and an associated risk of self-harm and sexual violence. In Dr Sullivan’s view, the appellant was at the greatest risk of re-offending at the time of relationship breakdown, which suggests either a degree of compulsion or limited choice in the appellant’s response.
I am satisfied that there was sufficient evidence before her Honour to support the causal link between the appellant’s depressed state and his offending conduct and thus her Honour was in error in coming to the view that there was, “no evidence which enabled her to treat the appellant’s moral culpability as in any way reduced and that the appellant’s depressive symptoms over a long period merely provided background to the offending”.
On the contrary, it would appear that the appellant’s depression had impaired his ability to exercise proper judgment, to make calm and rational choices or to think clearly and had contributed causally to the commission of the offences and, consistently with the principles expounded in R v. Verdins, these factors may be said to reduce the appellant’s moral culpability for the offending and that being so, his condition affects the punishment that is just in all the circumstances.
In these circumstances general deterrence should be moderated, having regard to the nature and severity of the symptoms exhibited by the appellant and the effect of the depression upon his mental condition at the time of the offence and at the time of sentence. In this regard, I note that when Dr Sullivan interviewed the appellant on 12 August 2006, some six weeks before sentence, the appellant described significant depressive thoughts, he acknowledged suicidal intent and, it appears, completely lacked insight into why he had been charged on the second occasion with raping his ex-partner.
Dr Sullivan noted at the time of review he remained mildly depressed and warranted ongoing treatment with antidepressants and consideration of cognitive behavioural and supportive psychotherapy. Dr Sullivan was also of the view that he required an extended version of the sex offenders program and also required ongoing counselling and psychiatric support.
Dr Sullivan was of the view that the appellant remained at risk of self-harm and required close monitoring and continued antidepressant therapy indefinitely. Such therapeutic assistance and intervention as detailed by Dr Sullivan, in my view bespeaks the severity of the appellant’s condition and the need for general deterrence in the appellant’s case to be moderated.
Acting upon the principles expounded in R v. Verdins, I am nonetheless of the view that specific deterrence requires less moderation than it otherwise would by reason of the fact that the previous disposition imposed upon the appellant failed to deter him from committing the same offences in a similar fashion.
The appellant reported to Dr Sullivan that he had gained some insight into his behaviour as a result of the psychotherapy he had undertaken whilst on parole. At the time of these offences he had stopped taking his antidepressants because, he said, he tended to overdose frequently when he “lost the plot”. Four days before these offences the appellant stopped work because he felt incapable of working. He was not eating, having lost weight and appetite. Upon admission to the Alfred Hospital, the appellant gave a history of two months impaired sleep, suicidal thoughts over a month and cessation of antidepressants 12 months previously. The appellant maintained to Dr Sullivan that he did not arrive at the house with any thoughts of rape, but that he wished to punish the victim, as I read it, by having her watch him kill himself. Whilst this may have been a reason for his conduct, it does not explain the presence of the plastic bag with ties and duct tape.
In these circumstances, given the appellant’s insight, such as it was, his deteriorating mental state and the element of planning as evidenced by the presence of the duct tape and ties, I am drawn to the conclusion that the appellant was well aware that he was likely, in the circumstances, to act as he had done in the past. His remark that he would get 30 years’ gaol for this confirms that even in his fragile condition he appreciated the gravity of what he was doing and its likely consequences to him. Further, in the opinion of Dr Sullivan, the appellant’s risk of re-offending is markedly elevated at the end of relationships.
In these circumstances, although specific deterrence needs to be moderated, it must nonetheless be accorded appropriate weight in view of the likelihood of the appellant’s re-offending.
Ground 1: The assessment of weight to be given to the pleas of guilty
In discussions with counsel for the appellant (who was not counsel who appeared before this Court), and in her sentencing remarks her Honour the learned sentencing judge appeared to regard the appellant’s refusal to participate in a record of interview as significant and expressed the view that he had been aggressive or abusive towards the police. Her Honour, in her sentencing remarks, stated that the discount for the pleas of guilty was to be reduced because it came after the committal and as such represented a “late change of heart”.
The appellant had been assessed as medically unfit to be interviewed when the police wished to speak with him on the night he was admitted to hospital, but the appellant did nonetheless speak with them and told them where he had disposed of the firearm. Two days later, the police again sought to interview the appellant but he declined, which her Honour acknowledged he was perfectly entitled to do. He did, however, cooperate with the police on that occasion also by providing his fingerprints and a mouth swab for DNA analysis.
On 10 February 2006, the Crown were notified that there was no issue in respect of counts 1 to 6 and thus the very limited committal was focused only on count 7, a specific count of rape. Although upon reflection it may have been better if the victim were not subjected to cross-examination, it was nonetheless of very limited scope and duration. It appears that after the committal negotiations continued and on 14 July 2006 the appellant was arraigned and pleaded guilty to the counts that he was subsequently sentenced upon.
In these circumstances where the appellant did cooperate with the police, where he did no more than exercise his right not to participate in a record of interview and where the Crown were advised in February that there was no contest on all but one of the counts and consequently the committal was of very limited scope; to characterise the appellant’s pleas of guilty as a late change of heart in my view did misrepresent the circumstances in which the appellant pleaded and does not give appropriate weight to the value of the plea, both as an indication of remorse and to facilitate the administration of justice. In these circumstances I would also uphold this ground. It now falls for the court to re-sentence the appellant.
Re-sentencing
In re-sentencing the appellant, I do not propose to rehearse all of the matters which her Honour, the learned sentencing judge, took into account and gave appropriate weight. Suffice it to say that in re-sentencing the appellant I take into account all matters which go in the appellant’s favour, including the appellant’s pleas of guilty and the need to pass a sentence which reflects the principles of R v Verdins as applicable and as has been previously addressed in this judgment.
As the appellant is to be sentenced as a serious offender in respect of counts 3 to 7 on the presentment and in respect of those sentences, the protection of the community from the appellant is to be regarded as the principal purpose for which the sentence is imposed. As I consider that the sentences to be imposed will achieve the aim of protecting the community from the appellant, I do not propose to impose a sentence which is longer than that which is proportionate to the gravity of the offences considered in light of their objective circumstances.
Accordingly, without in any way diminishing the nature and gravity of the offences here committed, I would propose that the appellant be sentenced as follows:
Count 1, aggravated burglary, six years’ imprisonment.
Count 2, possessing a firearm, 12 months’ imprisonment.
Count 3, rape (representative count), eight years’ imprisonment.
Count 4, rape, three years’ imprisonment.
Count 5, rape (representative count), five years’ imprisonment.
Count 6, rape, five years’ imprisonment.
Count 7, rape, five years’ imprisonment.
Section 6E of the Sentencing Act requires that every term of imprisonment imposed upon a serious sexual offender in relation to a relevant offence should be served cumulatively upon any other sentence of imprisonment imposed, unless the Court otherwise directs. Taking into account all the circumstances of the offending conduct of the appellant, together with those factors of mitigation referred to above and applying the principle of totality I would otherwise direct that there be partial cumulation as follows. I would order that one year of the sentence of imprisonment imposed on count 1 together with one year of the term of imprisonment imposed on count 4 together with two years of the term of imprisonment imposed on count 5 together with two years of the term of imprisonment imposed on count 6 and two years of the term of imprisonment imposed on count 7, be served cumulatively upon each other and upon the sentences imposed on count 3. That makes a total effective sentence of 16 years’ imprisonment.
As it appears that the protection of the community is best achieved if the appellant’s rehabilitation is structured over a significant period of time, I propose to order that the appellant serve a non-parole period of 12 years.
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