Schembri v The Queen
[2020] VSCA 217
•1 September 2020
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2019 0227
| NATHAN SCHEMBRI | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | MAXWELL P and NIALL JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 11 August 2020 |
| DATE OF JUDGMENT: | 1 September 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 217 |
| JUDGMENT APPEALED FROM: | [2019] VCC 1774 (Judge Hampel) |
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CRIMINAL LAW – Appeal – Sentence – Sexual penetration of child under 16 (3 composite charges) – Drug trafficking (6 charges) – Total effective sentence 5 years’ imprisonment, non-parole period 2 years, 6 months – Sexual penetration sentences from 3 years to 3 years 6 months – Whether manifestly excessive – Difference in age and maturity – Applicant was 18, victim 13 – Distinct episodes – Persistent offending – Applicant aware sexual activity unlawful – Whether sufficient weight given to guilty pleas, prior good character, youth, good prospects of rehabilitation, remorse and delay – Sentence within range – Leave refused – Clarkson v The Queen (2011) 32 VR 361; [2011] VSCA 157 considered.
CRIMINAL LAW – Trial – Procedure – Pleading – Indictments - Charging practices – Use of ‘composite charges’ deprecated – Holland (a Pseudonym) v The Queen [2018] VSCA 241 followed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant: | Mr D Swan | Victoria Legal Aid |
| For the Respondent: | Mr P L Bourke | Ms A Hogan, Solicitor for Public Prosecutions |
MAXWELL P
NIALL JA:
The applicant, who applies for leave to appeal against sentence, pleaded guilty in the County Court to charges contained on two indictments. The first indictment contained six charges of trafficking in various drugs of dependence between 21 October 2015 and 19 July 2016. Messages on the applicant’s phone showed widespread trafficking activity in MDMA, GHB, methylamphetamine, ketamine, cocaine and amphetamine over that period, although it was not possible to quantify the total amount of any of the drugs he trafficked. The judge observed that it was a regular, continuing business, in which the applicant was actively involved, and that the bulk of the applicant’s business seemed to be in trafficking MDMA, followed by, in descending scale, methylamphetamine and amphetamine, with lesser quantities of GHB, ketamine and then cocaine.[1]
[1]DPP v Schembri [2019] VCC 1774, [20] (‘Reasons’).
The second indictment contained three charges of sexual penetration of a child under 16 years of age. Those charges were committed against a young girl who was 13 at the time of the offending.[2] The applicant was then 18 years of age. They occurred on the evening of 20 December 2015 at the applicant’s home, where he was living with his mother.
[2]K was born on 22 December 2001 and turned 14 the day after the offending.
The applicant was sentenced as set out in the following table.
The first indictment Charge
Offence
Maximum
Sentence
Cumulation
1. Traffic a drug of dependence (MDMA)[3] 15 years 18 months (aggregate) 12 months cumulation upon the sentence on the second indictment 2. Traffic a drug of dependence (GHB) 3. Traffic a drug of dependence (methylamphetamine) 4. Traffic a drug of dependence (ketamine) 5. Traffic a drug of dependence (cocaine) 6. Traffic a drug of dependence (amphetamine) The second indictment 1. Sexual penetration of a child under 16[4] 10 years 3 years 3 months 2. Sexual penetration of a child under 16 3 years and 3 months 3 months 3. Sexual penetration of a child under 16 3 years and 6 months Base Total Effective Sentence: 5 years’ imprisonment Non-Parole Period: 2 years and 6 months’ imprisonment (1) of the Sentencing Act 1991Pre-Sentence Detention declaration pursuant to s 18: 7 days’ imprisonment 6AAA Statement: 8 years, with a non-parole period of 6 years. Other relevant orders: Sentenced as a serious sexual offender (charge 3 — the second indictment), SORA reporting period for 15 years and forfeiture order. [3]On this indictment, charges 1–6, s 71AC of the Drugs, Poisons and Controlled Substances Act 1981.
[4]On this indictment, charges 1–3, s 45(1) of the Crimes Act 1958. We note that s 45 has since been repealed.
The proposed ground of appeal contends that the individual sentences for the sexual offences are manifestly excessive and that, in consequence, the total effective sentence and non-parole period are also manifestly excessive. For reasons which follow, we have concluded that leave to appeal must be refused.
The sexual offences
In 2015, the victim (‘K’) was in secondary school in regional Victoria. Around the start of the December school holidays, she met the applicant’s younger sister. The sister invited K to stay with her for a few days, at the house she shared with her father. When the applicant first met K, she told him that she was 15.
A couple of days later, on 20 December 2015, K attended an 18th birthday party. Beforehand, the applicant’s sister had apparently told K that it was not convenient for her to stay at her place that night. The applicant and his sister had arranged that K would stay at the applicant’s house, where he lived with his mother.[5]
[5]Reasons [5].
On that evening, and into the morning of 21 December 2015, the applicant engaged in three separate episodes of penetrative sexual activity with K, resulting in the three charges. During the first episode, and after various acts of touching and penetration (digital, lingual and, on three separate occasions, penile), K asked whether the applicant was wearing a condom. The applicant said ‘no’ and got out of bed and put one on. He then asked K if it was her ‘first time’ and she replied ‘yes’. After having put a condom on, the applicant penetrated her vagina again with his penis and, on that occasion, ejaculated.
These events were the subject of charge 1, described in the prosecution opening as a ‘composite charge’. (We discuss the use of this term later in these reasons). Charge 1 on the indictment alleged that the applicant:
… took part in an act of sexual penetration with [K], a child under the age of 16, in that he introduced his fingers into her vagina, his tongue into her vagina, his penis into her vagina (occasion one), his penis into her vagina (occasion two) and his penis into her vagina (occasion three).
Lying next to K, the applicant asked her again if it was her ‘first time’, and she replied that it was. The applicant said: ‘Oh I feel bad’. He got out of the bed, removed the condom and put his underwear on. He threw K’s clothes to her and she put them back on. K went to sleep.
During the night, there was further sexual activity involving penetration of K’s mouth with the applicant’s penis and vaginal penetration with the applicant’s tongue, fingers and penis. K believed the applicant put on a condom before the penile penetration, but did not know for sure. These events were the subject of charge 2, another ‘composite charge’.
After this second episode of penetrative activity, the offender stood up, put his underwear on and gave K her clothing, which she put on. They both lay on the bed. K told the applicant that it would be her 14th birthday in two days’ time, to which the applicant said: ‘You’re 13 … why didn't you tell me you were 13? … I thought you were 15.’
After the applicant was told by K that she was 13, he asked her to have sex with him again. K said: ‘Isn’t it bad now that you know that I am 13?’. The applicant replied: ‘No, who cares? It’s already been done so might as well’. Then followed another act of penetration of K’s mouth with the applicant’s penis, followed by vaginal penile penetration (without a condom) but the penetration did not proceed to ejaculation. These events were the subject of charge 3.
The following morning, the applicant dropped K at his father’s house and told her: ‘Don’t tell anyone what happened because it’s illegal’. He later messaged K over Facebook and said: ‘Seriously, don’t tell anyone, you can’t say a word’. The applicant had no further contact with K before returning to Melbourne.
Drug offences
Early on the morning of 16 July 2016, police officers observed the applicant in King Street, Melbourne, and spoke to him. A search revealed 29 ecstasy tablets, two vials containing GHB and $300 in cash. The applicant was arrested. In an interview that day, he said that the drugs were for personal use.
Under a search warrant, police seized the applicant’s mobile phone, which contained a large number of text messages relating to trafficking various drugs, including references to selling up to multiple hundreds of MDMA tablets at a time. In addition, photographs and videos located on the device captured drugs in various forms.
Telephone analysis revealed regular, organised offending between October 2015 and July 2016. Some of the messages were with customers, others with suppliers or other drug dealers. As the judge noted, the applicant’s active involvement in a continuing business of trafficking was demonstrated by the volume and regularity of messages, as well as the use of various slang terms for different substances, including ‘flippers’, ‘MD’, ‘bikkies’, ‘Superman’ and ‘Batman’ for MDMA, ‘bots’ for GHB, ‘whip’ for methylamphetamine, ‘ket’ and ‘Special K’ for ketamine, ‘coke’ for cocaine and ‘speed’ or ‘goey’ for amphetamine.
The reasons for sentence
The reasons for sentence are careful and detailed. It is not suggested that the judge failed to take into account any relevant matter or that the reasons disclose any specific error.
The applicant relies on a number of matters which, he contends, combine to render the sentences imposed in relation to the sex offences manifestly excessive: his youth, delay in bringing the charges, pleas of guilty, prior good character and strong evidence of rehabilitation and remorse. It is convenient, therefore, to set out how the judge dealt with each of these matters. But first, it is appropriate to refer to some matters of background and to the judge’s assessment of the gravity of the offending.
The applicant completed high school, though not without difficulty. He struggled with attendance and disciplinary issues at school prior to year 9. The applicant changed schools and his behaviour worsened. He then completed an automotive pre-apprenticeship at TAFE before returning to complete his secondary schooling, culminating with year 12 VCAL.
Following year 12, he moved to Melbourne and found relatively consistent employment. Without any parental support, however, he became involved in the nightclub scene and his own drug use, which had started with cannabis in his mid-teens, increased. Then he began selling drugs.
Following the death of a friend in a motor vehicle accident, the applicant returned home to live with his mother. He found work first as a machine operator and then as an apprentice as a mechanical engineer. The judge noted that the applicant had abstained from drug use since the death of another friend to suicide in early 2019.[6] In the lead up to the plea, the applicant attempted to take his own life by an overdose of Valium and Endone.[7]
[6]Ibid [43].
[7]Ibid [45].
We shall return to some further detail of these matters shortly.
In relation to the first two composite charges, the judge observed that the applicant believed that K was only 15. Her Honour said: ‘That in itself was bad enough as [he] knew she was under age’. In her Honour’s view, the fact that the applicant persisted in the third episode of offending after finding out that she was only 13 ‘clearly makes it worse’.[8]
[8]Ibid [30].
It was clear, her Honour said, that the offending was ‘nothing other than an opportunity to satisfy [his] own sexual gratification with someone in whom [he] otherwise had no interest.’[9] He was not prepared to desist, either when he knew that it was K’s first sexual experience or when he knew that she was only 13.[10] The judge described the offending as ‘selfish and disrespectful behaviour towards a girl so young.’[11] The applicant knew that K was ‘vulnerable’ and was in an unfamiliar place.[12]
[9]Ibid.
[10]Ibid.
[11]Ibid.
[12]Ibid.
The judge also regarded the age disparity as significant, taking into account not just the chronological gap but observing that:
The significance is the experience and maturity gap between a 13 year old schoolgirl and the 18 year old that you were at the time: somebody back home in [regional town], after having lived an independent life in Melbourne and being involved in running a drug dealing enterprise in the nightclub scene there. Your conduct, revealed by the drug dealing activity, shows that you were engaging in wholesale, serious criminal, adult activity.[13]
[13]Ibid [31].
The judge also took into account the impact on K. In that regard, she referred to the Victim Impact Statement (‘VIS’) in which K described being treated ‘like a piece of meat’.[14] The judge accepted that the impact on K had been significant, observing that it was:
… her first sexual encounter and it was one not accompanied by any affection, romance or even a fleeting sense of love or engagement, which made it much worse.[15]
[14]Ibid [33]–[34].
[15]Ibid [33].
In relation to the trafficking charges, the judge pointed to the following factors that marked the seriousness of the offending: the duration (a period of 9 months), the widespread nature of it (six different types of drug), the volume (as evidenced by the text messages), the fact that this was an ongoing business enterprise and that the applicant’s arrest on 16 July 2016 did not stop the dealing.[16] Although arrested, charged and bailed, the messages on the applicant’s phone showed that he had continued the conduct undeterred.[17]
[16]Ibid [35].
[17]Ibid.
The judge concluded that each group of offences, when considered alone, constituted ‘serious examples of each type of serious offence’.[18] Both episodes of offending illustrated that the applicant was behaving ‘without conscience or compunction, and the fact that the sexual offending occurred during the period of trafficking, [made] that even clearer.’[19] The judge noted that the applicant had entered the adult criminal justice system with ‘very serious offending in two quite separate and discrete areas of serious criminal activity’.[20] Subject to considerations personal to the applicant, denunciation and deterrence, both general and specific, were important sentencing considerations.[21]
[18]Ibid [36].
[19]Ibid.
[20]Ibid [28].
[21]Ibid [37].
Delay
In early 2016, K went to police. In May 2016, in a pretext telephone call recorded by police, the applicant acknowledged having sex with K.
On 16 July 2016, the applicant was arrested in possession of drugs in King Street, charged and bailed. He made a (predominantly) no comment interview.
On 19 July 2016, a warrant was executed and the applicant’s telephone seized, and he was interviewed in relation to the sexual offending. He said that he could not remember the whole night because he was intoxicated. He said K had told him that she was 16 and her Facebook page had her age as 16. He denied having a conversation with K about her being 13. The applicant said that he had sex with her on one occasion, using a condom.
On 8 December 2017, the applicant was interviewed by police in relation to the evidence of trafficking revealed from the text messages on the seized phone. The applicant denied trafficking.
On 5 February 2018, the applicant was charged with both the sexual offences and the drug trafficking. He submits that this represents an unexplained delay of 1 year, 6 months and 17 days from the time of his record of interview on 19 July 2016. Without the delay, he submits, he would have been sentenced at the age of about 20 years and 6 months rather than at the age of 22.
On 17 January 2019, the applicant was committed for trial and entered pleas of guilty to six charges of trafficking over a nine-month period. On 21 February 2019, he pleaded guilty to the three composite charges relating to the sexual offending. He was sentenced on 29 October 2019.
The judge described the delay as of great concern and as ‘clearly … not justifiable.’[22] No explanation had been offered ‘other than operational or resourcing issues within Victoria Police’.[23] The judge said that it was ‘simply not fair or right’ that the applicant had had the charges hanging over his head for so long.[24] She took into account that the delay had ‘clearly had an oppressive and punitive effect’ on him.[25]
[22]Ibid [53]–[54].
[23]Ibid [54].
[24]Ibid [55].
[25]Ibid.
In this respect, a psychological report provided a diagnosis of Adjustment Disorder with Mixed Anxiety and Depressed Mood. The condition had developed in response to the applicant’s being arrested, charged and pleading guilty to the charges.[26] As noted earlier, the applicant attempted suicide by overdose in June 2019.
[26]Ibid [51].
Rehabilitation and remorse
The judge also noted that the time had provided an opportunity for the applicant to demonstrate rehabilitation and remorse.[27] His acknowledgment of wrongdoing was by no means immediate. In that respect, the judge noted that when interviewed by police in respect of both offending the applicant denied wrongdoing.[28] Further, there was evidence of the applicant continuing to traffic between his arrest on 16 July 2016 and the seizure of his phone three days later.[29] Nevertheless, no doubt based on his recent work history and self-reported abstinence from drugs, the judge regarded the applicant’s prospects of rehabilitation as ‘good.’[30]
[27]Ibid [48]-[49].
[28]Ibid [16], [23], [41].
[29]Ibid [35].
[30]Ibid [52].
After returning to his home town, the applicant gained meaningful employment and stopped taking drugs. He obtained a mature age apprenticeship as a mechanical fitter. References before the Court attested to his commitment and work ethic.[31]
[31]Ibid [42].
The judge took into account that the applicant had abstained from drug use, there was no evidence of offending after 19 July 2016 and the applicant had written a letter of apology.[32] His steps towards abstaining from drug use had been encouraged as a result of the death of a close friend in a car accident and the subsequent suicide of another friend.[33]
[32]Ibid [48]–[49].
[33]Ibid [40], [43].
The judge concluded that:
… obtaining and maintaining proper vocational employment, the absence of any further offending and the report of decreased drug use and then abstinence, are all positive matters counting in your favour. All of those show positive changes during that period of what is unacceptable and inexcusable delay between the offending and the hearing.[34]
[34]Ibid [48].
The judge accepted that the apology, plea of guilty and positive steps to improve his life all demonstrated remorse and that the pleas of guilty had utilitarian value.[35] These matters, the judge said, operated to ‘significantly reduce the sentence that otherwise would have been appropriate.’[36]
[35]Ibid [49].
[36]Ibid.
Age
The judge also took into account the applicant’s age, then 22, saying that:
… the importance of recognising the role youth and immaturity play in offending by young people must be given proper weight and that the weight to be given to encouraging rehabilitation, particularly if it is already underway by the time of sentencing, operates to reduce the weight otherwise to be given to general deterrence.[37]
[37]Ibid [56].
Applicant’s submissions
The applicant’s submissions focused on the sentences imposed on the sex offences and, in particular, the base sentence on charge 3 and the overall total effective sentence. He does not contend that the aggregate sentence imposed on the drug offences was excessive, simply asking the Court to take that sentence into account when assessing totality.
As on the plea, counsel for the applicant conceded that the age difference between the applicant and K was significant, and that the difference in maturity was greater again than the age difference. Counsel conceded that it was a case of ‘straight out sexual gratification without any emotional or other involvement’. On the other hand, he submitted, the offending occurred during the course of one evening, and it was not accompanied by any of the aggravating factors that are often seen in such cases: coercion, threats, violence, significant age disparity, breach of trust or a relationship of care, supervision or authority.[38]
[38]At the time of the offending, had there been a relationship of care, supervision or authority between the applicant and K, the maximum penalty would have been 15 years’ imprisonment in accordance with Crimes Act1958, s 45(2)(b) as it then was.Section 16 of the Crimes Amendment (Sexual Offences) Act 2016 substituted the division which contained s 45. The offence provision was re-enacted with some modifications as s 49B.
The applicant emphasised that the plea had utilitarian value and was accepted by the judge as being indicative of remorse.
The applicant had no prior convictions and no further convictions emerged during the long interval between the commission of the offending and conviction, which supported his prospects of rehabilitation.
The applicant had just turned 18 at the time of the offending and had just turned 22 at the time of sentencing. This meant that a focus on rehabilitation was appropriate.
He relied on the delay of more than 18 months between his record of interview and the laying of charges. As noted earlier, the judge described the delay as punitive, oppressive and unjustifiable. He also relied on the psychological evidence of his reactive mood disorder, and on the stress that had led him to attempt suicide by overdose in June 2019. He argued that the delay had affected the availability of sentencing dispositions, notably, eligibility for a Youth Justice Centre Order. In addition, he relied on the findings made by the judge as to his prospects of rehabilitation and remorse.
The applicant relies on Best v The Queen[39] as indicative of current sentencing practice. In that case, this Court upheld an appeal against a sentence imposed on three charges of sexual penetration of a child under 16. The offender had been sentenced to a head sentence of 5 years, 3 months and 21 days’ imprisonment with a non-parole period of 3 years. There were three victims, aged 14, 14 and 13 at the time of the offending. The offender was aged between 17 and 18.
[39][2019] VSCA 124 (‘Best’).
Charge 2 involved a victim who was 13 years of age. The offending comprised a course of conduct over 6 weeks, with about 30 separate acts of intercourse over that period and resulted in a pregnancy. The offender had been sentenced to 42 months’ imprisonment. That sentence was found to be manifestly excessive and he was resentenced on that charge to 2 years and 4 months’ imprisonment. On the resentence, the Court was influenced by a number of factors, including that there was no evidence of any degree of pressure, manipulation or predation involved in the offending conduct, he had made an early plea of guilty and he had no previous convictions. He was not given to the abuse of alcohol or illicit drugs. Apart from his offending, his lifestyle was otherwise entirely blameless, and he was vulnerable in prison and needed to be held in protection while in an adult prison.
Respondent’s submissions
The respondent submits that the judge properly took into account each of the factors on which the applicant relies and imposed a sentence that fell within the range reasonably open to her in the exercise of her discretion.
The respondent points to a number of features that made the sexual offending serious. They include: the disparity in age between the applicant and K, made more acute by their differing life experience; the fact that K had only recently moved into the area, making her additionally vulnerable; the fact that the applicant knew K’s true age before the third episode of offending, knew that it was her first sexual experience and knew that his conduct was unlawful; the risks created by his failing to use a condom; and the harm to K revealed by the VIS.
The respondent posited that no opportunity for a youth justice centre order had been lost. Given the objective seriousness of the two sets of offending, and the judge’s own conclusions, such a disposition was — and would have been seen to be — well outside the range of permissible sentencing options.
Decision
Some points of principle should be commented upon at the outset.
First, in order to succeed on his ground of appeal, the applicant must demonstrate that the sentences imposed on the sexual penetration charges and/or the total effective sentence were wholly outside the permissible range of sentences.[40] Manifest excess is a stringent ground, difficult to make good. It must be shown that something has gone obviously, plainly or badly wrong in the exercise of the sentencing discretion.[41]
[40]DPP v Karazisis (2010) 31 VR 634, 662–3 [127]–[128]; [2010] VSCA 350 (Ashley, Redlich and Weinberg JJA).
[41]Ayol v The Queen [2014] VSCA 151, [30] (Maxwell P); Clarkson v The Queen (2011) 32 VR 361, 384 [89]; [2011] VSCA 157 (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA) (‘Clarkson’); Young v The Queen [2016] VSCA 149, [128] (Ashley, Whelan and Kaye JJA).
Second, some general observations were made by this Court in Clarkson,[42] concerning the offence of sexual penetration of a child under the age of 16 years, which bear repeating. They commence with the cardinal principle that consent is not a defence to the offence of sexual penetration of a child under the age of 16:
The absolute prohibition on sexual activity with a child is founded on a presumption of harm. The prohibition is intended to protect children from the harm presumed to be caused by premature sexual activity, that is, activity before the age when a child can give meaningful consent. It is for this reason that a child’s consent is more accurately referred to as ‘apparent’ or ‘ostensible’ consent. References to consent in these reasons should be understood as having that connotation.
We have concluded that a child’s consent can never, of itself, be a mitigating factor. That is, proof that the child consented will not of itself differentiate the case for sentencing purposes from one where the child’s consent cannot be established. (Proven absence of consent, on the other hand, significantly increases the seriousness of the offending and the culpability of the offender.)
Proof that the child consented is the beginning, rather than the end, of the sentencing court’s inquiry. In assessing the gravity of the offence and the offender’s culpability, the court’s attention will be directed not at consent as such but at the circumstances in which the consent came to be given.
Typically, the giving of the consent will be a reflection of the relationship between the child and the offender. In very many cases, the consent will be seen to reflect a significant age difference and/or power imbalance between offender and victim. In such cases — for example, the consent given by a pupil to her teacher, or by a daughter to her mother’s partner — the circumstances will usually reveal the offender’s abuse of a position of trust or authority, rendering the offence more grave and his culpability greater.
At the other end of the scale, there are exceptional cases — for example, in a relationship between a 15 year old girl and an 18 year old boy — where the consent is, relatively speaking, freely given and genuine and a reflection of genuine affection between the two. In such circumstances, as the cases illustrate, the sentencing court is likely to view the offence as less grave and the offender’s culpability as reduced. In such a case, too, the offender may be able to establish, by appropriate evidence, that the victim is not likely to suffer the harm which the law presumes to flow from premature sexual activity.[43]
[42](2011) 32 VR 361; [2011] VSCA 157.
[43]Ibid 364–5 [3]–[7] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA) (citations omitted).
Third, as noted earlier, each of the charges of sexual penetration was described as a ‘composite charge’. In 2018, in Holland (a Pseudonym) v The Queen, this Court deprecated the use of that term:
… in argument the parties accepted that the expression ‘composite charge’ (an expression that is not defined in relevant authorities) was used as a synonym for ‘rolled up charge’. That is, the parties accepted that charge 1 was in fact a rolled up charge. In view of the potential for confusion to be caused by the use of the undefined term ‘composite charge’, we think it preferable that those responsible for the drafting of charges or indictments, in future, ensure that the more recognised and understood term ‘rolled up charge’ is used.[44]
[44][2018] VSCA 241 (Beach, Weinberg JJA and Champion AJA) (‘Holland’) (citations omitted).
Notwithstanding the warning given at that time about the potential for confusion, the same term was used by the prosecution in its opening in the present case in October 2019. As in Holland, the parties to this application accepted that, for sentencing purposes, a ‘composite charge’ was to be approached in exactly the same way as a ‘rolled up charge’. That is, the sentence to be imposed should take into account the criminality of all of the conduct covered by the composite charge.
Although it should not be necessary, we repeat the observation that the phrase ‘composite charge’ should not be used. To add a different term to the existing and well-understood lexicon of ‘representative’, ‘rolled up’ and ‘course of conduct’ charges is apt to confuse. Although each of charges 1 to 3 covered multiple acts of penetration, the applicant fell to be sentenced for a single offence for each charge. In this way, the use of a single charge to cover multiple offences operated to the advantage of the applicant.[45]
[45]DPP v Jones (a Pseudonym) (2013) 40 VR 267, 286–7 [80]; [2013] VSCA 330 (Redlich and Priest JJA); R v Jones [2004] VSCA 68, [12]–[13] (Charles JA).
That said, the Court must consider the whole of the circumstances in which each offence occurred, including the duration of the offending and the effect on K of multiple different forms of penetration in the course of each separate episode. Moreover, the structure of the indictment emphasised that the separate and discrete charges represented three different episodes that, as between themselves, were not part of a single transaction. As noted below, the intervals of time between the episodes gave the applicant both the time and the opportunity to reflect on his conduct, and its impact on K, and to desist.
Applying those principles to this case, a number of points emerge.
First, the gap of four years between the applicant and K was, in chronological terms, not large and the two were closer in age than is often seen for this type of offending. However, they were at very different stages in life. The applicant was substantially older and had been actively engaged in the adult world.
Although only 18, he had left home and was involved in the drug trade in Melbourne. His illegal activities in Melbourne were perhaps reflective of a lack of parental or familial support but he was plainly more worldly than K and had moved in the adult world for some time.
K was young, immature and in a vulnerable position. She was in an unfamiliar place and, as the judge said, she had been ‘parked’ at the applicant’s home by his sister ‘whose guest she was’.[46]
[46]Reasons [30].
As the judge noted, the offending was entirely one sided and engaged in solely for the applicant’s sexual gratification. The sexual activity was ‘not accompanied by any affection, romance or even a fleeting sense of love or engagement’.[47] K was left feeling — rightly — that she had been ‘used’.
[47]Ibid [33].
Second, the time between the different episodes of offending afforded an opportunity to the applicant to reflect on the conduct and desist. Indeed, in the present case, the agreed facts clearly showed that the applicant turned his mind to the position of K but persisted, entirely ignoring her welfare and interests. There was an appreciable gap between the first and second episodes, in circumstances where the applicant knew that the first episode involved unlawful conduct.
Perhaps even more seriously, after the second episode, the applicant became aware of the true age of K, turned his mind to the fact that sexual penetration was unlawful and again offended. This demonstrates a high degree of indifference to K’s interests and welfare. The applicant was plainly aware that his conduct was unlawful and reiterated to K that she should not tell anyone what had happened.
As the judge found, the offending had a serious impact on K. This is not a case where the judge was confined to a presumption of harm. The VIS established the deep and lasting harm which the applicant’s conduct has caused.
The real question is whether the sentence of 3 years and 6 months’ imprisonment on charge 3 was reasonably open, giving proper weight to the applicant’s age at the time of the offending, the ‘oppressive and punitive effect’ of the delay in bringing the charges to completion and the applicant’s demonstrated efforts towards rehabilitation. After careful reflection, we are satisfied that it was.
The applicant’s age was an important factor to take into account. In the context of the interaction between K and the applicant, the fact that the applicant was about four years older, and 18 years of age, was important in showing that he was in control of the situation and undertook the offending for his own gratification. Relative to K, he is entirely responsible for the offending. However, the relative position of the applicant and victim gives rise to a risk that his age as a young offender may be minimised when it comes to arriving at an appropriate sentence. It remains the case, and is an important factor to weigh, that for the purposes of sentencing, the applicant was a young offender. He was barely 18 at the time of the offending. For that reason, rehabilitation was a critically important factor.
Relatedly, the delay in bringing the charges was a matter of importance. The judge accepted that the delay was oppressive and punitive. During this period, the applicant attempted to take his own life. We do not, however, accept that the delay robbed him of an opportunity to be considered for a youth justice centre order. Given our conclusion that the judge was right to impose a significant term of imprisonment, the possibility of such a disposition was remote.
If a sentence involving confinement is justified in respect of a young offender,[48] s 32(1) of the Sentencing Act 1991 permits a court to make a youth justice centre order if it has received a pre-sentence report and it believes that there are reasonable prospects for the rehabilitation of the young offender or that the young offender is particularly impressionable, immature or likely to be subjected to undesirable influences in an adult prison. In determining whether to make such an order, the court must have regard to the nature of the offence and the age, character and past history of the young offender.[49]
[48]A ‘young offender’ is defined in s 3(1) of the Sentencing Act 1991 as an offender who is under the age of 21 years at the time of being sentenced.
[49]Sentencing Act 1991 s 32(2).
The maximum period for which the County Court may direct that a young offender be detained in a youth justice centre is 4 years.[50] That is so irrespective of the number of offences the young offender is convicted of in the same proceeding.[51] Given the nature of both sets of offences, the judge’s assessment of their gravity, and the applicant’s age, we think it extremely unlikely that he would have been found suitable for youth detention had there not been delay. We give this factor little weight.
[50]Ibid s 32(3)(b). The relevant maximum was 3 years at the time of the commission of the offences here.
[51]Ibid s 32(4).
Like the judge, we do not discount the serious impact the delay had on the applicant. And there was good reason for optimism about the applicant’s prospects of rehabilitation which, as noted earlier, the judge found were good.
We respectfully agree with what the judge said about the serious nature of the sexual offending. We have already noted the matters concerning the applicant’s knowledge of K’s age, his persistence and his indifference to K’s needs, which increased his culpability. In our respectful view, her Honour was quite right to place weight on denunciation and deterrence, both general and specific. As the Court pointed out in Clarkson, the prohibition on sexual activity with children under 16 is designed to protect young people from sexual encounters for which they are not ready and to which they cannot give meaningful consent. It is also designed to deter those who might be inclined to engage in such activity.[52]
[52](2011) 32 VR 361, 368 [26]–[27]; [2011] VSCA 157 (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA).
In the present case, striking the balance between ensuring an adequate sentence to punish serious unlawful conduct and giving proper weight to the factors that served to moderate the sentence was a difficult task. The judge’s careful reasons show she took into account every matter that was urged in favour of the applicant and attached weight to them. There is nothing in the reasons to suggest that the weight she gave to these factors was cursory or inadequate.
In arriving at the conclusion that the sentence on charge 3 was within range, we have not found the decision of this Court in Best to be of much assistance. The facts in Best were different. In some ways, the offending was worse — it extended over a period of time and resulted in a pregnancy — but the position of the offenders is so markedly different as to preclude any meaningful comparison.
Consideration of current sentencing practices is both necessary and appropriate in the interests of consistency of sentencing. But it is simply not possible to derive any meaningful guidance from a single decision which necessarily turned on its own facts. Further, a single decision can give little indication of the bandwidth of the sentencing discretion. That point is illustrated by the decision in Gadd v The Queen, on which the respondent relied.[53]
[53][2012] VSCA 267.
Once it is accepted — as we consider it must be — that the sentence on charge 3 was within range, the application must fail. The individual sentences imposed on charges 1 and 2 and the relatively modest degree of cumulation do not reveal error. As noted, each of the three episodes involved separate criminality that needed to be reflected in the sentence.
As well, the drug offending was entirely unrelated. It extended over a period of time, involved multiple transactions and different drugs. No complaint was or could be made about the sentence imposed. The degree of cumulation was appropriate. Standing back and considering the total effective sentence, we are unable to conclude that the principle of totality has been compromised.
Notwithstanding that a sentence of 5 years’ imprisonment is a heavy one for a young man with no prior convictions, as the judge noted, the applicant entered ‘the adult criminal justice system with very serious offending in two quite separate and discrete areas of serious criminal activity.’[54]
[54]Reasons [28].
The application for leave to appeal must be refused.
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