SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0025
| RANULFO TORREFRANCA | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | McLEISH and OSBORN JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 26 May 2021 |
| DATE OF JUDGMENT: | 9 June 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 157 |
| JUDGMENT APPEALED FROM: | [2019] VCC 1869 (Judge Marich) |
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CRIMINAL LAW – Appeal – Sentence – Previous good character – Breach of trust – 62 year-old disability support worker with previous good character sentenced for sexual assault and sexual penetration of persons with cognitive impairment or mental illness – Whether applicant doubly punished for breach of trust – Sentencing judge treated breach of trust as aggravating feature of offending and as diminishing weight of previous good character – Ryan v The Queen (2001) 206 CLR 267, SD v The Queen (2013) 39 VR 487, Wakim v The Queen [2016] VSCA 301, applied – Error shown – Appeal upheld – Appellant resentenced – Crimes Act 1958 ss 40, 52B.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms G F Connelly | Ann Valos Criminal Law Pty Ltd |
| For the Respondent | Mr J Dickie | Ms A Hogan, Solicitor for Public Prosecutions |
McLEISH JA
OSBORN JA:
On 2 July 2019, the applicant pleaded guilty, before a judge of the County Court, to three charges of sexual assault,[1] and two charges of sexual penetration of a person with a cognitive impairment or mental illness.[2]
[1]Crimes Act 1958 s 40.
[2]Crimes Act 1958 s 52B.
Each offence carried a maximum penalty of 10 years’ imprisonment.
On 29 October 2019, the judge sentenced the applicant to a total effective term of 6 years and 9 months’ imprisonment, with a non-parole period of 4 years, as follows:[3]
[3]DPP v Torrefranca [2019] VCC 1869 (‘Sentencing Remarks’).
| Charge | Offence | Maximum | Sentence | Cumulation | ||
| 1 | Sexual assault | 10 years’ imprisonment | 1 year and 6 months | 3 months | ||
| 2 | Sexual penetration of a person with a cognitive impairment | 10 years’ imprisonment | 3 years | 2 years | ||
| 3 | Sexual assault | 10 years’ imprisonment | 2 years | 6 months | ||
| 4 | Sexual assault | 10 years’ imprisonment | 2 years and 9 months | 6 months | ||
| 5 | Sexual penetration of a person with a cognitive impairment | 10 years’ imprisonment | 3 years and 6 months | Base | ||
| Total effective sentence | 6 years and 9 months’ imprisonment | |||||
| Non-parole period | 4 years | |||||
| Section 6AAA statement | 8 years’ imprisonment with a non-parole period of 5 years | |||||
The applicant now seeks leave to appeal the sentence. For the reasons that follow, leave to appeal will be granted in respect of the first proposed ground of appeal, the appeal will be allowed and the applicant will be resentenced as set out at the end of these reasons.
Circumstances of the offending
The offending took place on the afternoon of 7 August 2018. The applicant was 62 years old. He was employed, on a probationary basis, as a disability support worker at a supported accommodation facility.
Shortly after arriving at the facility in the mid-afternoon, the applicant…
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- AGLC
- Torrefranca v The Queen [2021] VSCA 157
- Case
- [2021] VSCA 157
- Decision Date
CaseChat Overview and Summary
The Court held that the sentencing judge had indeed erred by treating the breach of trust in two different ways, thus constituting double counting. The Court applied the principles from Ryan v The Queen, SD v The Queen, and Wakim v The Queen, which clarify that a sentencing judge must avoid double counting when considering aggravating factors. The Court found that the sentencing judge had doubly punished Torrefranca by treating the breach of trust as both an aggravating factor and as reducing the weight of his previous good character. This was in breach of the principles established in the cited cases, leading to an error in the sentencing process. Consequently, the appeal was upheld, and Torrefranca was resentenced under sections 40 and 52B of the Crimes Act 1958.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
The applicant then moved in front of Ms Hawker and spread her legs. He inserted his fingers in her vagina and moved them around four or five times (charge 5 – sexual penetration of a person with a cognitive impairment or mental illness). Ms Hawker told the applicant not to touch her as she got out of the shower, and said to him that she needed a break. The applicant told Ms Hawker not to tell anyone else about what had happened because he could lose his job. He took Ms Hawker back to her bedroom. Later that day, Ms Hawker and Ms Drying reported the incidents to another carer at the facility. The police were contacted. The applicant was arrested two weeks later, on 21 October 2018. In his initial interviews with police, he denied any wrongdoing. The applicant was committed for trial in early March 2019. The trial was listed for August 2019. In April 2019, the results of DNA analysis of Ms Drying’s clothing were returned. They provided extremely strong support for the applicant being a contributor to a mixed DNA profile taken from the breast region of Ms Drying’s shirt. On 25 June 2019, the matter resolved. The applicant pleaded guilty to the present indictment on 2 July 2019. The judge characterised the offending as involving multiple violations of the sexual privacy and dignity of each disabled victim, albeit over a short span of time. The offending against Ms Drying was spontaneous and opportunistic. While similarly opportunistic, the separate and subsequent offending against Ms Hawker occurred after the applicant had recognised that he had offended against Ms Drying.[5] [5]Sentencing Remarks [75]. The judge said that the offending was aggravated by a ‘truly shocking’ breach of trust against vulnerable victims.[6] She stated that, in respect of the charges of sexual penetration of a person with a cognitive impairment or mental illness, she had taken care to avoid double punishment, as being a support worker for the victim and therefore in a position of trust was an element of that offence.[7] [6]Ibid [76].[7]Ibid [78]. The offending was also aggravated, the judge said, by the applicant attempting to silence the victims by urging them not to report his offending.[8] [8]Ibid [77]. The judge described the distress and trauma which the offending had caused the victims and their families. There was a serious diminution in the quality of life of both women, and they had lost trust in their carers, upon whom they depend for their daily and intimate care.[9] [9]Ibid [76]. The judge acknowledged the applicant’s guilty plea, which she considered to be indicative of remorse and of real utilitarian value.[10] [10]Ibid [44]–[45]. Turning to the applicant’s personal circumstances, the judge described his upbringing in the Philippines, during which he was exposed to scenes of violence and murder. The applicant moved to Australia with his family after experiencing threats and harassment connected with his employment for foreign-owned companies. He subsequently worked as a security guard, among other roles. He had a long and successful work history. The judge observed that, as a compensatory response to his history of trauma, the applicant appeared to have sought jobs focused on helping others.[11] At the time of the offences, the applicant was in the process of retraining so that he could work in community services. [11]Ibid [64].