R v Rankin

[2001] VSCA 158

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 350 of 2000

THE QUEEN

v.

KENNETH PAUL RANKIN

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JUDGES:	WINNEKE, P., VINCENT, J.A. and O'BRYAN, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 September 2001
DATE OF JUDGMENT:	5 September 2001
MEDIUM NEUTRAL CITATION:	[2001] VSCA 158

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Criminal law - Sentence - Term of 7 years with non-parole period of 5 years not "manifestly excessive" - Judge's entitlement to take into account potential impact of crime upon immature victim, in the absence of expert evidence, discussed - Whether judge had erroneously punished applicant for "uncharged conduct" - Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr C.G. Hillman	Ms K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr W.E. Stuart	Michael P. Coghlan

WINNEKE, P.:

1. On 3 November last year the applicant, Kenneth Paul Rankin, pleaded guilty in the County Court at Geelong to one count of raping a 15-year-old girl.  On 14 November the judge sentenced him to serve a term of seven years' imprisonment and fixed a non-parole period of five years.  The applicant applies to this Court for leave to appeal against that sentence.

1. The circumstances in which the rape occurred are sordid.  It took place on 21 March of last year in the bathroom of premises occupied by the applicant in a Geelong suburb.  In the premises at the time were the applicant's two sons aged 16 and 14 years respectively and an 18-year-old boy who boarded at the premises.  In the afternoon of that day the victim, who was a school friend of the applicant's younger son, arrived at the premises.  It would seem that she was a somewhat aimless child who from time to time was accustomed to shun the society of her own family and seek refuge in the homes of others.  That is what she was doing on this day.  The applicant told her that she could stay the night in his premises.  The applicant, who was 42 years of age at the time, appears to have been socially inept.  He had no job nor qualifications for any.  He had not worked for several years.  His marriage had been dissolved for some time.  His daughter lived with the mother and the younger boy, until this day, with the applicant.  The elder boy was in the care of the Human Services Department, but it appears that from time to time he visited his father, as apparently he had on this day.  The applicant's major pastime appeared to be the consumption of alcohol.  He had for years been an alcoholic;  for this, it seems, he was the recipient of a disability pension.

1. During the course of the evening of 21 March the applicant, the young victim and the young boys had embarked upon a drinking session.  The girl became thoroughly intoxicated, to the point of becoming insensible.  She was assisted to this condition by the applicant, who from time to time laced her less alcoholic beverages with neat whisky.  She began to vomit, although it would seem that she had no recollection of the events thereafter.  She was carried by the applicant and the boarder into the bathroom of the premises, where the applicant proceeded to undress her and place her on a stool in the shower, which was operated with a view to "cleaning her up".  What happened thereafter was observed by two of the boys.  The applicant removed her from the shower, placed her naked on her back on the bathroom floor, fondled her breasts and her vagina, pulled his pants down, and vaginally raped her.  The boys were sufficiently alert to be shocked by what they saw and called the police.  When the police arrived, at about 11.30 in the evening, the applicant and the victim were still in the bathroom, where the applicant was endeavouring, in vain, to put some clothes on to the girl. 

1. In a later record of interview the applicant was to admit that he had "humped" the girl a couple of times.  The girl was taken to the local hospital, where she was found to have vaginal abrasions.  During the course of his interview with police the applicant said that he had been drinking throughout the afternoon with one of his drinking companions, a man called Salingo.  When the boys and the victim arrived the drinking continued, until the girl became, in the words of the applicant, "paralytic".  During the course of the interview the applicant endeavoured to put what seems to have been a "favourable spin" on his actions by claiming that the girl was engaging in consensual kissing with him, but conceded that he had penetrated her in circumstances where she would have had no idea what was happening.  Following the interview he was charged with rape.

1. The unhappy events did not end there for the applicant.  Some two months later he had an argument with Salingo, during the course of which he was hit with a baseball bat and was admitted to hospital with a depressed fracture of the skull.  He now suffers from both physical tremor and emotional lability, probably from a combination of his physical and emotional injuries and his alcoholism. 

1. All of the matters to which I have referred were recited by and taken into account by the judge in her reasons when passing sentence.

1. It is now said by Mr Stuart, on the applicant's behalf, that her Honour's sentencing discretion had miscarried, principally for two reasons.  In the course of outlining the facts the judge said, amongst other things:

"In your record of interview you admitted also to fingering [the victim's] vagina, you said by accident, when you were assisting her into the shower."

Her Honour later said:

"It is likely that your crime will have a lasting detrimental psychological effect upon your victim.  Given her youth and sexual immaturity, it is likely that this experience will seriously damage and inhibit the future development of positive sexual relationships.  In addition, the trust and faith she might have placed in adults has been profoundly and possibly irrevocably damaged."

These remarks have translated themselves into two grounds of appeal, which were not taken in the original notice of application but were added by leave.  In substance they are:

"G.The judge erred by having regard to an earlier digital penetration when the sole charge was penile penetration."

"H.The judge erred by making findings about the impact of the rape upon the victim which were inconsistent with information that had been given to her by the prosecutor on the plea."

1. After serious consideration I think that, in the long run, there is nothing in either of the grounds.  The substance of the first is expressed by the contention that her Honour was punishing the applicant for an offence with which he had not been charged.  Mr Stuart submits that the error is manifested by the failure of the prosecutor and the judge to sufficiently indicate how they were dealing with this aspect, and, more particularly, made no mention as to how it was that the aspect to which the judge had referred was not to be used in the sentencing process.  None the less it seems to me to be obvious, from an analysis of the judge's sentencing remarks, that she was not punishing the applicant for this uncharged conduct.  Her Honour was simply reciting the circumstances as part of the narrative of events which occurred on the night to provide context for the offence for which the applicant fell to be punished.    It is not uncommon, in the prosecution of sexual offences, for reference to be made to uncharged sexual conduct to provide such a context.  There is nothing that I can see in her Honour's sentencing remarks to suggest that she was taking this conduct into account in punishing the applicant for the offence with which he was charged, as had been the case in Newman & Turnbull[1], to which Mr Stuart referred.  Indeed, as Mr Hillman pointed out during the course of argument, the applicant's description of the conduct as accidental was never challenged on the plea. 

   [1][1997] 1 V.R. 146.

1. Nor, in my view, was her Honour in error in over-emphasising the potential effect on the victim of the events of this night.  Mr Stuart said that the findings were inconsistent with the material that the prosecutor had put before the judge as to why he was not putting before the court a victim impact statement on behalf of the girl.  It is true that her Honour did not have before her a victim impact statement.  The potential consequences to a 15-year-old girl of this type of abuse by a 42-year-old man are sufficiently notorious to enable a sentencing judge to take account of them.  Indeed, in the course of the plea, counsel who was then appearing for the applicant said:

"Your Honour, as has been pointed out here, it is probably quite fortunate in many respects that the young lady does not recall anything to do with the assault upon her.  I do not dispute, however, that no doubt this will have a long-term effect upon her and may well impact upon her future."

Mr Stuart argues that this concession was "at odds" with the prosecutor's former remarks.  However, he said that they cannot eliminate the instructions given by the prosecutor which seem to run counter to the findings which the judge ultimately made.  Again, Mr Stuart contends that the ultimate sentence imposed by her Honour reflects the undue attention which she had given to this aspect of the sentencing. 

1. Although the judge put the matter somewhat higher than I might have been inclined to put it myself, it was none the less, I think, legitimate for her to have regard to the potential impact on an immature victim which the ordinary course of human affairs suggests is likely to flow from this type of crime.  Judges in this day and age do not need experts to draw such conclusions.  It is commonplace now for courts to take account of the potential impact which sexual abuse is likely to have in moulding the character and personality of its victims.  Courts cannot turn a blind eye to the state of knowledge which is available to them and which is now well recognised by the community at large.  There is nothing, I think, in the sentence which was imposed by her Honour which suggests to me that she was unduly influenced by this aspect of the applicant's crime or had given it more weight than it deserved in the sentencing process.

1. Various other grounds were relied upon by Mr Stuart in contending that the sentence imposed was manifestly excessive.  They included the early plea of guilty, the confession made by the applicant, his remorse, the absence of relevant prior convictions, and the consequences to him of Salingo's later assault.  Mr Stuart placed particular reliance upon the early plea of guilty, which, he contended, cannot be seen to have been given full weight in the sentencing process.  In this context, he submits, the seven years imposed is far too much.  Her Honour, in the course of careful reasons, paid attention to all of the matters which were raised by Mr Stuart. 

1. In the long run, I am not persuaded that the sentence which her Honour imposed was manifestly excessive.  Rape in any circumstances is an abhorrent crime.  It is particularly abhorrent when perpetrated upon a young girl by an older man, who did not know her, and who had taken advantage of her incapacity in his own home into which he had taken her to provide her with "refuge";  and for no better reason than to satisfy his own sexual lust.  Her Honour was, for these reasons, entitled to regard, as she did, this particular course of offending as a serious example of the crime of rape.  Those who commit such offences must expect substantial gaol terms, sufficient to send a strong message to the community that such conduct will not be tolerated.  It seems to me that in imposing the term of imprisonment which she did for an offence which carries a maximum term of 25 years, her Honour has appropriately weighed the gravity of the applicant's conduct against the personal factors which he was legitimately entitled to have taken into account.  Despite the fact that the applicant's background and lifestyle can truly attract the epithet "pathetic", I am far from persuaded that the sentence imposed, although a stern one, was outside the range appropriately available to the judge.

1. In those circumstances I would propose that the application be dismissed.

VINCENT, J.A.: 

1. I agree.

O'BRYAN, A.J.A.: 

1. I agree.

WINNEKE, P.: 

1. The formal order of the Court will be that the application for leave to appeal against sentence is dismissed.