Tiburcy v The Queen

[2010] VSCA 307

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2007 0897 A

JURGEN TIBURCY
	Appellant
v
THE QUEEN	Respondent

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JUDGE:

MAXWELL P, WEINBERG JA and ROSS AJA

WHERE HELD:

MELBOURNE

DATE OF HEARING:

19 October 2010

DATE OF JUDGMENT:

MEDIUM NEUTRAL CITATION:

19 October 2010

[2010] VSCA 307

JUDGMENT APPEALED FROM:

R v Tiburcy (Unreported, County Court of Victoria, Judge Rizkalla, 2 November 2007)

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CRIMINAL LAW – Appeal – Sentence – Aggravated burglary (one count) – Rape (two counts) – Total effective sentence seven years six months;  non-parole period six years – Non-parole period represented 80 per cent of total effective sentence – Crown concession – Non-parole period outside the range open to sentencing judge – Appeal allowed – Appellant resentenced to shorter non-parole period – Head sentence unchanged.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Ms H Spowart	Victoria Legal Aid
For the Crown	Mr B Sonnet	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P

WEINBERG JA

ROSS AJA:

1. The appellant pleaded guilty to one count of aggravated burglary and two counts of rape.  These offences took place on 11 March 2007.  That evening, the appellant arrived at his former partner’s unit in a highly intoxicated state.  He did not, however, enter the unit, and decided to sleep on a bench outside instead.  The next morning the ex-partner, with whom the appellant had maintained a cordial relationship, found him outside and invited him in for a cup of coffee.  About an hour later, the ex-partner showed him out as she was leaving for work.  Her 16-year-old daughter (the ‘complainant’) was asleep inside.  The appellant had told the ex-partner he would wait for the taxi he had ordered outside.  His ex-partner locked the front door behind her.

1. In fact, the appellant had not called a taxi.  After his ex-partner left, he entered the unit through an unlocked back door, and went to the complainant’s bedroom (giving rise to the aggravated burglary count).  He instructed her to remove her clothes, saying that he would do this for her if she refused.  He threatened to kill her if she did not comply.  The two subsequently went into the kitchen, where the complainant screamed and tried to run out the front door.  The appellant covered her mouth and dragged her into her bedroom, where he forced her to remove her clothes.  He instructed her to lie in the bed.  He then lay next to her, placing his hand between her legs, touching her vagina and ultimately penetrating it with his fingers (giving rise to the first count of rape).  He kissed her breasts, licked her vagina and then forced her to fellate him (giving rise to the second count of rape).  He then showered with the complainant, told her not to tell anyone what had happened, and left.

1. On 2 November 2007 the appellant was sentenced in the County Court as follows:

Count	Offence	Maximum	Sentence	Cumulation
1	Aggravated burglary	25y	3y	1.5y
2	Rape	25y	4y	Base
3	Rape	25y	4y	2y
TES: 7.5y    NPP: 6y

Non-parole period manifestly excessive

1. The sole ground of appeal concerned the fixing of the non-parole period.  In essence the submission was that it was not reasonably open to the judge to fix a non-parole period as high as six years, given that it represented 80 per cent of the head sentence.  This result was said to be outside the sentencing range reasonably available to the judge, when full account was taken of the mitigating features, which were as follows:

·the plea of guilty;

·genuine remorse;

·the fact that the offending was ‘out of character’, and the appellant (who was aged 44) had no relevant prior convictions;

·the appellant’s good employment record over almost 30 years;

·significant stress suffered by the appellant while on remand;

·the appellant’s alcohol dependence and associated borderline intellectual capacity, depression and ‘significant schizoid trend’; and

·the low risk that the appellant would re-offend.

1. The sentencing judge noted that the appellant had long-standing issues with the abuse of alcohol and that he had been drinking to excess before committing the offences.  She noted that the drinking problem was related to his own sexual abuse as a child.  It was noted that, since his remand, the appellant had attended drug and alcohol meetings, as well as seeing a psychiatrist who had prescribed him medication.

1. The sentencing judge noted that the likelihood of the appellant re-offending was reasonably low if he continued to deal with the problem of his alcohol.  Her Honour cited the opinion of Mr Healy, clinical psychologist, that the appellant would benefit from a significant period of parole, as it would assist him in rehabilitating in relation to his alcohol use.

Crown concession of error

1. Importantly, the Crown has conceded that the non-parole period fixed by the sentencing judge was outside the range reasonably open.  In his written submission, the Crown prosecutor states:

After careful consideration, the respondent concedes that the fixing of the non-parole period was not in accordance with sentencing practice in this State.  In short, there was a constellation of powerful features driving the ratio downwards.

1. The Crown thus accepts that, if proper weight had been given to all of the matters in mitigation, the non-parole period had to be a lower proportion of the head sentence than that which the judge fixed.  As the prosecutor’s submission puts it:

Despite the gravity of the offending, it is important in sentencing to give credit to an offender where it is due – the appellant has done all that he can do to right the wrong.  This humanitarian approach to the resolution of a legal problem indeed finds some support from those who have occupied high office, for as Justice Evatt remarked upon his retirement from the High Court[1] –

“I would like to say (as Mr Justice Isaacs said of the late Mr Justice Higgins) that I have always searched for the right with a lamp that was lit by the flame of humanity.”

[1]‘Personalia:  Mr Justice Evatt’ (1940-41) 14 Australian Law Journal 194.

1. In our view the Crown’s concession is appropriate in the circumstances, and we accept it.

1. It follows that – so far as the non‑parole period was concerned – the sentencing discretion miscarried.  In strictness the entire sentencing discretion is thereby reopened, but it is not suggested by the appellant that there should be any alteration in the head sentence.  Counsel for the appellant made quite clear in her submissions that no attack was made on the head sentence and that the attack concerned the non-parole period only.  In view of the seriousness of the offending, that concession was clearly correct.

Resentencing

1. On the hearing of the appeal, counsel for the appellant filed an affidavit from the solicitor in the Horsham office of Victoria Legal Aid who acts for the appellant.  This affidavit has exhibited to it certificates showing that the appellant has completed a significant number of courses relevant, in particular, to alcohol and drug relapse prevention, including:

·the Drug Education program offered by Moreland Hall Uniting Care;

·the Relapse Prevention program offered by Moreland Hall Uniting Care;

·the 24 Hour Alcohol program (Level III) offered by Caraniche Pty Ltd;

·the 40 Hour Semi-Intensive Drug Treatment program (Level IV) offered by Caraniche Pty Ltd;

·the Infection Control Awareness Orientation program offered by the Department of Justice;

·the General Treatment program on Stress Management (2007 and 2008) offered by Corrections Victoria; and

·the LTP Program Introductory Module in ‘Understanding Self-Care’ offered by Corrections Victoria.

1. The Court has also been told that the appellant is the convenor of the ‘Alcoholics Anonymous’ association within Ararat Prison.  We are satisfied that this evidence gives further support to the view at the date of sentencing that – subject to getting on top of his alcohol problem – the appellant’s prospects of rehabilitation were good.

1. This Court has often said that credit should be given for steps taken by an offender towards his rehabilitation, and that – so far as can be achieved consistently with the other objectives of sentencing – efforts towards rehabilitation should be recognised in the decision-making of sentencing courts.  The public interest in the rehabilitation of offenders, though often ignored in public debates about sentencing, is of the first importance.

1. In our view the appellant deserves credit for the steps he has taken, and for his obvious remorse, as noted by the judge.  More particularly, the uncontested expert evidence was that a longer period on parole would enhance the appellant’s prospects of rehabilitation and reduce the risk of his re-offending.  Achieving that result is obviously in the community’s interest.

1. In our view the appellant should be resentenced as follows:

   Count 1         –          three years’ imprisonment

   Count 2         –          four years’ imprisonment

   Count 3         –          four years’ imprisonment

2. We direct that 18 months of the sentence imposed on count 1 and 2 years of the sentence imposed on count 3 be served cumulatively upon each other and upon the sentence imposed on count 2, resulting in a total effective term of imprisonment of seven-and-a-half years.  We fix a period of five years and three months’ before the appellant is eligible to be released on parole.  We will also make a pre-sentence detention declaration and otherwise confirm the orders for disposal of forensic samples and registration made by the sentencing judge.