Stamper (a pseudonym) v The Queen
[2021] VSCA 323
•24 November 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2021 0093
| REED STAMPER (a pseudonym)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]To ensure that there is no possibility of identification of the victim of the sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the applicant’s name.
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| JUDGE: | McLEISH JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | On the papers |
| DATE OF JUDGMENT: | 24 November 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 323 |
| JUDGMENT APPEALED FROM: | [2021] VCC 770 (Judge Higham) |
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CRIMINAL LAW – Leave to appeal – Sentence – Two charges of rape – One charge of kidnapping – One charge of making threat to kill – Two charges of theft – One charge of making a threat to inflict a serious injury – Related summary offence – Whether judge failed to adequately account for principle of commonality – Whether orders for cumulation on kidnapping charge and second rape charge manifestly excessive – Leave to appeal refused.
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| Written Submissions: | Counsel | Solicitors |
| For the Applicant | Mr M Reardon | Victoria Legal Aid |
| For the Respondent | Mr J McWilliams | Ms A Hogan, Solicitor for Public Prosecutions |
McLEISH JA:
On 9 April 2021, the applicant pleaded guilty, before a judge of the County Court, to:
(a) two charges of rape;[2]
[2]Crimes Act 1958 s 38(1).
(b) one charge of kidnapping;[3]
[3]Contrary to the common law.
(c) one charge of making a threat to kill;[4]
[4]Crimes Act s 20.
(d) two charges of theft;[5]
(e) one charge of making a threat to inflict a serious injury;[6] and
(f) three related summary offences.[7]
[5]Ibid s 74(1).
[6]Ibid s 21.
[7]Unlawful assault with a weapon (Summary Offences Act 1966 s 23), driving while authorisation suspended (Road Safety Act 1986 s 30(1)) and using an unregistered motor vehicle on a highway (Road Safety Act s 7(1)).
On 11 June 2021, the judge sentenced him as follows:[8]
[8]DPP v Stamper (a pseudonym) [2021] VCC 770 (‘Sentencing Remarks’).
Charge on indictment K12145428.1
Offence
Maximum
Sentence
Cumulation
1
Kidnapping
25 years
2 years and 9 months
1 year and 2 months
2
Making a threat to kill
10 years
1 years and 4 months
Nil
3
Making a threat to inflict a serious injury
5 years
9 months
Nil
4
Theft
10 years
2 months
Nil
5
Rape
25 years
6 years and 3 months
Base
6
Rape
25 years
6 years and 2 months
2 years and 3 months
7
Theft
10 years
1 month
Nil
Related summary offences
Charge 7
Unlawful assault with a weapon
2 years
3 months
Nil
Charge 10
Driving while authorisation suspended
2 years
1 month
Nil
Charge 11
Using an unregistered motor vehicle on a highway
25 penalty units
Convicted and discharged
–
Total effective sentence:
9 years and 8 months
Non-parole period:
6 years
Pre-sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991:
309 days
6AAA statement:
12 years and 10 months’ imprisonment with a non-parole period of 9 years and 8 months
Other relevant orders:
Sentenced as a serious sexual offender on charge 6.
The applicant applies for leave to appeal his sentence on two proposed grounds: first, that the judge erred in failing to accord any, or sufficient, weight to the ‘principle of commonality’; and secondly, that the orders for cumulation on charges 1 and 6 were manifestly excessive.
For the reasons that follow, leave to appeal will be refused.
Circumstances of offending
At the time of the offending, the applicant was 25 years old and a regular user of methylamphetamine.
In June 2019, the applicant commenced a relationship with SG, whom he had met during secondary school. At the time, she resided at a youth mental health residential support facility where she was receiving treatment related to, among other things, trauma associated with sexual assault. The relationship was initially positive, but soon deteriorated. The applicant became aggressive and controlling.
After attempting to terminate the relationship, SG blocked the applicant’s phone number. This did not prevent him from leaving voice messages on her phone. Some of these messages were threatening, others pleading.
On 12 August 2019, the applicant drove to the facility, as he had earlier threatened to do. He sent SG text messages saying that he would not leave unless SG came out to meet him.
SG came outside. The applicant asked her to come and stay with him for one more night. She refused. The applicant told her to get into his car. She again refused. The applicant then grabbed SG and threw her into the side of the car, opened the passenger door, and threw her into the passenger seat, shutting the door behind her. He told her that if she tried to get out of the car, she would be ‘dead’.
Once in the car, the applicant produced a screwdriver, which he held to SG’s head. He repeated that if she tried to leave, she would be ‘dead’ (charge 2 — making a threat to kill; summary charge 7 — unlawful assault with a weapon ). He locked the car doors, and took SG’s phone from her.
The applicant first drove toward the city (summary charge 10 — driving while suspended; summary charge 11 — using an unregistered motor vehicle). He then drove to Glenthompson, which ultimately took around four hours (charge 1 — kidnapping).
During the journey, the applicant made further threats, saying, for example, that SG had the choice of a bullet in the head or a ‘body bag’, and that, because he had nothing to live for, she wouldn’t live either (charge 2 — making a threat to kill). He also threatened to, among other things, ‘beat the truth out of her’, cut off her tongue, break her legs, slit her throat, and inflict water torture (charge 3 — making a threat to inflict serious injury). The victim believed that the applicant would kill her.
Along the way, the applicant stopped for petrol. After the car was filled, he drove away without paying (charge 4 — theft).
After they arrived at the destination, the applicant took SG took to an uninhabited house which he said belonged to his mother. He started kissing SG, and put his hands down her pants. He inserted his fingers into her vagina. She tried to push him away, but he continued to digitally penetrate her. He then pulled down SG’s pants and penetrated her vagina with his penis until he ejaculated. The applicant did not use a condom. The penetration lasted about ten minutes. This conduct constituted charge 5 — rape, which was a rolled-up charge.
The next day, the applicant took SG to visit a friend, after which they returned to the house. He told SG they would spend the night there, although they would sleep in the car, which was warmer than the house. In the car, he started to cuddle and kiss SG. She did not reciprocate. He grabbed her by the throat and pulled her pants down. He penetrated her vagina with his penis for some fifteen minutes until he ejaculated, again without using a condom (charge 6 — rape).
Afterwards, the applicant became aware that SG’s family was looking for her. He discussed returning her to the facility. He made her promise that she would not tell anyone what he had done or go to the police, and threatened to torture her if she did.
He then drove SG to his father’s house. On the way, he again stopped for petrol, and again failed to pay (charge 7 — theft). Later, he gave SG back her phone and took her to a bus stop, from which a friend picked her up and drove her back to the facility. SG reported the offending to her friend, and then to the facility manager, who called police.
Judge’s sentencing remarks
After setting out the circumstances of the offending, the judge described its ‘lasting and traumatic’ impact upon SG, which led to suicidal ideation, depression, anxiety, psychosis, alcohol dependence, and complex post-traumatic stress disorder.[9]
[9]Ibid [14].
The judge described the applicant’s childhood as ‘happy and unremarkable’, in a loving, caring and law-abiding family environment. The applicant completed the equivalent of year 11, then an apprenticeship in marine motor mechanics. He worked in that field before losing his job because of his increasing drug use.[10]
[10]Ibid [17]–[18].
The judge referred to reports prepared by Mr Jeffrey Cummins, a clinical psychologist, and Professor Michael Daffern, a consultant psychologist. Both reports highlighted the applicant’s heavy methylamphetamine use, commencing in 2017, as a significant factor in his offending. That drug use led to paranoia, anger and irritability, and some auditory and visual hallucinations. It also damaged the applicant’s relationship with his family.[11]
[11]Ibid [22].
Professor Daffern described the applicant’s sexual offending as occurring in a context of ‘methamphetamine dependence, associated personal and social decline, and distress and anger’ associated with the breakdown of his relationship with SG. Professor Daffern found that the applicant had no intellectual disability or personality disorder, or any associated traits.[12]
[12]Ibid [21], [26].
Professor Daffern’s report, in particular, indicated the applicant’s insight into the impact of methylamphetamine use on his life, and his remorse and awareness of the impact on his victim. Professor Daffern estimated the applicant’s level of risk for future sexual offending to be low to moderate, but increasing if he returned to drug use or experienced another deterioration in an intimate relationship.[13]
[13]Ibid [25], [27].
The judge described the applicant’s offending as ‘most serious’,[14] driven by a ‘monstrous sense of entitlement and affront’ and a desire to show SG ‘who was boss’[15]. He referred to it as a serious example of family violence, involving the rape and kidnapping of an intimate partner in a ‘terrifying ordeal which lasted for nearly 40 hours’.[16] He referred to the particular vulnerability of SG who, as the applicant knew, had suffered past traumatic sexual assault.[17]
[14]Ibid [41].
[15]Ibid [33].
[16]Ibid [34], [37].
[17]Ibid [36].
The judge referred to six matters in mitigation, namely the applicant’s:[18]
[18]Ibid [40].
(g) guilty plea, and its enhanced value during the present pandemic;
(h) relative youth;
(i) developing insight into his offending, and its impact;
(j) developing remorse;
(k) low to moderate risk of reoffending; and
(l) reasonable prospects of rehabilitation, assuming he can remain drug free.
The judge considered that the principles of general and specific deterrence, denunciation, community protection and just punishment assumed prominence in the sentencing exercise. He recorded the applicant’s concession that the offending required a ‘substantial and significant’ term of imprisonment.[19]
[19]Ibid [39], [41].
In the applicant’s favour, the judge considered that on each of the two rape charges, a sentence falling well below the 10 year standard sentence would adequately meet the relevant sentencing purposes. He sentenced the applicant as a serious sexual offender on charge 6. He observed that he had moderated the orders for cumulation that he would otherwise have made.[20]
[20]Ibid [41].
Proposed grounds of appeal
The proposed grounds of appeal are:
1. The judge erred by failing to accord any, or sufficient, weight to the principle of recognising commonality between charges;
2. The orders for cumulation on charges 1 and 6 were manifestly excessive.
Parties’ submissions
The applicant submitted that, while the context of the kidnapping and threats heightened the gravity of the rape charges, particular care was required to avoid doubly punishing the applicant for overlapping conduct. In particular, it was said that the judge had failed to account for the overlap between the offending the subject of charges 1, 2, 3 and 5, and the offending the subject of charge 6. Although charge 6, the second rape, occurred the day after the first rape, it was said that there was still a significant ‘overlap in the nature and circumstances’ of that offending.
It was submitted that it could be seen that the judge failed to account for that overlap from his failure to refer to it in the sentencing remarks. It was said that the judge had thereby fallen into the error identified in this Court’s decision in Zhao v The Queen.[21] In that case, the Court considered that the sentencing judge had failed to adequately apply the principle of totality and the ‘one episode principle’ in respect of a second set of offending comprising five charges (four charges of rape, and one charge of sexual assault) which formed part of an episode occurring on a single night.
[21][2018] VSCA 267 (‘Zhao’).
In relation to the manifest excess ground, the applicant concentrated on the orders for cumulation on charges 1 and 6. The cumulation on charge 1 represented 42 per cent of that sentence. The cumulation on charge 6 represented 36 per cent of that sentence. This was said to be an ‘[un]usually high degree of cumulation’, which indicated that the judge had insufficiently weighed the facts that: (a) charge 1 and charge 5 formed part of a single course of conduct; and (b) charge 6 was closely related in ‘time, nature and circumstances’ to those charges. The effect of the orders for cumulation was said to be a total effective sentence that was excessive in all the circumstances, including the mitigatory factors in the applicant’s favour.
The applicant made references to comparable sentences said to suggest the available range which the orders for cumulation transgressed. The applicant pointed to Zhao, as well as two further cases involving multiple rapes of a single victim.[22] In none of those case did the cumulation on any charge exceed one year.
[22]DPP v Drake [2019] VSCA 293 (‘Drake’); Lockyer (a pseudonym) v The Queen [2020] VSCA 321 (‘Lockyer’).
The respondent contended that the judge made clear that he was aware of the principle of totality, and avoided double punishment while appropriately recognising the distinct and additional criminality represented by the individual offences. In respect of the rape charges, double punishment was avoided also by the fact that two instances of rape committed in the same episode were ‘rolled-up’ in charge 5. The respondent submitted that the overlap between the two rape charges asserted by the applicant was unclear and not established. Charge 6 occurred the next day and after a break in the applicant’s offending, and was a distinct episode, separated from the earlier offending by both time and location.
The respondent also submitted that the break in the applicant’s offending between charges 5 and 6 distinguished this case from Zhao, where the second set of sexual offences was committed on a single night and, in some cases, mere ‘seconds’ apart. In any event, the ‘one-episode principle’ described in Zhao was no more than a ‘guideline’ which does not prevent some level of cumulation even in cases of multiple charges of sexual offending closely associated in time and involving the same victim.[23]
[23]Flynn (a pseudonym) v The Queen [2020] VSCA 173 (‘Flynn’).
On the manifest excess argument, the respondent contended that the orders for cumulation were well within range. Charge 6 (rape) was a standard sentence offence. There was a presumption of cumulation because the applicant fell to be sentenced as a serious sexual offender. The order for cumulation represented less than a quarter of the standard sentence, an arguably ‘merciful’ outcome in the circumstances. Charge 1 (kidnapping) was a serious example of a serious offence, involving violence against a particularly vulnerable victim. The sentence and cumulation ordered on that charge were said to be plainly within range, the sentence being significantly less than those imposed in comparable cases.[24]
[24]Ah-Kau v The Queen [2018] VSCA 296; Huynh v The Queen [2020] VSCA 222; Roe v The Queen [2021] VSCA 54.
Consideration
It is convenient to consider both proposed grounds together. The applicant’s argument under the first proposed ground is, in effect, that despite referring in general terms to the principle of totality, the judge failed to recognise the extent of the ‘overlapping conduct between charges’ and thereby imposed double punishment. In that context, it is said to be relevant that the applicant fell to be sentenced on charge 6 as a serious sexual offender only because he was convicted of a sexual offence (charge 5) and at least one violent offence (charges 1-3) ‘arising out of the one course of conduct’: Sentencing Act 1991 s 6B(2), para (b) of the definition of ‘serious sexual offender’. The manifest excess ground overlaps with this argument by focusing on the cumulation ordered in respect of the kidnapping and the second rape.
In my opinion, the judge appropriately recognised that the kidnapping involved discrete and significant criminal activity. That called for a degree of cumulation.
Comparison of the level of cumulation ordered in different cases, by itself, is a meaningless exercise. The question of cumulation is necessarily informed by the principle of totality, which in turn means that regard must be had both to the whole of the offending and to the individual sentences imposed.[25] The cumulation of 1 year and 2 months on the kidnapping charge therefore cannot be viewed in isolation from the underlying sentences. The cases identified by the respondent confirm that the sentence on the kidnapping charge was not high.[26] There is also no reason to think that the judge treated the context in which the rapes occurred, in which the applicant had kidnapped SG before raping her, as aggravating the rapes, while punishing the applicant a second time for the kidnapping. In that regard, the sentences imposed on the rape charges are moderate, especially when regard is had to the standard sentence of 10 years. In the light of the modest sentences imposed, it cannot be said that the cumulation on the kidnapping charge was excessive or that it involved double punishment.
[25]Hazell v The Queen [2021] VSCA 313, [36] (Priest and Beach JJA); Mill v The Queen (1988) 166 CLR 59, 62-3 (Wilson, Deane, Dawson, Toohey and Gaudron JJ).
[26]See n 24 above.
The cumulation of 2 years and 3 months on the second rape charge is also moderate, having regard to the moderate underlying sentences, the fact that the second rape was separated in time (by a day) and in location from the first, and the fact that the applicant was sentenced as a serious sexual offender on charge 6, attracting a presumption of cumulation under s 6E of the Sentencing Act.
Unlike the second set of offences in Zhao, the two closely connected rapes in Lockyer or the single, albeit drawn-out episode in Drake, the three offences which contributed to the total effective sentence in the present case, while connected by a course of conduct over some 40 hours and in multiple locations, were not properly to be viewed as part of a single episode.[27]
[27]Cf Zhao [2018] VSCA 267, [83], [89]–[100] (McLeish, Niall and Weinberg JJA).
In that respect, the present case is also readily contrasted with the ‘single episode’ offences in Flynn — two charges of rape against the same victim seconds apart. The sentences imposed on the applicant are consistent with the principles explained by the Court in that case in the following passage:
[T]he two acts of rape of which the applicant was convicted both took place within literally moments of each other. It is reasonable to infer, and there is no reason not to do so, that the time that elapsed between them was a matter of perhaps seconds.
In the past, there would have been applied to a case of this kind what has sometimes been called the ‘one transaction rule’. That rule, as stated by Professor D A Thomas in his classic work Principles of Sentencing, can be formulated simply. Where two or more offences are committed in the course of a single transaction, all sentences in respect of these offences should be concurrent, rather than consecutive. The essence of the rule appears to have been that cumulative sentences are inappropriate when all the offences, taken together, constitute a single invasion of the same legally protected interest.
That one transaction rule was regularly applied, in the past, to cover a sequence of offences involving a repetition of, essentially, the same behaviour towards the same victim, at about the same time. Of course, it was recognised that the fact that the two offences were committed simultaneously, or close together in time, did not necessarily mean that they amounted to a single transaction. Obviously, if there was more than one victim, the case for cumulation in such circumstances was all the greater.
In more recent years, the one transaction rule has come to be regarded as less of an inflexible precept, and more as a guideline, or limiting principle. ...
On any view, in cases of multiple sexual offending, even those which involve the same victim, and where the offences are closely associated in time, some level of cumulation is, today, very much to be expected. The Sentencing Act 1991, and its treatment of serious sexual offenders, supports that approach.[28]
[28]Flynn [2021] VSCA 291, [111]–[115] (Niall, T Forrest and Weinberg JJA) (citations omitted).
It should also be noted that no cumulation at all was ordered in respect of the threat to kill and cause serious injury charges.
In all the circumstances, nothing about the orders for cumulation was excessive, nor did any aspect of the sentences involve double punishment.
Leave to appeal is therefore refused.
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