Stafford v The King
[2022] VSCA 229
•20 October 2022
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2021 0176 |
| MICHAEL STAFFORD | Appellant |
| v | |
| THE KING | Respondent |
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| JUDGES: | PRIEST AP and NIALL JA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 18 October 2022 |
| DATE OF JUDGMENT: | 20 October 2022 |
| MEDIUM NEUTRAL CITATION: | [2022] VSCA 229 |
| JUDGMENT APPEALED FROM: | DPP v Stafford (Unreported, County Court of Victoria, Judge Gamble, 2 September 2021) |
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CRIMINAL LAW – Appeal – Sentence – Appellant pleaded guilty to one charge of rape by compelling sexual penetration and found guilty of one charge of attempted rape and one charge of rape – Whether sentence manifestly excessive – Where inordinate delay – Appeal allowed.
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| Counsel | |||
| Appellant: | Mr C Wareham | ||
| Respondent: | Mr J McWilliams | ||
Solicitors | |||
| Appellant: | Anthony Isaacs Criminal Lawyers | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
PRIEST AP
NIALL JA:
On 8 July 2022, Niall JA gave leave to the appellant to appeal against his sentence on the ground that the total effective sentence and its individual components are manifestly excessive. A description of the facts and a summary of reasons for sentence were set out in the reasons for giving leave and the following is a recapitulation of those matters.
On 14 July 2021, after a seven day trial, the appellant was found guilty of one charge of attempted rape and one charge of rape. The appellant also pleaded guilty to one charge of rape by compelling sexual penetration. The appellant’s offending related to two victims and occurred at different times.
On 2 September 2021, the judge sentenced the appellant as follows:
| Charge on Indictment J12695609 | Offence | Max Penalty | Sentence | Cumulation |
| 1 | Rape by compelling sexual penetration | 25 years | 5 years | 2 years |
| Charge on Indictment J12695609.A | Offence | Max Penalty | Sentence | Cumulation |
| 3 | Attempted rape | 20 years | 4 years | 12 months |
| 4 | Rape | 25 years | 6 years | Base |
| Total Effective Sentence: | 9 years | |||
| Non-Parole Period: | 6 years | |||
| Pre-sentence Detention Declared: | 50 days | |||
| Section 6AAA Statement to charge 1 on indictment J12695609: | Total Effective Sentence for that offence: 7 years 6 months | |||
| Other Relevant Orders: 1. Sentenced as a serious sexual offender on charge 4 on indictment J12695609.A | ||||
The appellant appeals against his sentence on the following ground of appeal:
In all the circumstances, when regard is had to:
(a)the appellant’s plea of guilty on charge 1 (rape by compelling sexual penetration);
(b)the perceptible discount to be afforded to pleas of guilty during the COVID-19 pandemic;
(c)the delay;
(d)the appellant’s personal circumstances;
(e)the appellant’s limited criminal history; and
(f)the additional burden of custody
the individual sentences and orders for cumulation are productive of a total effective sentence and non-parole period that is manifestly excessive.
Circumstances of offending
Charge 1
On 10 February 2017, the appellant and a former work colleague, JP, spent the night drinking with other friends at a number of Melbourne bars. The two returned to the appellant’s apartment sometime after 11.00 pm. JP fell asleep fully clothed on a couch in the lounge room. He woke at approximately 7.00 am on 11 February to discover he was in a partly dressed state in the appellant’s bed. The appellant had undone JP’s belt, the button and zip of his shorts and had pulled his underwear down. JP then became aware that the appellant was crouched at the foot of the bed performing oral sex on him while stroking his penis[1] (charge 1 of indictment number J12695609 – rape by compelling sexual penetration).
[1]DPP v Stafford (Unreported, County Court of Victoria, Judge Gamble, 2 September 2021), [9] (‘Reasons’).
JP initially pretended to be asleep. After approximately five minutes, he tried to bring the incident to an end by rolling away from the appellant. The appellant placed his arm over JP’s waist to hold him down. JP pretended to cough and started to get out of bed. The appellant grabbed JP’s right shoulder, he brushed the appellant off, got dressed and left the bedroom. After collecting his belongings, JP left the apartment and immediately reported the matter to police.[2]
Charges 3 and 4
[2]Ibid [10].
On 28 May 2017, the appellant met CT at a nightclub in Fitzroy. During the evening, CT drank alcohol and became ‘pretty drunk’.[3] While CT was dancing with a friend on the dancefloor, the appellant approached him and started complimenting him on his looks. CT told the appellant that he was happy to take a compliment but was not interested in engaging in heavy flirting. The appellant kept trying to get close to CT and placed his hands around CT’s waist. When the appellant began to speak more graphically and imply a sexual liaison, CT said the appellant was nice and he was happy to dance, but he had a boyfriend and did not want to do that.
[3]Ibid [17].
The appellant then left the dancefloor but returned 30 minutes later, at which time he apologised to CT and offered to buy him a drink to which CT agreed. After buying the drinks, the appellant handed CT two vodka lemonades and suggested going to the quieter outdoor smokers’ area. CT later said that the appellant did not appear sober and was not acting like a sober person.
While in the smokers’ area, the appellant grabbed CT’s hand and moved it towards his crotch. The appellant asked CT how he felt and he responded by making a flattering comment. CT then said he did not want to do this and reminded the appellant that he had a boyfriend.
After some small talk, the appellant then tried to put CT’s hand down his pants. CT ‘froze up’ and did not say or do anything initially.[4] Eventually, he moved his body and removed the appellant’s hand. CT then told the appellant he had to go. The appellant asked CT if he could come back to his place, but CT declined.
[4]Ibid [20].
CT re-joined his friend in the pool area. A short time later, the appellant approached and sexually propositioned him in a persistent manner. CT tried to ignore the appellant and otherwise made it clear that he did not want to engage in any sexual activity. For example, when the appellant suggested ‘fooling around’ in the toilets, CT replied ‘I shouldn’t. I can’t. I don’t want to. I just need to use the toilet.’[5] While standing in the queue for the toilet, the appellant indicated he wanted to show CT his penis, to which CT replied, ‘No, I don’t wanna see, I don’t want to. It was nice to meet you, but I don’t wanna do that. I just need to go to the toilet.’[6]
[5]Ibid [21].
[6]Ibid.
Once a cubicle became free, CT commenced to walk towards it, but before he could get inside and close the door, the appellant grabbed him by the arm, pulled him inside and locked the door. The appellant pushed CT to the far side of the cubicle, standing between him and the door. The appellant then started to force himself on CT. The appellant grabbed CT’s neck and forced an open mouthed kiss on him. After undoing CT’s pants, the appellant touched CT’s penis and tried to get CT to touch his. The appellant then made an unsuccessful attempt to penetrate CT’s anus with his penis by repeatedly thrusting his penis against CT’s anus (charge 3 of indictment J12695609.A – attempted rape). Eventually, the appellant used his fingers instead. CT described the appellant’s fingernail jutting the inside of his anus and repeatedly causing him pain (charge 4 of indictment J12695609.A – rape).[7]
[7]Ibid [22]–[23].
CT explained to the jury that during the offending he simply ‘froze up’ and ‘didn’t really say anything’.[8] CT located his friend and told his friend that he had been raped. CT decided to catch an Uber home. Upon speaking to his boyfriend, he re-directed the Uber to the nearest police station and made a complaint. As CT had been drinking, a statement was not taken from him until 17 July 2017.
[8]Ibid [24].
Reasons for sentence
After outlining the circumstances of the offending, the judge referred to the appellant’s prior criminal record, which the judge said was very limited and largely inconsequential.[9] A subsequent conviction for a single charge of possession of cannabis was ‘of little moment.’[10]
[9]Ibid [34].
[10]Ibid [38].
The judge then turned to the appellant’s personal circumstances. The appellant grew up in a generally stable home, but did have difficulties in relation to one of his uncles who mistreated him on a number of occasions. The appellant left school part-way through year 9 after being subjected to bullying. The appellant had maintained good employment, working as an executive chef for the seven years prior to his trial commencing.
The judge referred to a report prepared by Pamela Matthews, forensic psychologist, that had been tendered on the plea. The report relevantly noted that the appellant presented with symptoms of Borderline Personality Disorder (‘BPD’) and Alcohol Use Disorder. Ms Matthews opined that the appellant’s BPD ‘related directly to his offending’ as he lacks the ability to ‘read social cues and make reasonable decisions about the risks attached to engaging in sex with a friend he valued or with a stranger’. Ms Matthews also noted that the appellant presented as depressed, with low mood, suicidal ideation and feelings of worthlessness. She found that the appellant met the criteria for Major Depressive Disorder. She assessed the appellant’s risk of re-offending to be above average, though noted that would lessen over five to ten years.
The judge went on to describe the appellant’s longstanding problem with alcohol and his use of various drugs over the years.[11]
[11]Ibid [48]–[49].
Turning to matters in mitigation, the judge noted that there was an early plea of guilty in relation to the offending involving JP and that that plea had increased utilitarian value as it was entered during the COVID-19 pandemic.[12] The judge stated, ‘I consider it appropriate to accord you a very significant sentencing discount for pleading as you have to the charge of rape by compelling sexual penetration’.[13] The judge contrasted this with the offences of rape and attempted rape. The judge also took into account the inordinate delay; the onerous nature of custody during COVID-19; and that the appellant will find custody more onerous than many other prisoners, particularly given his concerns that other prisoners might find out about his bisexuality.
[12]Ibid [60]–[62].
[13]Ibid [63].
The judge found, in light of Ms Matthews’ report, that limbs 5 and 6 of R v Verdins were engaged.[14]
[14](2007) 16 VR 269; [2007] VSCA 102.
In assessing the gravity of the offending, the judge noted that the offending against both complainants were serious examples of their type and as falling in the ‘mid-range of seriousness’.[15] In relation to the offending against JP, the judge noted that the appellant took cruel advantage of the complainant’s friendship and vulnerability. The judge found the appellant had ‘somewhat guarded prospects of rehabilitation.’[16]
[15]Reasons, [77] and [79]. .
[16]Ibid [84].
Parties’ contentions
In contending that the individual sentences and orders for cumulation are manifestly excessive, the appellant submits that the judge failed to have proper regard to his plea of guilty on charge 1 (rape by compelling sexual penetration); that it was an early plea; the additional utilitarian value of the plea given the COVID-19 pandemic; the delay, noting that over four and a half years had elapsed between the offending and when the appellant fell to be sentenced; the personal circumstances of the appellant; his limited criminal history; and the additional burden of custody on the appellant.
The appellant accepts that the judge made findings in relation to the appellant’s struggles with drug addiction, health and mental health history and diagnoses of BPD, Alcohol Use Disorder and Major Depressive Disorder, but submits that his Honour gave them insufficient weight when arriving at the total effective sentence and non-parole period.
The appellant submits that there are several factors that will make the appellant’s period of custody more burdensome, including that it is his first time in custody, the consequences of the COVID-19 pandemic for those in custody, his mental health difficulties, and that the appellant’s case appeared in the media, risking other prisoners finding out about the appellant’s bisexuality.
The respondent submits that an extension of time should be refused as the proposed ground of appeal is without merit. The respondent notes that the appellant ran a trial in relation to the rape and attempted rape charges, that he fell to be sentenced as a serious sexual offender in relation to the rape charge, and that the judge found the offending to be serious examples of the relevant offences.
The respondent also submits that the judge gave full weight to all matters in mitigation advanced by the appellant and that the judge gave a relatively low non-parole period, with the intention of giving emphasis to the matters in mitigation and the appellant’s rehabilitation.
Consideration
Plainly enough, there were some very different sentencing considerations that were relevant to the two incidents. Charge 1 involved an early plea of guilty, and the judge accepted that it was accompanied by a degree of remorse.[17] The sentence on charges 3 and 4 followed a trial.
[17]Ibid [61].
Common to all of the matters, and a factor of some significance, was the delay associated with the finalisation of the charges. The judge, correctly in our view, described the delay as inordinate and not attributable to the appellant. It is worth repeating what the judge said on this topic:
It was common ground at the plea hearing that this case has been the subject of an inordinate delay, particularly between the dates of your offending and the date on which you were charged. That delay was between 17 and 20 months depending on the complainant being considered. The delay between being charged and your trial commencing was approximately 31 months. More than a year of that delay was attributable to the fact that your trial could not be heard on its original listing date due to the suspension of all jury trials in March 2020. In all, you have had to wait for a period of over four years to be sentenced for offences that occurred in the early to mid-part of 2017. In respect of one of those offences, you pleaded guilty at an early stage. None of that delay has been attributable to you in any way and but for a minor drug possession offence, you have remained out of further trouble in the intervening period. I therefore consider it appropriate to take that delay into account in your favour when determining the appropriate sentences to impose in this case. You have had the spectre of sentencing for the offence against the first complainant hanging over your head for a considerable period notwithstanding your preparedness to plead guilty early. In addition, you have faced an uncertain fate with regard to the outcome of your trial, both in respect to any verdicts as well as any sentence in the event of being found guilty. I accept that all of this delay has caused you additional anxiety.[18]
[18]Ibid [65].
In our view, the delay imposed a heavy burden on all of the parties involved including the appellant. Having indicated that he would plead guilty to charge 1, the appellant had to wait just under two and half years before he was sentenced. He was very likely to have appreciated that he would be imprisoned but with an uncertain outcome. Having a sentence hanging over his head for that period would have weighed heavily. Similarly, an unresolved plea of not guilty over an extended period over and above that which might reasonably be required to bring a matter to trial is a burden that must be acknowledged and taken into account by a sentencing judge as appropriate. In this respect it is noted that the appellant faced an indictment with four charges, two of which were taken away from the jury, and the burden of a delay in trial is not to be ignored merely because the accused person is ultimately found guilty. In this case, the judge took delay into account.
It is convenient to turn to the sentence imposed on the plea of guilty to charge 1.
Although charge 1 had a number of different features when compared to those that accompanied charges 3 and 4, the judge found that it was a serious example of an ‘intrinsically serious’ offence. That was because the judge considered that the appellant had taken cruel advantage of the complainant’s friendship and vulnerability whilst ostensibly giving him a place to stay for the night. The judge noted that the appellant’s motivation was his own sexual gratification, and that it involved a significant sense of betrayal and loss of trust.
Although we are satisfied that the judge’s assessment of the objective gravity of charge 1 was open to him, it was nevertheless a stern assessment. Given that the judge said that he would give a ‘very significant sentencing discount’ for pleading guilty, the finding that the appellant’s time in prison would be more onerous because of his depression, the multiple impacts of the pandemic in terms of delay in the court system, the deleterious impact the pandemic has had on the conditions in prison, and the other matters in mitigation, it is plain that the judge regarded the offending as being serious given the number of matters in mitigation even before taking into account the inordinate delay.
The two charges for which the appellant was found guilty by the jury were also regarded by the judge as serious examples of their kind. Indeed, as the respondent submitted in oral submissions, it is plain that in terms of objective gravity the judge regarded charge 1 and charge 4 as being comparable. It must be accepted that the digital penetration that founded the charge of rape was brutish and appalling. The victim was confined in a cubicle and the appellant physically forced himself upon him, first trying to kiss him, then attempting penile anal intercourse and finally inserting his finger into the victim’s anus.
Although the attempted rape, were it viewed alone, was serious, it was very closely connected in time and circumstance to the conduct that gave rise to charge 4. A high degree of concurrency was called for.
With the exception of the plea of guilty, and the associated finding of some remorse, the factors in mitigation were similar across all of the charges. As he judge noted, the appellant fell to be sentenced as a serious sexual offender for charge 4. Although there was no suggestion of a disproportionate sentence being warranted, the court was required to regard the protection of the community from the offender as the principal purpose for which the sentence is imposed. Given the relatively favourable finding on rehabilitation, as being reasonable but somewhat guarded and dependent on the appellant addressing alcohol abuse and a history of drug taking in the context of an underlying personality disorder, the serious sex offender provisions did not have much if any work to do in relation to charge 4 that was not already accommodated by other sentencing principles.
In our opinion, once all of the factors are taken into account, and proper allowance is made for the impact of the delay in this case, we are persuaded that the sentence of five years’ imprisonment on charge 1 is manifestly excessive. That finding is sufficient to vitiate the sentence and require us to resentence the appellant. We would add that in relation to the sentences imposed on charges 3 and 4 we are also persuaded that at the least the effective sentence of seven years’ imprisonment to serve in relation to the second incident was also manifestly excessive.
In the result the sentence must be set aside.
On the hearing of the appeal, Counsel for the appellant informed the Court of his instructions that the appellant had recently been assaulted in prison. As the Court indicated on the hearing, in the event that it came to resentence it would only act on new material that was adduced in proper form. No material was adduced.
In our view, the inordinate delay that was associated with all of the charges was a very significant factor in sentencing. Accepting the judge’s assessment that charge 1 was a serious example, in our view, the delay warranted a significant reduction in sentence. As well, the proper application of sentencing principles justifies giving great weight to the plea of guilty both for its evidence of remorse and significant utilitarian value. The net effect is to warrant a sentence on charge 1 that is significantly lower than might be appropriate in other cases that do not have these aspects.
The delay is also a factor that must be weighted in relation to charges 3 and 4.
In the result, we would resentence the appellant as follows:
| Charge on Indictment J12695609 | Offence | Max Penalty | Sentence | Cumulation |
| 1 | Rape by compelling sexual penetration | 25 years | 3 years and 6 months | 1 year |
| Charge on Indictment J12695609.A | Offence | Max Penalty | Sentence | Cumulation |
| 3 | Attempted rape | 20 years | 3 years | 6 months |
| 4 | Rape | 25 years | 5 years | Base |
| Total Effective Sentence: | 6 years and 6 months | |||
| Non-Parole Period: | 4 years | |||
We declare, pursuant to section 6AAA of the Sentencing Act 1991 that, had the appellant not pleaded guilty to charge 1, we would have imposed a term of imprisonment of five years for that offence. We will also make a declaration as to pre-sentence detention. We note the appellant has been sentenced by this Court as a serious sexual offender on charge 4.
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