Rootsey v The Queen

[2018] VSCA 108

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0259
COLIN MICHAEL ROOTSEY	Applicant
v
THE QUEEN	Respondent

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JUDGES:	OSBORN and PRIEST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	30 April 2018
DATE OF JUDGMENT:	30 April 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 108
JUDGMENT APPEALED FROM:	DPP v Rootsey [2017] VCC 1250 (Judge Saccardo)

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CRIMINAL LAW — Appeal — Sentence — Rape — Applicant sentenced as an adult for offence committed when a child — Whether sentencing judge erred by sentencing the applicant on the basis that he was an appropriate vehicle for general deterrence — Whether sentence manifestly excessive — Application for leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J D Williams	Victoria Legal Aid
For the Respondent	Mr J C J McWilliams	Mr John Cain, Solicitor for Public Prosecutions

OSBORN JA
PRIEST JA:

Introduction

1. Almost thirty years ago, the applicant, then aged 16, raped a woman, aged 25.

1. On 10 July 2017, the applicant pleaded guilty in the County Court to one charge of rape.[1]  

   [1]Crimes Act 1958, s 45(1). At the time that the offence was committed, the maximum sentence was 10 years’ imprisonment.

1. Following a plea, on 30 August 2017 the judge sentenced the applicant to be imprisoned for two years and six months, and fixed a non-parole period of 16 months.

1. The applicant seeks leave to appeal his sentence on two grounds as follows:

1.   The learned sentencing judge erred by sentencing the applicant on the basis that he is an appropriate vehicle for general deterrence.

2.   The total sentences imposed are manifestly excessive in light of:

a.the applicant’s early plea of guilty;

b.the fact that the applicant was a child at the time the offence was committed;

c.the inapplicability of general deterrence;

d.the sentencing judge’s finding that specific deterrence should not be accorded significant weight;

e.the applicant’s background of trauma; and

f.the fact that the applicant’s mental health would cause the service of a period of imprisonment to weigh more heavily upon the applicant than it would upon a person in normal health.

1. In our view, leave to appeal should be refused for the following reasons.

The offending

1. The circumstances of the applicant’s offending are disturbing.  They are set out in the Summary of Prosecution Opening Upon Plea:

Preliminary

1.   [The applicant] was born on 2 September 1971.  On 21 May 1988 the [applicant] was 16 years of age and resided at [an address in Glenroy], with his mother ...

2.   [‘TVH’], (the complainant) was born [in 1963] ...

20 May 1988

3.   On Friday 20 May 1988, at approximately 8 pm the complainant attended at the Meadow Inn Hotel on Sydney Road Fawkner with her boyfriend, [‘DK’], and a couple of friends.  Sometime late in the evening they left the venue.  The band was still playing as they left.

4.   They then had an argument in the car park at the venue and consequently [DK] stormed off alone in a southerly direction…