Richard Harris[1] v The Queen
[2015] VSCA 247
•11 September 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2015 0061
| RICHARD HARRIS[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]This judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.
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| JUDGES: | PRIEST and BEACH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 11 September 2015 |
| DATE OF JUDGMENT: | 11 September 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 247 |
| JUDGMENT APPEALED FROM: | DPP v [Harris] (Unreported, County Court of Victoria, Judge Smallwood, 27 February 2015) |
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CRIMINAL LAW – Sentence – Application for leave to appeal – Incest (2 charges) – Common assault – Make threat to kill (2 charges) – Total effective sentence of 8 years' imprisonment with non-parole period of 5 years and 6 months – Whether sentence manifestly excessive – Totality – Not reasonably arguable that sentence manifestly excessive – Not reasonably arguable that principle of totality infringed – Application for leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr P J Smallwood | Littleton Hackford & D’Alessandro |
| For the Crown | Ms F Dalziel | Ms V Anscombe, Acting Solicitor for Public Prosecutions |
PRIEST JA
BEACH JA:
Introduction
On 23 February 2015, following a five-day trial in the County Court, the applicant was convicted of two charges of incest, one charge of common assault and two charges of making a threat to kill.[2] On 27 February 2015, following a plea, the applicant was sentenced as follows:
[2]The applicant was acquitted, by direction, of three other charges.
Charge on indictment Offence Maximum Sentence Cumulation 1 Incest 25 years 5 years Base 2 Common assault 5 years 3 months Nil 4 Incest 25 years 5 years 30 months 7 Make threat to kill 10 years 12 months 6 months 8 Make threat to kill 10 years 6 months Nil Total Effective Sentence: 8 years’ imprisonment Non-Parole Period: 5 years and 6 months Pre-Sentence Detention: 4 days Other orders: Reporting pursuant to Sex Offenders Registration Act 2004 for life
On 26 June 2015, Weinberg JA refused the applicant’s application for leave to appeal against his sentence.[3] Pursuant to s 315(2) of the Criminal Procedure Act 2009, the applicant has elected to renew his application. He seeks leave to appeal against sentence on the following ground:
[3][Harris] v The Queen (Unreported, Court of Appeal, Weinberg JA, 26 June 2015) (‘Refusal Reasons’).
The order for cumulation in relation to charge 4, the resulting total effective sentence and non-parole period are manifestly excessive and in breach of totality, particularly in view of the following matters:
- The Applicant is 49 years of age and has a limited prior history;
- The Applicant has no priors for sexual offending;
-There was a delay between the Applicant being interviewed and the trial being heard;
-The Applicant is unlikely to re-offend;
-The Applicant has reasonable prospects for rehabilitation;
-The Applicant’s poor physical health / jail will be more onerous for him;
-The order for cumulation on charge 4 requires the Applicant to serve 50% of this sentence cumulatively on both charge 1 and charge 7.
Circumstances of the offending
The circumstances of the applicant’s offending were summarised by Weinberg JA in his reasons for refusing the applicant leave to appeal as follows:
The applicant’s offending took place between January 2004 and December 2008. The complainant in respect of those offences, save for charge 7 (which concerned a threat made to the complainant’s then boyfriend), was the applicant’s stepdaughter. She was aged between 14 and 18 years at the relevant time.
The applicant had been in a relationship with the complainant’s mother since about 1990. They had had two sons together, born in [the 1990s].
In about 1997 or 1998, the family moved … [house]. The evidence of the complainant — which was accepted by the sentencing judge — was that the applicant had been violent towards her when she was growing up. At about the time she turned 14, he also started to touch her inappropriately, and sexually abuse her.
On one occasion in 2004, the complainant was sitting on the toilet. The applicant entered the toilet, put his hand between her legs, and inserted a finger into her vagina (charge 1 — incest). The complainant was still urinating at the time. The complainant’s mother then walked in, at which point the applicant withdrew his finger. The applicant then punched the complainant in the stomach, before walking out (charge 2 — common assault).
Following that incident, the complainant told her mother that the applicant had been abusing her for some time. Her mother instructed her to keep a diary of any occasion on which that occurred in future.
In June 2004, the complainant reported the applicant’s abuse of her to the Department of Human Services (‘DHS’). She told DHS that the applicant had been touching her on her bottom and breasts, over her clothes. As a result, the applicant was ordered to leave the family home. Over the next 18 months, he lived in various rental properties.
In early 2006, the complainant’s mother told her to retract the report that she had made to DHS. The complainant did so, and DHS closed their investigation. The applicant was subsequently permitted to return to the family home.
Shortly after having done so, he recommenced his abuse of the complainant. On one occasion in late 2006, the applicant forced the complainant to perform oral sex upon him. That incident took place in a shed at the [family home] (charge 4 — incest).
In addition to these acts, there were a number of uncharged acts which the sentencing judge accepted had been established beyond reasonable doubt, and which gave context to the offending for which the applicant was charged. This included one incident said to have occurred at a golf club in around 2006, during which the applicant inserted his penis into the complainant’s mouth, and had penile–vaginal intercourse with her. The sentencing judge also accepted that there were other occasions on which the applicant had had sexual intercourse with the complainant, and forced her to perform oral sex upon him.
In 2008, the complainant started a relationship with B. On one occasion, when he had visited the complainant at her home, the applicant was sitting at the kitchen table with a gun. The applicant called out to B, and told him to come into the kitchen. He pointed the gun at him, and said words to the effect: ‘You and [the complainant] have to break up, but if you don’t I’ll shoot you and get rid of your body’. B asked the applicant how he would do that, to which he replied that he would shoot him in the head, and burn his body (charge 7 — threat to kill).
Eventually, the complainant decided that she would leave the home permanently. On the night that she left, the applicant had been drinking and was violent towards her. He threatened to kill her, before walking into his bedroom. The complainant believed that the applicant had gone into his bedroom to retrieve a gun. However, as it turned out, the applicant did not have a gun with him (charge 8 — threat to kill).
The complainant reported the applicant’s offending to police. He was first interviewed by police on 23 February 2012. However, it was not until some three years later that the matter was listed for trial.[4]
[4]Ibid [4]–[15].
Personal circumstances of the applicant
The applicant was 49 years of age at the time of sentencing. He had a modest criminal history. He had previously appeared in court in relation to an unlawful assault, which the sentencing judge described as ‘minor’, and for which he received a non-conviction bond. He did not have any prior convictions for sexual offences. In his reasons for refusing the applicant leave to appeal against sentence, Weinberg JA summarised the applicant’s background in the following terms:
[The applicant’s] father passed away when [the applicant] was 14, and his mother was said to have been an alcoholic. His mother had been in relationships with various men when the applicant was a child, some of whom had been violent towards him. The applicant had also grown up in circumstances involving some financial hardship.
The applicant began drinking at an early age. He left school in Year 8, and was only marginally literate. He then worked in various jobs, including in a butter factory, abattoir, and as a removalist. However, the applicant had not been employed, in any capacity, for at least 15 years by the time he came to be sentenced.
At the plea, a report was tendered from the applicant’s GP. The report states that the applicant suffers from chronic, disabling back pain, as well as osteoarthritis in his right knee. He was said to be on a ‘huge amount’ of painkillers, 100 milligrams of Oxycodone and 80 milligrams of OxyContin, in order to deal with his condition.
At the time he came to be sentenced, the applicant remained in a relationship with the complainant’s mother. As previously noted, they have two sons together, both of whom were said to be supportive of the applicant.[5]
[5]Ibid [17]–[20].
Sentencing reasons
The trial judge commenced his reasons for sentence by noting that the applicant was 49 years of age, and that the applicant ‘[did] not have the benefit of a plea of guilty either accompanied by remorse, or the utilitarian benefits of it’.[6] As the trial judge also noted (correctly in our view), pleas of guilty in matters of the present kind do not put a complainant through the trauma of having to give evidence, and attract a ‘significant discount’.[7]
[6]DPP v [Harris] (Unreported, County Court of Victoria, Judge Smallwood, 27 February 2015) [3] (‘Sentencing Reasons’).
[7]Ibid.
The judge then noted that the applicant had a limited prior criminal history, and had no priors for sexual offending.[8]
[8]Ibid [4].
The judge then described the applicant’s offending in some detail.[9] In the course of describing the applicant’s offending, the judge said:
The offending that occurred after [the applicant’s return to the family home] has to be viewed in the light that it was after you had been removed from the house for a period of in excess of a year for offending in inappropriate conduct [sic] towards the complainant. That, in my view, puts it in a situation where whilst that no doubt aggravates the offence, per se, it certainly means that there are two quite distinct occasions which the jury have convicted you of, and that goes very much to the degree of concurrency that might otherwise have been ordered.[10]
[9]Ibid [6]–[22].
[10]Ibid [13].
Having described the applicant’s offending, the judge then said:
In a matter such as this general deterrence is extremely important, as well as denunciation and appropriate punishment. It has been said on many occasions that a society that does not protect its children can hardly call itself a society. You were in a position where I have no doubt you had control over the complainant, and in effect she was conditioned. The gross breach of trust involved in this is over two separate periods of time, as I have already indicated, having been sent from the home for, effectively, that very same conduct. Although the complainant did not describe it in as much detail to DHS as she has in this courtroom, you, in effect, did it again.[11]
[11]Ibid [23].
In addition to the matters above, the judge also had regard to the devastating impact that the offending had had upon the complainant. Unsurprisingly, this included ongoing psychological difficulties. The offending also resulted in the complainant having lost all contact with her family. In light of these factors, his Honour concluded that a custodial sentence ‘of significant proportions’ was required.[12]
[12]Ibid [27].
However, his Honour accepted that the applicant’s offending was ‘situational’, and that he posed a ‘low risk’ of reoffending. Accordingly, he determined that neither specific deterrence, nor protection of the community, were of ‘real significance’.[13]
[13]Ibid [24], [33].
Finally, his Honour accepted that the applicant’s medical condition would make prison particularly uncomfortable for him. He also took into account the fact that the applicant would likely have to serve his sentence under protection in Ararat, which would take him further away from his family.[14]
[14]Ibid [31]–[32].
Analysis
The applicant submits that the sentence imposed upon him was manifestly excessive and in breach of totality. The applicant places particular reliance upon his age; his limited prior criminal history; the fact that he has no prior convictions for sexual offending; the period of delay between the time he was interviewed by police and the time of trial (three years); the judge’s finding that the risk of the applicant reoffending was low; the existence of reasonable prospects for rehabilitation; the applicant’s poor physical health; and the fact that gaol will be more onerous for the applicant, than for someone without the applicant’s medical problems. It should immediately be noted that, in sentencing the applicant, the judge expressly took into account, in the applicant’s favour, all of the matters to which the applicant now refers.
The applicant submits that the order for cumulation in relation to charge 4 is manifestly excessive: it requiring the applicant to serve 50 per cent of the sentence imposed on that charge, cumulatively on the sentence imposed on charge 1 (and also charge 7). While the applicant concedes that the individual sentences imposed on charges 1 and 4 were within range, and that a measure of cumulation was required between charge 1 and charge 4 to reflect the different offending, the applicant contends that the cumulation ordered in respect of charge 4 infringed principles of totality, was excessive, and led to a total effective sentence and non-parole period which were ‘similarly manifestly excessive’.
These submissions must be rejected. As was properly conceded in the applicant’s written case, in light of the sentencing judge’s findings, it could not be asserted that the incest offences for which the applicant fell to be sentenced were isolated events. Further, as the Crown correctly submitted, there were a number of aggravating features in this case. First, in relation to charge 1, the act of digital penetration took place in particularly degrading circumstances. Secondly, the fact that the applicant was in possession of a gun was an aggravating feature of charge 7. Thirdly, the fact that charge 4 occurred at least 18 months after the acts giving rise to charge 1, and in circumstances where the applicant had been permitted to return home after the complainant was prevailed upon to withdraw her report to DHS was, in addition to being an aggravating circumstance, a matter that required a degree of cumulation on the basis that the incest offences for which the jury convicted the applicant (charges 1 and 4) were quite distinct, both in time and circumstances.
Having regard to the matters to which we have referred, we are unable to see any issue in relation to totality. Nor are we persuaded that it is reasonably arguable that any of the sentences imposed, or orders made, by the judge (cumulation or non-parole period) were outside the permissible range or a proper exercise of the sentencing discretion.
Conclusion
The application for leave to appeal must be refused.
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