Torrefranca v The Queen

Case [2021] VSCA 157


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:

  1. 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.

  1. Each offence carried a maximum penalty of 10 years’ imprisonment.

  1. 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
  1. 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

  1. 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.

  1. Shortly after arriving at the facility in the mid-afternoon, the applicant…

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Torrefranca v The Queen [2021] VSCA 157
Case
[2021] VSCA 157
Decision Date

CaseChat Overview and Summary

Torrefranca was found guilty of multiple counts of sexual assault and sexual penetration of persons with a cognitive impairment or mental illness. He appealed against his sentence. The central issue was whether the sentencing judge erred in treating the breach of trust as both an aggravating factor and in diminishing the weight of Torrefranca's previous good character. The appeal hinged on whether this constituted double counting, as established in Ryan v The Queen and SD v The Queen. Torrefranca argued that the sentencing judge had doubly punished him for the breach of trust by treating it as both an aggravating feature of the offending and as diminishing the weight of his previous good character.

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].