Roper v The Queen
[2016] VSCA 52
•23 March 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2014 0181
| DAVID ROPER |
| v |
| THE QUEEN |
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| JUDGES: | WHELAN and COGHLAN JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 16 March 2016 |
| DATE OF JUDGMENT: | 23 March 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 52 |
| JUDGMENT APPEALED FROM: | DPP v Roper (Unreported, County Court of Victoria, Judge Patrick, 22 July 2014) |
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CRIMINAL LAW – Application to admit new evidence on appeal against sentence – Applicant’s symptoms of bowel condition existing at time of sentence but not brought to attention of sentencing judge – Whether it would make prison more burdensome for applicant – Uncertain diagnosis – New material not sufficiently compelling to demonstrate miscarriage of justice – Application dismissed.
CRIMINAL LAW – Appeal – Sentence – Four charges of sexual penetration with a child under 16 – Whether manifestly excessive – Two victims – Voluntary disclosure – Prosecution for offences against first victim would not have proceeded apart from the disclosure – R v Ellis (1986) NSWLR 603 applied – Sentence not manifestly excessive – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr J E McLoughlin | Victoria Legal Aid |
| For the Respondent | Ms F L Dalziel | Mr J Cain, Solicitor for Public Prosecutions |
WHELAN JA
COGHLAN JA:
On 22 July 2014 the appellant pleaded guilty to a number of sexual offences. Following a plea on that date, he was sentenced in the County Court as follows:
Charge Offence Maximum Sentence Cumulation 1 Taking part in an act of sexual penetration with a child under 16 (under 10) [Crimes Act 1958 (Vic) s 45(2)(a) (as at 17 October 2001)]
[Representative Charge]25 years [Crimes Act 1958 s 45(2)(a) (as at 17 October 2001)] 4 years Base 2 Taking part in an act of sexual penetration with a child under 16 (under 10)
[Representative Charge]25 years 4 years 6 months 3 Taking part in an act of sexual penetration with a child under 16 (under 12) [Crimes Act 1958 (Vic) s 45(2)(a) (as at 1 July 2013)] 25 years [Crimes Act 1958 s 45(2)(a) (as at 1 July 2013)] 3 years 2 years 4 Taking part in an act of sexual penetration with a child under 16 (under 12) 25 years 3 years 6 months Total Effective Sentence: 7 years’ imprisonment Non-Parole Period: 5 years’ imprisonment Pre-sentence Detention Declared: 165 days 6AAA Statement: 9 years and 6 months imprisonment with a non-parole period of 7 years Other orders: Reporting pursuant to Sex Offenders Registration Act 2004 (Vic) for life
On 11 November 2014, Priest JA granted leave to appeal on the following grounds:
1.The individual sentences, total effective sentence and non-parole period are manifestly excessive in the light of the following matters:
(a) the mental impairment suffered by the appellant;
(b) the fact that the admissions volunteered by the appellant were the only evidence of the most serious offending (charges 1 and 2);
(c) the appellant’s otherwise high level of facilitation of the course of justice;
(d) the appellant’s remorse;
(e) the prospect that offence specific treatment would reduce the appellant’s risk of reoffending;
(f) the limited impact of the offences; and
(g) current sentencing practices.
2.The learned sentencing judge erred in her assessment of the appellant’s prospects of rehabilitation.
The appeal was fixed for hearing on 27 May 2015. Prior to the hearing date the appellant’s legal advisor swore an affidavit deposing to instructions he had obtained to the effect that the appellant suffered from a medical condition which had not been disclosed on the plea hearing and which was relevant to sentence. On 27 May 2015 this Court ordered Justice Health to produce certain medical records and adjourned the hearing of the appeal.
On 9 November 2015 the appellant affirmed an affidavit concerning his medical condition. On 11 November 2015 the appellant’s solicitor swore an affidavit exhibiting correspondence and medical records in relation to the appellant. On 12 November 2015 the appellant filed an amended notice of application for leave to appeal against sentence and a revised written case including a proposed third ground of appeal as follows:
The appellant should be re-sentenced in light of the evidence now available that he suffers from a chronic bowel condition which renders imprisonment more onerous for him.
The appellant’s personal background and circumstances of the offending
The appellant was born in 1979. He grew up in a regional city with his parents and a sister who is older than him. According to the account he gave to Ms Pamela Matthews, a forensic psychologist who prepared a report for the plea hearing, his father was autistic and his mother was an alcoholic. He described his home as ‘not a happy cheerful place’. He attended two local primary schools and three secondary schools. He completed his VCE and began a computer science degree at Melbourne University. According to the account he gave to Ms Matthews, he was not popular at school and was bullied. He dropped out of university.
The appellant has suffered from psychological problems over the course of his adult life. He has been hospitalised on a number of occasions in psychiatric units. According to Ms Matthews’ report, he is of superior intelligence but suffers from autism spectrum disorder described as ‘mild’.
In January 2000 the appellant appeared in the Shepparton Magistrates Court on a charge of indecent assault. He was then 20 years of age. He had been charged as a result of self-reporting to the police that he had indecently rubbed the genitals of a six year old girl. He was released on an undertaking to be of good behaviour until January 2002.
The offending which constituted the two representative counts, charges 1 and 2, occurred between 1 November 2001 and 31 December 2001. At the time the appellant was 22 years of age and the victim was six years of age. The appellant and the victim are related and were living in the same house at the time. The offending which constituted the charge 1 representative count involved digital penetration of the victim’s vagina. The appellant admitted to police that this had happened on 10 to 15 occasions. The offending which constituted the charge 2 representative count involved the penetration of the victim’s vagina with his tongue. The appellant told police that that had happened on five to 10 occasions. The offending was neither detected nor reported at the time.
By 2001 the appellant had met a woman through an autism support network and he later moved to Sydney to live with her. They married in 2007. She already had two sons of her own and she and the appellant had another son. They ran a business together, which was successful for some time but failed in 2010. The marriage then broke down. The appellant had moved back to Victoria by 2013.
The appellant’s mother had died and when he moved back to Victoria he lived with his father. He was depressed and using cannabis. It was in that context that the offending which constituted charges 3 and 4 occurred in September 2013. The offences occurred in the course of one occasion when the appellant stayed overnight at the victim’s family home. The victim was nine years of age and the appellant was then 34. The victim was the daughter of family friends. The offending involved the penetration of the victim’s vagina with his finger and penetration of her vagina with his tongue.
Circumstances of apprehension
At around the same time as the offending which constituted charges 3 and 4 occurred, the appellant contacted the victim in relation to charges 1 and 2 and made some disclosure of what he had done to her. The victim rebuffed him saying she did not need the stress or worry. In early January 2014 the victim of the offending in charges 3 and 4 disclosed something of what he had done to her in September 2013 to her parents. At about the same time the appellant, who was then in Queensland, disclosed the offending which constituted charges 3 and 4 to a family member, to staff at a psychiatric hospital and to police. Later in January 2014 the appellant contacted the first victim again. The first victim did not recall the offending but felt violated and angry when the appellant disclosed to her what he had done.
On 15 January 2014 the appellant was interviewed by police in relation to the offending which constituted charges 3 and 4. He made detailed admissions.
On 22 January 2014 the appellant contacted police in relation to the offending that constituted charges 1 and 2. Again, when interviewed, he made detailed admissions.
Material on the plea
The psychological report to which I have referred was dated 26 June 2014 and was tendered on the plea. The report set out the history the appellant had given. Ms Matthews set out a risk assessment analysis. Amongst other things, she concluded that the appellant met the diagnostic criteria for paedophilia. Her conclusion based on the risk analysis was as follows:
Mr Roper’s risk of future offending in a similar manner is estimated to be moderate, this risk estimate, has the potential to be lowered by offence specific treatment.
Ms Matthews expressed the opinion that Mr Roper’s self-reporting and other characteristics were ‘positive prognostic features’. She went on:
Further Mr Roper’s offending in the writer’s view appears to occur at times of acute psychosocial stress and depression. Hence in the writer’s view there is a mental state component in Mr Roper’s diminished or loss of self-imposed control. Substance use licit and illicit appears also … to be a factor at these times. It is more likely that there is complex interaction between psychosocial stress, mental … state and substance use interacting with self containment rather than any particular one of these three factors impacting specifically upon his behaviour.
Ms Matthews said that people with Mr Roper’s personal pathology can be sensitive to ‘psychosocial stress’ and that this sensitivity can be reflected in externalised behaviours such as substance use, self-injury or suicide attempts. She said that this was related to the emotional limitations Mr Roper experienced as a result of his autism spectrum disorder. She added:
In this respect, this is the mechanism by which Mr Roper’s autism spectrum disorder impacts directly upon his offence behaviour.
Ms Matthews repeated her opinion that the risk of re-offending was moderate and had the ‘potential’ to be lowered by offence specific treatment. As to the effect of imprisonment she concluded:
In regards to incarceration Mr Roper appears to be coping in custody but he’s likely to struggle with the social nuances of the prison environment and the close inter-personal confines of the prison environment hence his time in custody is likely to be more onerous than most.
Victim impact statements were filed by the victim of the offences which constituted charges 1 and 2, the victim of the offences which constituted charges 3 and 4, and the mother and father of the victim of the offences which constituted charges 3 and 4.
Notwithstanding her inability to remember the offending, the victim of the offences which constituted charges 1 and 2 said that since the disclosure she has felt hurt, angry and betrayed. She has suffered from anxiety and stress and from paranoia concerning her own daughter and men around her. It has affected her ability to trust others.
The victim of the offending which constituted charges 3 and 4 is still young. It is clear from her statement that the offending has undermined her sense of security and her happiness in general. The victim impact statements from her parents reveal that the offending has had a devastating impact upon them. Her father describes it as a ‘massive catastrophe’. He had pre-existing psychological problems and was significantly affected by the disclosure of the offending. The victim’s mother felt extreme anger and now has what she describes as ‘major issues’ in relation to trusting any male with her daughter outside immediate family members.
Sentencing remarks
At the time of sentence the appellant was 35 years of age. The sentencing judge set out the circumstances of the offending, the way in which the matters had come to the attention of police, and the appellant’s personal circumstances. She addressed Ms Matthews’ report in some detail. She referred to the autism spectrum disorder and to the fact that the appellant had suffered from depression which had led him to cannabis use. The sentencing judge noted the fact that he had been married for a period of years and had a sound history of employment.
On the basis of Ms Matthews’ report, the judge applied the principles in Verdins v The Queen.[1]
[1](2007) 16 VR 269.
When the sentencing judge turned to matters in mitigation she began as follows:[2]
As I have said, there are a number of matters which operate in mitigation of sentence. You are entitled to a significant discount for your plea of guilty. Your plea of guilty has saved the expense and trauma of a trial. You have made very significant admissions to police. Your admissions are particularly of critical importance in relation to your offending against [the victim of charges 1 and 2], as she herself had no recall of these incidents. The prosecution in this matter could not have proceeded apart from your admissions.
I accept that you are genuinely remorseful. I take into account what Ms Matthews has said about your views about your offending. I also take into account what Ms Matthews says about your mental state. It is clear that your mental health situation is complicated and that there are a number of factors operating. It appears from what Ms Matthews says that your mental state has led to some reduction in your ability to control your own behaviour and therefore there some reduction in your moral culpability for this offending.
[2]DPP v Roper (Unreported, County Court of Victoria, Judge Patrick, 22 July 2014) [35]–[36] (‘Reasons’).
As to prospects of rehabilitation the sentencing judge said:[3]
I assess your prospects of rehabilitation as being low to moderate. It appears you have some insight and you are remorseful, you are an intelligent person and able to engage in treatment. On the other hand, you have in the past, despite your remorse and some insight, continued to have a sexual interest in young girls and to offend against them. Your loss of control of your own behaviour is reflected in your offending against them and in also your contacting [the victim of charges 1 and 2] directly about your past offending. You did that rather than go straight to the police which would have been the appropriate action. These matters demonstrate the limitations of your insight into your own behaviour, the harm that you can cause and your limitations on your ability to control your own behaviour. As I have said, I can assess your prospects of rehabilitation as being low to moderate. Those prospects would clearly improve with appropriate treatment.
[3]Reasons [39].
The judge referred to delay in relation to charges 1 and 2 as a matter in mitigation. She correctly stated that in relation to charges 3 and 4 the appellant was to be sentenced as a serious sexual offender. The Crown did not seek a disproportionate sentence.
The proposed ‘new’ evidence ground
The November 2015 affidavits of the appellant and his solicitor set out material relating to what the appellant describes as ‘a medical condition [causing] a range of physical problems including severe abdominal cramps and substantial bleeding from the rectum’. The affidavits and supporting exhibits set out the following matters.
The appellant has had these symptoms since at least August 2010. He received treatment for his complaint in that year. A colonoscopy was performed and he was prescribed medication. The colonoscopy did not reveal any abnormality. For reasons which the appellant says related to ‘various pressures’ in his life at that time, he was not compliant with his medication and his symptoms continued to recur.
The appellant went into custody in February 2014. Later that year he complained to a prison doctor of ‘worsening symptoms’ and was told that he would be referred for a colonoscopy.
Prior to the plea hearing and sentence in July 2014, the appellant did not tell his lawyers of his condition. He says this was because he did not think that it was relevant.
After some delay, the appellant was examined at St Vincent’s Hospital in August 2015. A second colonoscopy was conducted in September 2015. That colonoscopy again revealed nothing abnormal. Pathological testing also failed to identify any relevant abnormality.
The appellant’s solicitors obtained an expert opinion from a gastroenterologist and physician, Professor Jon Watson, prior to the colonoscopy which was performed in September 2015. His report, dated 3 August 2015, reveals that the appellant’s diagnosis is uncertain. He recommended a repeat colonoscopy in order to exclude the possibility of bowel cancer. As indicated, that was later done. His final recommendation was the following:
I would recommend that he should have the opportunity for medical review on an urgent basis, should his symptoms worsen. As mentioned above, it would also be important to clarify that this condition does exist in your client, as there is no direct evidence of ulcerative colitis in the file today.
The appellant deposes that he now suffers symptoms at intervals of 1 to 3 weeks. He deposes that this is embarrassing, that he has limited access to pain medication, that it has led to weight gain and an inability to work and take part in activities, and that it has worsened his mental state.
It was submitted on behalf of the appellant that the affidavits filed reveal that the appellant suffers from a ‘chronic bowel condition’. Whilst it was accepted that the appellant knew of this condition prior to the plea and sentence, and that the evidence is not ‘fresh’, it was submitted that it ought to be admitted because it was necessary to do so in order to prevent a miscarriage of justice. It was submitted that the appellant’s bowel condition significantly increased the burden of imprisonment. He has no control over his treatment and the physical circumstances of confinement meant that his bowel complaint made prison more burdensome.
The respondent objected to reliance upon the new material. It was submitted that the evidence was not ‘fresh’ and that accordingly it should only be admitted if it was sufficiently compelling to demonstrate that there had been a miscarriage of justice. It was submitted that the totality of the medical material relied upon revealed an uncertain diagnosis. The two colonoscopies that had been performed, one in 2010 and one in 2015, were both normal. The gastroenterologist report which had been tendered was equivocal. It was submitted that there was nothing to suggest that proper treatment was not being given to the appellant’s condition in custody. It was submitted that the material relied upon indicated he was receiving better medical care in custody than he had received in the community when he had been non-compliant with his medication.
Both the appellant and the respondent submitted that the new material could only be relied upon if it was shown to be sufficiently compelling to demonstrate that there had been a miscarriage of justice arising from the fact that the material had not been brought to the attention of the sentencing judge.[4]
[4]Babic v The Queen (1998) 2 VR 79, 80; Romero v The Queen (2011) 32 VR 486, 489–90 [11]; Rehal v The Queen [2015] VSCA 81, [26].
In our opinion the material here is not of that character. Accepting that the appellant does suffer from the symptoms which he describes, this is not a case where the appellant suffers from a medical condition rendering his imprisonment more burdensome to such an extent that a miscarriage of justice has arisen as a result of the failure to bring that condition to the attention of the sentencing judge. There is no certain diagnosis. There is nothing to indicate that the treatment he has received, and will receive, in custody is not appropriate. The inconveniences he suffers are real but are not disabling in any very significant degree. If the matter had been revealed at the plea it is a factor which would have had to be taken into account but it is not of such a compelling character as to require a conclusion that a miscarriage of justice had, or could have, occurred because the appellant had not brought it to the attention of the sentencing judge. In this respect this case represents a stark contrast to that existing in relation to a somewhat similar medical condition dealt with by this Court in Spence v The Queen.[5]
[5][2013] VSCA 197. The successful applicant there had a serious diagnosed condition with consequences not understood or foreseen at the time of sentence, involving a risk of death and where the evidence was that the prison environment was far from satisfactory for minimisation of that risk.
We accept the submission of the respondent that the material is insufficiently compelling to be admitted. Accordingly, leave to rely upon the proposed ground 3 should be refused.
Submissions on the grounds of appeal — manifest excess and prospects of rehabilitation
Grounds 1 and 2 were argued together.
The appellant conceded that the sentencing judge had specifically addressed all of the matters detailed in ground 1. It was submitted, however, that the judge could not have given them sufficient weight. Particular emphasis was placed upon the voluntary disclosure of the offending which constituted charges 1 and 2. It was submitted that it was not clear from her Honour’s sentencing remarks that she had appreciated that this circumstance warranted mitigation in addition to that attached to the early guilty plea. It was submitted that the offending which constituted charges 1 and 2 would not have been prosecuted without the appellant’s voluntary disclosure.
In the appellant’s written case the voluntary disclosure was said to be ‘highly significant for the appellant’s prospects of rehabilitation’.
It was submitted that when regard is had to the sentencing statistics and to comparable cases, the sentences imposed here are in the median range when, given the appellant’s mental condition and youthfulness at the time of offending in relation to charges 1 and 2, his voluntary disclosure and the fact 13 years had elapsed between the two periods of offending during which time the appellant had led a ‘law abiding and largely productive life’, a ‘lower than usual sentence’ was required.[6]
[6]The appellant in his written submission referred to Sentencing Snapshots 33, 90, 119 and 149 and included a chart of cases being: Beyerv The Queen [2011] VSCA 15; R v XB [2009] VSCA 51; PG v The Queen [2013] VSCA 9; LQ v The Queen [2011] VSCA 135; PT v The Queen [2011] VSCA 43; R v JMA [2007] VSCA 105; DPP v Husar [2011] VSCA 70; R v NVD [2007] VSCA 230; DPP v CPD (2009) 22 VR 533; R v Iles [2009] VSCA 197; Hall v The Queen [2010] VSCA 349; JBM v The Queen [2013] VSCA 69; CMG v The Queen [2013] VSCA 243. The appellant also relied on R v Doran [2005] VSCA 271. Counsel for the respondent made detailed comments upon these cases submitting, amongst other things, that the case closest to this was JBM. Neither counsel placed significant reliance on either the sentencing statistics or what was said to be the comparable cases.
In oral submissions counsel for the appellant placed particular emphasis upon what was said to be the contrast between the sentences imposed on charges 3 and 4 (three years’ imprisonment on each charge) and those imposed on charges 1 and 2 (four years’ imprisonment on each charge). It was submitted that longer sentences on charges 1 and 2 were indicative of manifest excess given that charges 1 and 2 were entirely the result of the appellant’s own voluntary disclosure.
On behalf of the respondent it was submitted that the sentences imposed were clearly within the range. It was submitted that the sentencing judge had referred to all of the relevant matters and that no error had been demonstrated.
Grounds of appeal — analysis
In R v Ellis Street CJ said:[7]
This Court has said on a number of occasions that a plea of guilty will entitle a convicted person to an element of leniency in the sentence. …
When the conviction follows upon a plea of guilty, that itself is the result of a voluntary disclosure of guilt by the person concerned, a further element of leniency enters into the sentencing decision. Where it was unlikely that guilt would be discovered and established were it not for the disclosure by the person coming forward for sentence, then a considerable element of leniency should properly be extended by the sentencing judge. It is part of the policy of the criminal law to encourage a guilty person to come forward and disclose both the fact of an offence having been committed and confession of guilt of that offence.
The leniency that follows a confession of guilt in the form of a plea of guilty is a well recognised part of the body of principles that cover sentencing. Although less well recognised, because less frequently encountered, the disclosure of an otherwise unknown guilt of an offence merits a significant added element of leniency, the degree of which will vary according to the degree of likelihood of that guilt being discovered by the law enforcement authorities, as well as guilt being established against the person concerned.
[7](1986) NSWLR 603, 604 applied by Kirby J (in dissent as to the application of the reasoning) in Ryan v The Queen (2001) 206 CLR 267, 295–6 [95]–[97] and cited but not applied but other members of the Court: [11]–[12] (McHugh J); [153] (Hayne J); [185] (Callinan J).
Whilst the sentencing judge did not refer to Ellis the issue of voluntary disclosure was at the forefront of matters dealt with during the plea hearing. It was referred to early in the plea hearing by the prosecutor and it was the first matter addressed by the appellant’s counsel when outlining the matters to be taken into account in mitigation.
It seems to us that her Honour was fully conscious of the importance of the voluntary reporting and of the fact that it was a significant mitigating factor in addition to the plea of guilty. In our view this is reflected in the passage from the judge’s sentencing remarks where she dealt with the guilty plea and the disclosure which we quoted earlier.
The offending which constituted charges 1 and 2 was particularly serious. They were not isolated instances and occurred in a context of protracted offending.[8] The victim was six years of age. The offending occurred whilst the appellant was on a good behaviour bond for similar offending.[9] By way of contrast, the offences which constituted charges 3 and 4 were single instances, on an older child, after a period of over 10 years where he had not offended. As is almost invariably the case in this kind of offending, all the offences involved a significant breach of trust.
[8]The fact that the charge was a representative count is relevant in two ways: first, it represents the absence of a mitigating factor, since an accused cannot claim that the offence was an isolated event; secondly, the sentencing court must look at the conduct represented by the count in order to judge the offending in its full context: DPP v CPD (2009) 22 VR 533, 542 [38].
[9]The sentencing judge mistakenly considered that the bond had expired at the time of the offending: Reasons [10] and [28].
It seems to us that, notwithstanding the very significant importance rightly placed on the voluntary disclosure, the sentences imposed on charges 1 and 2 were within the range of sentencing options open. The maximum penalty was 25 years’ imprisonment. The appellant was on a bond for similar offending at the time. The sentences imposed on the appellant on charges 1 and 2 do incorporate a ‘significant added element of leniency’ for the voluntary disclosure.
In our view the sentences imposed on charges 3 and 4 were also within the range of sentencing options open to the sentencing judge. The issue of voluntary disclosure was not as significant there, as it could not be said in relation to those counts that disclosure was otherwise unlikely or that there was no evidence against the appellant other than his own admissions.
We have considered the sentencing statistics and the cases referred to in the submissions. In our view they fortify this conclusion.
The sentencing judge’s conclusion in relation to the appellant’s prospects of rehabilitation was a conclusion open to her on the material before her. She accurately summarised the factors she took into account. It was not suggested she had taken into account any irrelevant matter or overlooked any relevant matter.
The appeal on both grounds 1 and 2 should be dismissed.
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