R v Prowse

[2005] VSCA 287

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 13 of 2005

THE QUEEN

v.

NATHAN JOSEPH PROWSE

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JUDGES:	BUCHANAN, EAMES and NETTLE, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 November 2005
DATE OF JUDGMENT:	23 November 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 287

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Criminal law – Sentence – Serious sexual offender – Disproportionate sentence – Failure of sentencing judge to find that offender would remain a danger to the community at the conclusion of a proportionate sentence – Offender resentenced.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P.R.C. Southey	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Appellant	Ms H. Spowart	Victoria Legal Aid

BUCHANAN, J.A.: 

1. The appellant was arraigned in the County Court and pleaded guilty to a presentment containing one count of aggravated burglary, two counts of rape and one count of indecent assault.  After a plea the appellant was sentenced to be imprisoned for a term of six years on the count of aggravated burglary, to a term of four years on one count of rape, to a term of six years on the other count of rape and to a term of two years on the count of indecent assault.  With a measure of cumulation, a total effective sentence of 10 years' imprisonment was produced.  The sentencing judge directed that the appellant serve a term of eight years' imprisonment before becoming eligible for parole.

1. The offences took place in the early hours of Tuesday, 2 December 2003.  On the previous weekend the appellant attended an event described as a rave party beside the Goulburn River.  The appellant consumed a large quantity of drugs, including cocaine, LSD and cannabis.  The sentencing judge found that the appellant was significantly affected by the drugs.  He was driven home on Sunday evening to a unit in Greensborough which the appellant shared with another person.  That other person said that he saw the appellant at midnight on Monday and spoke to him.  He said that the appellant appeared to be acting normally. 

1. In a separate unit on the land occupied by the appellant's unit was one occupied by a 43-year-old woman.  At some time after 2 a.m. on Tuesday the appellant climbed a ladder to the lounge room window of the nearby unit.  He cut the flyscreen on the window with a Stanley knife.  The appellant then undressed and, he said later, started to masturbate.  He placed his hand on the stomach of the victim, who woke and asked who he was.  In response, the appellant placed the Stanley knife against her neck and jumped on to the bed.  The appellant forced his victim to undress and then pushed his fingers in and out of her vagina.  Dropping the knife to the floor, the appellant lowered himself on to the woman and began to kiss her breasts.  The appellant then penetrated her vagina with his penis, withdrawing several times to masturbate and then penetrating again.  He did not use a condom, although he ejaculated.  The appellant took his clothes and left by the front door.

1. The victim was extremely distressed.  She telephoned her boyfriend.  When the police arrived, she was found to be staring blankly, in a state of shock.  According to her victim impact statement, the victim was unable to work for three months and had to find new accommodation and new employment.  She lives in fear of another attack and is estranged from members of her family and friends.

1. The appellant has appealed against the sentence on the following grounds:

"1.       The sentence is manifestly excessive.

Particulars:

The learned sentencing judge failed to give sufficient weight to:

(a)       The appellant's plea of guilty;

(b)      The appellant's admissions to police;

(c)       The appellant's confessions to friends;

(d)      The appellant's confession to his therapist;

(e)       The appellant's remorse for the offending;

(f)       The appellant's youth;

(g)      The appellant's efforts towards rehabilitation;

(h)The fact that the appellant's offending arose from a diagnosed psycho-sexual disorder;

(i)       The appellant's disadvantaged background;

(j)        The appellant's strong history of employment.

2.The learned sentencing judge erred in ordering insufficient disparity between the head sentence and the non-parole period.

3.The learned sentencing judge erred in failing to take into account that the appellant would serve his sentence as a protection prisoner.

4.The learned sentencing judge erred in:

(a)failing to state whether he had imposed a disproportionate sentence pursuant to s.6D of the Sentencing Act 1991;

(b)failing to consider whether the appellant would be a danger to the community at the end of a proportionate sentence.

5.The learned sentencing judge erred in finding that the appellant's account that he was affected by drugs at the time of the offending was untrue.

6.The learned sentencing judge erred in making an order pursuant to s.11 of the Sex Offenders Registration Act 2004 in the absence of any application by the prosecution for such an order.

7.The learned sentencing judge erred in failing to take into account, when sentencing the appellant, the punitive element involved in the making of an order under the Sex Offenders Registration Act."

1. The appellant is now 24 years old.  He had a difficult, deprived upbringing.  His parents separated when he was aged four years.  The appellant was cared for by his father.  He did not see his mother again until 2002, and then briefly.  The appellant's father remarried, making the appellant's position difficult indeed.  There were constant arguments about the presence of the appellant.  The appellant was shuffled between nine primary schools and often ran away from home.  When he was 13 years old his father placed him in a hostel, and from the age of 14 years he had no contact with his father. 

1. The appellant left school without completing Year 11 and worked in an internet café.  After 16 months he came to Melbourne, where he had a series of jobs, eventually achieving some success as a customer adviser in the field of computer technology. 

1. The appellant has a number of convictions for sexual offences and minor offences of dishonesty.  At the age of 16 years he was convicted of an offence of indecent treatment of a child under the age of 16 years and ordered to perform community service.  After the commission of the present offences the appellant was convicted on seven charges of wilful and obscene exposure on suburban trains. 

1. Two psychologists' reports were tendered in the course of the plea.  Ms Warren and Ms Ruffles said:

"While Mr Prowse does not present with any symptoms of a major mental illness, despite reporting a family history of schizophrenia and bipolar disorder, there are suggestions that he possesses some disturbances of his personality functioning which impact upon his ability to develop and maintain meaningful interpersonal relationships.  Mr Prowse is at high risk of re-offending.  Of particular concern is his lack of insight into his offending behaviour, his unwillingness to openly discuss his sexual fantasies and his pattern of offending, his inability to distinguish between appropriate sexual behaviour and deviance, and tendency to externalise responsibility and blame for his offending."

It should be noted that this report was not one prepared for the purpose of dealing with the offences the subject matter of this appeal, but with the exposure offences.  Mr Joblin said:

"Mr Prowse in my opinion has a number of very concerning psychological problems.  There is no doubt that Mr Prowse has a psychosexual disorder and it seems apparent that that disorder is based in his history of instability.  These offences in my opinion in many ways have an element of expression of aggression and of anger at the world and in particular his perception of his lot in life.  Overall, I have some serious concerns about this young man.  He seems to have little support in the community, and certainly has no family support.  The concern one must have is the psychosexual disorder and the dysfunction which these offences represent.  Basically, the prognosis in my opinion is not particularly good, unless Mr Prowse is able to rid himself of the debilitating and inhibiting burden of his history, which impinges upon him to date."

1. The appellant was a serious sexual offender within the meaning of s.6B of the Sentencing Act 1991. Section 6D of the Act provides that in determining the length of the sentence of a serious sexual offender the court must have regard to the protection from the offender as the principal purpose for which the sentence is imposed and, in order to achieve that purpose, may impose a disproportionate sentence.

1. Counsel for the appellant has submitted that it was not clear from his Honour's sentencing remarks whether he had determined to impose a disproportionate sentence.  The sentencing judge said:

"A consequence of those convictions and sentences is that, with respect to your conviction on the present four counts, you are to be sentenced as a serious sexual offender. Part 2A of the Sentencing Act operates so that the protection of the community is the principal purpose for which you are to be sentenced. I am also authorised for the same purpose to impose a longer sentence than that which otherwise would be appropriate. That is an important consideration in relation to the sentences that I shall impose. You are to receive some benefit in terms of sentence as a result of those admissions, although that benefit will be reduced because the primary purpose of sentencing in your case must be the future protection of the community. The material before me suggests that you now present a continuing danger to the community."

1. I agree that it is not clear whether the sentencing judge did intend to impose a disproportionate sentence pursuant to the provisions of s.6D(b). The discretion to do so will rarely be exercised.[1] In the present case the sentencing judge identified evidence that suggested that the appellant represented a continuing danger to the community and said that he was authorised by the Act to impose a disproportionate sentence, but he did not say that he was imposing a disproportionate sentence. He said only that the statutory provisions in both paragraphs (a) and (b) of s.6D were "an important consideration in relation to the sentences I shall impose".

   [1]See R. v. Barnes [2003] VSCA 150 at [21] per Callaway, J.A.

1. Further, if his Honour did impose a disproportionate sentence or intended to, he failed to make any assessment as to whether the appellant would remain a danger to the community beyond the term of a proportionate sentence.  I am not confident that such a finding was necessarily implicit in the sentencing remarks.  In any event, the finding that the appellant would represent a danger to the community at the end of a proportionate sentence, a finding that was required to be made according to the standard of proof beyond reasonable doubt, should have been made expressly. 

1. Counsel for the respondent conceded that the sentencing judge erred in the way in which he dealt with the provisions of Part 2A of the Act. Accordingly, the sentencing discretion has been re-opened.

1. The appellant was able to rely upon mitigating factors of some weight:  his admissions to the police, his pleas of guilty, his relative youth, his likely mental disorder, probably due to his disturbed upbringing, and the fact that he is in protective custody.  Nevertheless the seriousness of the crimes and the appellant's proclivities and fragile mental state in my opinion lead to the result that a stern sentence is required.  The sentence which I consider appropriate and proportionate to the gravity of the offence is one which affords, in my view, sufficient protection to the community.  I do not think it is necessary to impose a disproportionate sentence in order to achieve the principal purpose for which the sentence is imposed.  I would re-sentence the appellant to be imprisoned for a term of five years on count 1, to a term of four years on count 2, to a term of two years on count 3 and to a term of six years on count 4.  I would order that two years of the sentence imposed on count 1 and one year of the sentence imposed on count 3 be served cumulatively on each other and on the sentence imposed on count 4.  Otherwise, the sentences are to be served concurrently.  The total effective sentence is nine years' imprisonment.  I would fix a non-parole period of six years.  In fixing the non-parole period, amongst other things, I am conscious of the age of the appellant and also that his prospects of successful rehabilitation may become clearer with the passage of time.

EAMES, J.A.: 

1. I agree.

NETTLE, J.A.:

1. I also agree.

BUCHANAN, J.A.: 

1. The formal orders of the Court will be:

The appeal is allowed. 

The sentences below are set aside.  In lieu thereof the appellant is sentenced to be imprisoned for a term of five years on count 1, to a term of four years on count 2, to a term of two years on count 3 and to a term of six years on count 4.

It is ordered that two years of the sentence imposed on count 1 and one year of the sentence imposed on count 3 be served cumulatively on each other and on the sentence imposed on count 4.  Otherwise the sentences are to be served concurrently.
The total effective sentence is nine years' imprisonment.
It is ordered that the appellant serve a term of six years' imprisonment before being eligible for parole.
It is declared that 435 days are to be reckoned as already served and it is ordered that there be noted in the records of the Court the fact that that declaration was made and its details.
It is declared that the appellant is sentenced as a serious sexual offender on all offences with which this appeal is concerned and it is ordered that that fact be entered in the records of the Court.
It is declared that the appellant must continue to comply with the reporting obligations imposed by Part 3 of the Sex Offenders Registration Act 2004 for a period of 15 years.

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