Tran v The Queen
[2011] VSCA 252
•25 August 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2009 0694 | |
| ANH-TUAN TRAN | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | HARPER and HANSEN JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 4 August 2011 |
| DATE OF JUDGMENT | 25 August 2011 |
| MEDIUM NEUTRAL CITATION | [2011] VSCA 252 |
| JUDGMENT APPEALED FROM | R v Tran (Unreported, County Court of Victoria, Judge Mullaly, 18 June 2009) |
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CRIIMINAL LAW – Sentence – Rape – Six years and six months’ imprisonment with non-parole period of four years – Sentence manifestly excessive – Judge gave insufficient weight to appellant’s youth, emotional immaturity and rehabilitation prospects – Re-sentenced to five years’ imprisonment with a non-parole period of three years – Appeal allowed.
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| Appearances: | Counsel | Solicitors |
| For the Appellant | Mr C B Boyce | Pica Criminal Lawyers |
| For the Crown | Mr T Gyorffy | Mr C Hyland, Solicitor for Public Prosecutions |
HARPER JA:
I agree with Hansen JA.
HANSEN JA:
The appellant, Anh-Tuan Tran, was presented on one count of rape to which he pleaded guilty, having indicated he would do so at a committal case conference on 8 January 2009. Following a plea in mitigation, on 18 June 2009 he was sentenced to a term of imprisonment of six years and six months and a non-parole period of four years was fixed. The judge declared pursuant to s 6AAA of the Sentencing Act 1991 that were it not for the plea of guilty he would have imposed an effective sentence of eight years and fixed a non-parole period of six years.
The appellant appeals by leave on the following grounds:
1.The sentencing judge wrongly treated the appellant’s harassment of the complainant via telephone over a number of days preceding the commission of the offence as an aggravating circumstance.
2.The sentencing judge failed to give sufficient weight to the appellant’s youth and/or immaturity.
3.The sentencing judge failed to take into account the appellant was suffering from an adjustment disorder at the time of the offence.
4.The sentencing judge failed to give sufficient weight to the fact that the appellant had made admissions at the first reasonable opportunity which facilitated the prosecution.
5.The sentencing judge imposed a sentence which was, in all the circumstances, manifestly excessive.
Circumstances of the offending
The offending occurred on 31 August 2008, the appellant then being aged 20 years, and the complainant being aged 22 years. They had met in September 2007, following which they commenced a relationship which the complainant ended in July 2008.
The evidence contained considerable reference to matters that occurred between then and the occurrence of the offending. This was constituted by evidence of SMS messages from the appellant to the complainant’s mobile telephone and some from the complainant in return. Essentially, the appellant continuously contacted the complainant in an effort to convince her to resume the relationship. He sent hundreds of messages in the period August to September 2008.
The judge noted that the prosecution relied on a number of the appellant’s messages as establishing aggravating features of his offending. Prior to the offending the messages:
… were demanding of and threatening to her, variously warning her that if she did not resume the relationship you would ring her at home and at work and that you would spread rumours about her. In fact, you threatened to “prank” her home phone number which I take to mean that you would ring that number continuously to harass her and her parents. This threat was no idle one, given that [the complainant’s] parents were unaware that the relationship between you and their daughter had continued in secret. You made threats which were disturbing and reveal a dark side of your character.
The judge then referred to some (out of many) of the messages, commencing on 22 August 2008, and continuing as follows:
5.On 22 August 2008 at 5.21 pm you text [the complainant] in this fashion. “Yet again you made me wait. If you don’t choose to see me either at Chaddy Shopping Centre or the usual place in Springy in half’s time, then I’m not going to leave you alone, I’m going to start calling your home phone. This hasn’t happened to me before.”
6.On 23 August 2008 at 10.13 in the morning, “You think you’re smart enough, but in fact you’re not. You’ll never learn from your lessons.”
7.23 August 2008 at 9.55. “I’m hurt by you now. You know the consequences. Shout in front of your work place. This is how you treat me. Either you choose to see me after work, or you know what happens.”
8.24 August 2008 at 3.40 am, that’s in the middle of the night. “You destroyed and ruined my life. Since you’re not mature enough and too weak to own up to it, I’m going to tell everyone what we’ve done, had sex together, because you’re irresponsible and regardless of how I felt, you left me, just playing around with me, my feelings” and it ends in Vietnamese.
9.24 August 2008 at 7.06 am. “I won’t give up until you’re mine”.
10.28 August 2008 at 12.33 pm. “Sorry, my battery got cut out and is really 10W at the moment. I’ve got one hour tutorial today so I hope and expect to see you in the CPU at my library 5 pm to study together for tonight because I don’t get to or can’t see you tomorrow night because I have work ‘til 8. I’m making it up to you. If I don’t see you by then, I can’t leave you alone. I will continue to force myself to see you, to force you. You will see how I’m going to treat you from now on and don’t expect anything good to happen out of it. I will do whatever it takes for you to come back to me.”
11.30 August 2008 at 7.33 am. “I guess you won’t pick up my calls and you’re not going to listen to me then. You transformed me into this so don’t regret it later. You forced me to get back with you and now you’re forcing my hand. Do you want me to get the pregnancy tester for you?”
12.On the day of your offending, 31 August 2008 at 4.51 pm. “So do you understand, it won’t be the last time for me. I will keep on bothering you. You’re forcing me to prank your phones. Is that what you want? Unless just SMS me.”
13.On the same day at 4.42. 31 August at 4.42. “My battery is flat. You’re agreeing to meet me at the usual spot. Please, one last time.”
The judge noted that in her responses the complainant expressed that the appellant’s attitudes and threats were distressing her. She made it clear she did not want the relationship to continue, as to which the judge instanced her following messages on 27 August:
16.It was on 27 August 2008 at 2.58 am. “Tuan, it’s really best for you to be with someone else. I really can’t accept the way things are at the moment, especially how you are forcing me. You say you love me but yet it does not seem like it. When you love someone, you do not backstab that person nor talk crap behind their back. Why can’t you accept the fact that we are just friends so please stop forcing me beyond that and especially stop threatening me to do things your way. You threaten me like that, certainly it is going to drive me away from you. I cannot have feelings for a person who does this to me. You say you’re hurt and depressed. Well, I feel the same way too. You’re threatening me at the moment so you don’t know how it feels. Love has to be a two way not just by force from one way. I really need to have my space ATM [which I take to be “at the moment”]. You’re really hurting and upsetting me emotionally and physically which makes me feel really depressed. I cannot concentrate on anything, especially with school. I don’t want to have that fear inside me every time seeing you. Why can’t you maintain that mutual friendship?”
17.Later that day, on 27 August 2008, in response to what you had sent to her, [the complainant] texted you. “I mean it, leave me alone.”
18.28 August 2008 at 8.08 am. “Threatening me again.”
19.29 August 2008 at 8.15 am in a telling SMS to you, she said “Tuan, if you don’t stop all this, then I’m going to call the police on you. I can’t take your harassment anymore.”
On 31 August 2008 the complainant received numerous text messages from the appellant requesting they meet, which the complainant refused. In one message the appellant threatened to ‘ … upload photos of me, get me pregnant and spread rumours about me’. He said in a message that ‘if I met up with him, it would be the last time and he would stop hassling me.’ Ultimately, the complainant decided to meet the appellant ‘to put an end to all the phone calls, messages and threats’.
They met at approximately 6.30 pm on 31 August at the Springvale railway station. The appellant asked for another chance but the complainant refused and left. A short time later the complainant received an abusive text message from the appellant which included a request to meet him ‘at the usual spot in ten minutes’. The complainant decided to meet with him because she believed he would not leave her alone until she spoke to him; she was concerned that she not interrupt her studies in the coming weeks so she went to sort it all out.
The complainant drove to ‘the usual spot’. The appellant was present and got into her car, she being in the driver’s seat and the appellant in the passenger seat. The appellant repeatedly asked the complainant to take him back. They argued and the appellant attempted to kiss the complainant. She resisted and tried to push him away. He got on top of her, and she could not push him off. He forced her to kiss him and said he would stop if she would be his girlfriend. She refused. He was also touching her on the breasts and between her legs over her clothing. The complainant was trying to get away but eventually found herself in the passenger seat, to which the appellant had moved her. When she attempted to open the car door he either locked it or stopped her. He removed her and his clothing, saying something about her being his again. The appellant inserted his penis in her vagina, not wearing a condom and continued until he ejaculated. During this process she was yelling out and slapping him in an endeavour to get him to stop. The complainant was very scared and eventually in answer to his requests said to him ‘Stop it, OK, I will be yours’. He then made her promise that she would be his, and kept repeating that the complainant would be his. He said he would treat her better, and not hurt her, and got off her. The appellant and the complainant then got dressed and she drove home. Upon arrival at home she received a text from the appellant telling her to ‘look after herself and that he missed her’.
The complainant did not report the incident to the police at this time.
During the following week the appellant attempted to contact the complainant on numerous times in an effort to arrange a meeting, which the complainant refused. In a message on 7 September he stated:
Since from last time I don’t regret it. I made the right and justified decision by coming into your vagina. You even nodded your head that you would get back to me. I do really hope and want you to become pregnant. Soon enough you will hear rumours that we’ve done it together. You simply want me to abandon you like that, don’t you?
The judge noted that the message revealed that the appellant knew that what he had done was wrong and that he had hurt the complainant.
On 9 September 2008 the complainant found the appellant next to her car when she returned to it in the car park at the institution where she studied. When she opened her car door he sat in the driver’s seat. The complainant asked him to leave her alone and he got out of the car, but moved close to her. Arguing ensued and the appellant attempted to kiss her on the cheek. The complainant slapped him and told him to leave her alone. Other people heard the complainant yelling and at the complainant’s request called security. The appellant left the area. Police arrived and spoke to the complainant who disclosed she had been sexually assaulted by the appellant but she did not wish the police to do anything about the matter. Subsequently the complainant changed her mind and in December 2008 made a second statement detailing the sexual assault.
The appellant was arrested on 9 September 2008 and interviewed by the police. He made a number of admissions as to the incident on 31 August. Among other things, there were a number of admissions as to the complainant crying, yelling at the appellant and hitting him; to the appellant having become angry, to pushing the complainant back into the seat, removing her clothes and his own and to having had sex with her. As to whether the complainant consented, he said ‘I’m not sure.’ She appeared upset and he threatened her that he would ejaculate inside her and get her pregnant. He asked her ‘Do you still want to get back?’ or along those lines and ‘she nod her head’ and ‘that’s when it stopped.’
The appellant was charged and failed to appear at a filing hearing on 12 September 2008. That was followed by a committal mention on 5 December 2008 and the committal case conference in January 2009 at which the appellant indicated a plea of guilty.
The appellant
The appellant had no prior convictions and was born in Melbourne of parents who came to Australia as refugees from Vietnam in 1981. His parents had worked hard and provided the appellant with a good education. Having completed his VCE he commenced, and at the time of sentence, was in the third year of a biomedical degree course.
A report from a forensic psychologist, Geoffrey Cummins, dated 3 June 2009 was tendered at the plea on the appellant’s behalf. Mr Cummins expressed the opinion that the appellant presented as significantly emotionally immature and as having adolescent-like emotions in relation to his close relationships. The appellant presented as having a very dependent personality style. Mr Cummins expressed concern about the appellant, stating that he had considerable difficulty coming to terms with his legal situation, which he considered reflective of the appellant’s personality problems, particularly his emotional immaturity. He did not have any specific sexual problem or present as being a misogynist, or as having a general anger management problem. Otherwise, apart from the subject case, his prospects for a productive and constructive life were impressive, being committed to his studies and being a hard worker. Mr Cummins also was of the opinion that the appellant would have considerable difficulty coping with imprisonment and anticipated his mental state would deteriorate significantly if he were incarcerated. He required the opportunity to receive intensive and ongoing one-to-one therapy. He needed to focus on the issue of boundaries within intimate relationships and also cultural factors and in relation to self-esteem. Mr Cummins, finally, expressed the opinion that the appellant was suffering from an adjustment disorder with mixed disturbance of emotions (anxiety, hurt, confusion and depression) and conduct. His opinion was that the adjustment disorder most probably developed in the context of his relationship with the complainant although he could not exclude the possibility that it developed in the context of him being an only child in a family in which he anticipated his parents would separate.
I turn now to the grounds of appeal.
Ground 1
In addressing this ground the appellant relied on the following matters. First, it was submitted that the judge accepted, and acted upon, the prosecutor’s invitation to treat some of the text messages as establishing aggravating features of the offending. That the judge placed great weight upon them was evident from the extent of his focus upon the messages both in the course of the plea and in his sentencing remarks. In short, the judge placed too much emphasis upon the messages.
Secondly, the messages preceded the offending which the judge found was not planned but explained by a loss of control when in the car.
Thirdly, as the pre-offending messages could have been the subject of a separate charge of stalking, the judge was incorrect in incorporating into the sentence a component to reflect that with which the appellant had not been charged.
Fourthly, the judge would presumably have imposed a lesser sentence had he not regarded the pre-offending harassment as an aggravating circumstance.
The first thing to note is what the judge actually said. He did not say that he accepted the prosecutor’s invitation. Nor did he say that he did not accept it. When he was considering the weight to be attached to the consideration of the appellant’s emotional immaturity, his Honour said:
While it is important to consider all factors going to your moral culpability and accordingly assessments made after the event such as that done by Mr Cummins in your case are helpful in the difficult endeavour to explain what was going on in your mind at the relevant time. But by the same token your conduct before and after the offending does serve to eliminate what was your level of moral culpability. (See for example DPP v Scholes [1999] 1 VR 337 at [23].)
The judge then referred to the appellant having been:
50.… psychologically and emotionally ill-equipped to deal with the end of your relationship with [the complainant]. I think it is likely that the unwanted end of any important relationship, including and perhaps particularly a first relationship, takes a toll on the one who feels rejected. However, that a relationship ends is not an unusual event, and certainly not one unique to you. Your response was simply unacceptable in any civilised society. Your attack on [the complainant], and its purpose to dominate and suborn her, must also be seen as an attack on important values in our community. The freedom to enter into and safely leave relationships is vital to the foundational concepts of any community: that is, that everyone is equal, men do not use physical force or emotionally-laden threats to get their way, and that we all respect the dignity and autonomy of others. You brutally dealt with [the complainant], and, by doing so, showed that the values I have articulated were unimportant to you. Your own needs came first.
51.Whilst no doubt you were immature, there is a limit to how far that fact can ameliorate your offending. This is particularly so in light of the fact that [the complainant] told you in plain terms that the relationship was over, but you could remain friends, but that you should stop threatening and harassing her. But you persisted.
52.Even more pertinent to the issue of whether your immaturity meant that you could not see clearly the consequences of your conduct is that as you commenced to do the acts that led to your rape of [the complainant] – that is, overpowering her, removing her clothing, and restraining her – she was resisting in unequivocal terms. This continued throughout her ordeal. It beggars belief that you did not understand what message she was sending as she hit you and tried to fight you off.
53.In my view, the circumstances of this case – that is, your conduct before, during and after your offending – mean that your immaturity can do little more than attempt to explain your conduct. It provides little by way of excuse, and though it has some mitigatory value in all the circumstances it must be limited. Insofar as your immaturity goes specifically to the issue of your moral culpability, it seems clear to me that you did not think through what you were doing. I do not find that you were planning to do what you did but rather at some point in the car you lost control. But there can be little doubt that you even with your diminished capacity you knew that what you were doing was wrong and traumatic for [the complainant]. You were determined to do it anyway so that she would finally give in and say that she would be yours. You considered that above all else.
It is evident in these passages that the judge had regard to the text messages as explaining the history between the appellant and the complainant and the motivation for the offending. In my view it was open to the judge to have regard to the messages as he did. There was no element of double punishment in this.
The appellant referred to the observations of Cox J in Teremoana v The Queen[1] cautioning against punishing an offender for an offence of which he has not been convicted. But, as Cox J pointed out[2] there is no absolute rule that when sentencing regard may not be had to actions of the offender that may constitute separate offences. If they were offences of less gravity the question will be one of degree and fairness whether they may properly be taken into account as part of the circumstances surrounding the offence. That is, each case turns on its own facts. See also Medcraft v The Queen.[3] Here the possible offence of stalking was a lesser offence and, for the reasons stated, it was both open and proper for the judge to consider the pre-offending messages.
[1](1990) 54 SASR 30, 36.
[2]Ibid 37–8.
[3](1992) 60 A Crim R 181, 185–8.
Although I consider that the appellant has failed to establish that the judge erred in principle under this ground, the appellant’s contentions are relevant to the manifest excess ground.
Ground 2
Counsel for the appellant submitted that the judge’s finding that the appellant was emotionally immature warranted an appreciable reduction in the sentence. But the judge discounted such reduction, finding that the appellant’s immaturity was no more than an explanation for his conduct, and that its mitigatory value was limited. As against that, and accepting that the evidence did not raise a Verdins point, the judge found that the offending was not planned, and took into consideration that the appellant was a youthful offender.
In my view this ground really is an aspect of the ground of manifest excess. No specific error or principle is established under this ground.
Ground 3
This ground also lacks substance. The judge took into account the appellant’s youth and emotional immaturity. But this was not a Verdins case.
Ground 4
This ground complains that insufficient weight was given to the appellant’s early admissions. The judge referred to this matter and evidently took it into account. There is no error of principle. The matter is rather an aspect of the ground of manifest excess.
Ground 5
In the appellant’s written submission it was contended that the sentence imposed was manifestly excessive given the above grounds 1 to 4, all the circumstances including the guilty plea, the lack of a criminal history, that the appellant’s antecedents and prospects were very good, and that the offending was not a bad example of the offence. As to the last point, it was said that the offence was not planned, there was only one penetration, there were no accompanying threats or violence beyond the offence itself, the appellant did not strike the complainant and the offence was borne out of fondness rather than dislike for the complainant.
In his oral submissions counsel for the appellant referred to Hasan v The Queen[4] and MC v The Queen[5] and submitted that these cases indicate that the sentence imposed on the appellant was contrary to current sentencing practice and above the applicable range. He further referred to the fact that in the course of the plea the prosecutor provided the following range of sentence to the judge, a maximum of between three years and five and a half years and a minimum of between 18 months and three and a half years. That range was given prior to hearing the plea and without the benefit of Mr Cummins’ report.
[4][2010] VSCA 352.
[5][2011] VSCA 2.
Counsel conceded that the rape was committed in an attempt by the appellant to get the complainant back into a relationship with him. After the offence the appellant was to be understood as believing he had achieved the complainant’s return to the relationship. What he said and what he thought as to succeeding in this respect revealed his emotional immaturity. In this respect, too, counsel relied upon the judge’s finding that the rape was not planned but occurred spontaneously when the appellant lost control in the car. Then, a separate but additional consideration was that the appellant had made admissions in his record of interview which both facilitated proof of the charge and indicated, in their terms, a lack of guile.
Counsel for the Crown acknowledged that the sentence imposed was higher than the range submitted by the prosecutor on the plea, and was a stern sentence. But it was not conceded that the sentence was so high that no reasonable judge could have imposed it in the circumstances. These circumstances were emphasised: the over-powering of the complainant in her car when she had come to finally resolve the end of the relationship, that the appellant undressed the complainant, restrained her and raped her despite her crying out and hitting him and continued until she agreed to resume the relationship. Moreover, he ejaculated without using a condom with the attendant risk of disease and pregnancy. He also showed little insight into his offending when interviewed by the police and by Mr Cummins. And there was little in the way of remorse.
In developing these submissions, counsel for the Crown identified Hasan and MC as ordinary rape cases where drink or lust might have driven one to the offence. Here, what was done was done for the purpose of gaining control over the complainant, to force her to submit to his will. This offending was not simply about sex, but rape to force the complainant back into a relationship; the case was worse than Hasan and MC where, the Crown submitted, the offending was principally for gratification. As to such conduct, the judge had correctly referred to the statements of Winneke P in R v Mason[6] and Dodds-Streeton JA in DPP v Smeaton.[7] Moreover the present offending was done knowing it was wrong.
[6][2001] VSCA 62, [8].
[7][2007] VSCA 256, [21].
Furthermore, counsel submitted, the reference by Mr Cummins to immaturity related to the appellant’s refusal to give up on the relationship. As the judge observed, the acceptance of the ending of a relationship is an ordinary occurrence in the community. It was not exceptional that the judge said that the appellant’s immaturity had only a slight role in his offending.
As to the point of the value of the admissions, counsel submitted that the present was not a case where the offence or offender was unknown or the admissions were a significant contribution to proof of the offence. Further, while the appellant made admissions, there was the offsetting consideration that, as the judge found, he had little if any insight into his offending and remained bewildered and puzzled by his predicament. Indeed it was acknowledged that remorse could not be advanced as a mitigating feature or provide the usual strong foundation for ongoing rehabilitation. The judge recorded that that was a troubling aspect of the matter.
Finally, it was observed on the basis of the s 6AAA declaration that a substantial allowance of 18 months had been made on account of the plea and other mitigatory factors.
In my view, regarding the matter overall, the sentence imposed did exceed that which was reasonably open in justice as appropriate for the offending. Of course the offending was brutal and carried out for the purpose of asserting dominion over the complainant and forcing her to his will. Further, the judge provided reasons which referred to all relevant matters, but in the end I consider that excessive weight was placed on the purpose and circumstances of the offending and that insufficient weight was given to mitigating factors, in particular the appellant’s young age, his emotional immaturity and his rehabilitation prospects notwithstanding his current lack of insight. It is the combination of these matters that produced a sentence which exceeded, and substantially so, the sentence which I consider was open in the circumstances. It is unnecessary to repeat all of the various factors that were to be considered in mitigation, let alone the circumstances of the offending.
In my view the sentence was manifestly excessive. I would set aside the sentence imposed below and re-sentence the appellant to a term of imprisonment of five years and fix a non-parole period of three years. I would declare for the purpose of s 6AAA that but for the appellant’s plea of guilty a sentence of six years’ imprisonment and a non-parole period of four years would have been fixed. There would be a declaration of time served and I would otherwise confirm all ancillary orders made in the County Court.
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