Tuan Anh Cao v The Queen
[2017] VSCA 298
•19 October 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0138
| TUAN ANH CAO | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGE: | SANTAMARIA JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 16 October 2017 |
| DATE OF JUDGMENT: | 19 October 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 298 |
| JUDGMENT APPEALED FROM: | DPP v Cao (Unreported, County Court of Victoria, Judge Gucciardo, 23 December 2016) |
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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE (DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009)
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CRIMINAL LAW – Application for leave to appeal against sentence – Aggravated burglary – Threat to kill – Sexual assault – Rape – Theft – Sentence of 10 years’ imprisonment with non-parole period of 6 years and 6 months – Whether sentence manifestly excessive – Whether error in aggregating sentence – Whether judge failed to take into account principles of totality and proportionality – Whether judge considered level of family and social support in assessing rehabilitation prospects – Leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr A L Hands | Luat Lawyers |
| For the Respondent | Ms G A Coghlan | Mr J Cain, Solicitor for Public Prosecutions |
SANTAMARIA JA:
The applicant, now aged 31, pleaded guilty to one charge of aggravated burglary, one charge of threat to kill, one charge of sexual assault by touching, three charges of rape and one charge of theft. On 23 December 2016, he was sentenced in the County Court as follows:
Charge on indictment Offence Maximum penalty Sentence Cumulation 1 Aggravated burglary [Crimes Act 1958 s 77(1)] 25 years’ imprisonment 5 years’ imprisonment 9 months 2 Threat to kill [Crimes Act 1958
s 20]10 years’ imprisonment 1 year imprisonment 2 months 3 Sexual assault [Crimes Act 1958
s 40(1)]10 years’ imprisonment 2 years’ imprisonment 1 month 4 Rape [Crimes Act 1958 s 38(1)] 25 years’ imprisonment 8 years’ imprisonment 6 months 5 Rape [Crimes Act 1958 s 38(1)] 25 years’ imprisonment 8 years’ imprisonment 6 months 6 Rape [Crimes Act 1958 s 38(1)] 25 years’ imprisonment 8 years’ imprisonment Base 7 Theft [Crimes Act 1958 s 74(1)] 10 years’ imprisonment 3 months’ imprisonment Nil Total effective sentence: 10 years’ imprisonment Non-parole period: 6 years and 6 months’ imprisonment Pre-sentence detention declaration 225 days Section 6AAA Statement 12 years’ imprisonment with a non-parole period of 8 years’ imprisonment Other relevant orders Reporting for 15 years pursuant to the Sex Offenders Registration Act 2004.
Sentenced as a serious sexual offender on charges 5 and 6 pursuant to the Sentencing Act 1991.
The applicant now seeks leave to appeal his sentence.
Circumstances of the offending
At the time of the offending, the victim was 19. She was living with four housemates in Clayton. She was unknown to the applicant.
On the night of 8 April 2016, the victim was at home with her housemates. Sometime after 11:30 pm, she went to her bedroom. At about 1:00 am the next morning, she went to sleep, wearing a pair of underwear. Her bedroom window, which faced the adjacent driveway of the premises, was open. The window did not have a flyscreen.[1]
[1]The victim regularly slept with her bedroom window open to prevent overheating. One week before the offending, she had removed the flyscreen on the window and had forgotten to replace it. See DPP v Cao (Unreported, County Court of Victoria, Judge Gucciardo, 23 December 2016) [6] (‘Sentencing remarks’).
Later that morning, at about 5:00 am, the applicant left his home in Noble Park for his daily walk before work. On this occasion, he chose a different path to his usual routine. He approached the victim’s house and saw that her window was open. He walked towards the window and saw the victim lying in bed. He climbed through the window.[2]
[2]This act formed the factual basis of the charge of aggravated burglary.
At the time of the applicant entering the victim’s bedroom, the victim was asleep. One housemate and her partner were asleep in the next room and another housemate was asleep in the bedroom across the hallway. The other two housemates were asleep in bedrooms upstairs.
As the applicant climbed through the window, the victim stirred. She awoke to find him standing over her. He leaned forward, either lying on or crouching on her. He put his face close to hers and said, ‘Do you have any money?’ When she said that she did not, he asked her if there was any money in the house. She offered to ask her friends. She said that she would take him to an ATM and give him all of her money if he left her alone.
Seeing that the victim was naked from the waist up, the applicant began pulling back the doona cover. She pleaded with him, offering him all of her money. He said, ‘Don’t make any sounds or I will slit your throat.’ He also threatened to break her neck and kill her.[3]
[3]This act formed the factual basis of the charge of threat to kill.
The victim tried not to make any noise, but started shaking and crying. The applicant placed his hand over her mouth and told her to stop crying. She told him that crying was a human instinct; he told her not to talk about human instincts.
The applicant pulled down the doona cover. The victim repeatedly said ‘no’ to him and held her legs together. He told her that she could make it easy on herself or else he could make her suffer. He grabbed at her breasts with both hands. He then moved one of his hands to her vagina, rubbing it on the outside of her underwear with his fingers.[4]
[4]This act formed the factual basis of the charge of sexual assault.
The applicant removed the victim’s underwear. While kneeling next to her, he inserted two or three of his fingers into her vagina and penetrated it for a short period of time.[5] He used his other hand to undo his zipper, before exposing his penis. He grabbed her hand and forced her to hold his penis. He told her that, if she did not hold it, he would make her ‘suck it’. She began masturbating his penis with her hand. During this time, the applicant struggled to obtain an erection.
[5]This act formed the factual basis of the first charge of rape.
At some point after removing his fingers from the victim’s vagina and the victim having let go of the applicant’s penis, he attempted to insert his penis into her vagina. However, he was unable to penetrate it as his penis was flaccid. In an attempt to achieve an erection, he rubbed his penis over the top of her vagina. She begged him to use a condom, telling him that there were some in her drawers. He appeared to consider this suggestion; but, once she realised that wearing a condom could mean that the applicant could not later be identified, she told him not to worry about it. He said to her, ‘You’re a hot girl to fuck.’
The applicant placed his hands behind the victim’s head, forcing her down towards the applicant’s penis. He forced his penis inside her mouth and made her perform oral sex for some time.[6] He removed his penis from her mouth and pushed her backwards. He rubbed his penis against her vagina again and inserted the head of his penis into the opening of her vagina.[7] His penis was still not fully erect.
[6]This act formed the factual basis of the second charge of rape.
[7]This act formed the factual basis of the third charge of rape.
The applicant again directed the victim’s head towards the applicant’s penis and inserted it into her mouth by force. His penis became fully erect. He pushed the victim onto her back and inserted his penis into her vagina and had vaginal intercourse with her.
About a minute later, the applicant ejaculated inside the victim’s vagina. He waited a moment before removing his penis. He asked her for a tissue. She handed him a toilet paper roll and used some of it to begin cleaning herself. He said, ‘no, no’, and instructed her to lie down. He began wiping her.
The applicant asked the victim to give him her driver’s licence. She remembered having found a licence earlier and asked him if she could get her glasses to look for it, but he refused. Eventually, she managed to find the licence, which was in the name of ‘Rebecca Barnes’, and handed it to him.[8]
[8]This act formed the factual basis of the charge of theft.
Immediately after receiving the licence from the victim, the applicant asked her if she understood the implications of what had just happened. He told her that he had all of her details and that he would find her if she went to police. She said that she would not and that she wanted the ordeal to be over.
The applicant asked the victim where the bathroom was and told her to clean herself. He followed her to the adjacent bathroom and watched as she used some toilet paper, which she flushed down the toilet. He instructed her to urinate and remained in the doorway as she sat on the toilet and urinated. She told him that she could not continue urinating as she was too scared. He then directed her into the shower. She cleaned her lower body under the shower and got out. He told her to get back in and wash her whole body. She complied.
After washing herself for a short time, the victim noticed that the applicant had returned to the bedroom. She followed him into the bedroom and saw him removing the bottom-fitted sheets.[9] He told her that she should get the window fixed. He also apologised and said that it was, ‘just something I do’. He gave her a hug and asked her if she forgave him. She did not reply. He instructed her to return to bed and go back to sleep. She complied and lay still in the bed as he climbed out of the window, before leaning back and pulling the curtains closed. She remained in bed for a minute, shaking. At about 5:30 am, she closed the window, ran to the bedroom of one of her housemates and reported the incident to police. She found a pubic hair of the applicant’s in her mouth.
[9]This act also formed the factual basis of the charge of theft.
Later that morning, at 9:15 am, the victim was medically examined. There were no reported signs of physical injury.
Events following the incident
On 16 April 2016 at 5:00 am, the applicant was randomly intercepted by police while driving his vehicle out of the street where the victim resided. He provided a licence in his name and indicated that he was on his way to work at the Monash Medical Centre. Later that afternoon, the applicant attended the Ikea store in Springvale and purchased a white bedsheet, for which he paid in cash.
On 23 April 2016, the applicant attended the same store and again purchased a black bedsheet, for which he paid in cash.
On 26 April 2017, the applicant delivered to the victim’s house a parcel addressed to Rebecca Barnes. The parcel was found by one of the victim’s housemates on the front doorstep and handed to police. A typed address was taped to the front of the cardboard box. It contained a printed note and two new bedsheets of the same brand as the one that he had taken from the victim’s bedroom on the day of the offending. The printed note read, ‘Dear Rebecca Barnes, please forgive me. I know how scared and angry you really are and what you must be going through at the moment. Just want you to know how sorry I am for all that happened between us.’
At that time, the sheets were sold by Ikea exclusively. After reviewing CCTV footage from the stores, police captured still images of the applicant. Those images were placed on the Victoria Police Facebook page on 11 May 2017, with an appeal to the public for assistance in identifying the applicant.
On 12 May 2017, members of the public identified the applicant from the images. Police attended the applicant’s place of employment at the Monash Medical Centre, where he was working at the time. The applicant provided police with a DNA sample and had a conversation with investigators, part of which was recorded. During the conversation, the applicant said that he could not tell the investigators anything about a sexual assault under investigation because he knew nothing about it. He then asked about the penalty that he was facing and asked to have a conversation with one member alone, maintaining that he did not know what the investigators were talking about. Other members left the room. The applicant then said to the remaining investigator: ‘Yes, I did what you are saying, sexual harassment.’ He continued:
‘I don’t want to be an asshole and avoiding and yes, I felt guilty about it. The thing is, I make fully a stupid decisions there, just out of a five second thing. On that day I have a walk because that’s why I normally do and that day I decided to have a different route and then I came across where the house and I saw the windows are open and everything and it’s on my conscience. That’s why I should have mind my own business and everything. See her flap was open and I just put my hands over and that’s when I saw the girl was sleeping there. At first I thought see what’s valuable. I jumped in to grab whatever valuable. Then I realised the girl was in, you know, I couldn’t help myself. She was lying there and everything. She was nice girl and everything. I was forcing her a bit to have, you know, quick sex.’
The applicant was arrested and participated in a record of interview in which he made some admissions.
The applicant also provided police with a false address in Springvale South. Later, police executed a search warrant at his home in Noble Park. When police entered the premises, the applicant directed them to a cupboard above the fridge where they found an envelope containing the driver’s licence of Rebecca Barnes. His fingerprints were subsequently identified on the label and note in the parcel and his DNA was found in swabs taken from the victim’s vagina and right breast and from the printed note. The applicant was arrested that day and remanded.
Personal circumstances of the applicant
The applicant was 30 at the time of the offending. He lived with his partner and two young children aged 6 and 2. He had been employed in food services at the Monash Medical Centre.
The applicant was born in Vietnam. He was left in his father’s care as his mother and older brother travelled to Australia. The applicant’s father had a second family with another partner and, during this period, the applicant had little stability and care. The applicant moved to Australia at the age of 12 to live with his mother, who had five children with a new partner. The applicant had a good relationship with his mother. He had been in a relationship with his current partner since 2005. A report prepared by Mr Patrick Newton, a forensic psychologist, said that the applicant had reported that the relationship with his partner was happy and stable, made difficult only by financial stress.
The applicant completed Year 12 in Melbourne. He dropped out of aerospace technology studies at RMIT University after six months and worked in a number of unskilled positions. In 2005 until the time of his arrest, he had been employed with Monash Health in food preparation.
The applicant has a history of drug and alcohol abuse. He had smoked cannabis and used ecstasy, amphetamines and ice at different times. According to Mr Newton’s report, drug use gave the applicant a sense of euphoria, elevated his mood, resulted in behavioural hyperactivity and boosted his libido. The applicant also engaged in binge drinking when using drugs, typically on a monthly basis. He told Mr Newton that, on the evening before the offending, he had been drinking heavily and had consumed ice, which left him feeling excited and unable to sleep.
Sentencing remarks
The sentencing judge referred to a victim impact statement tendered on the plea and read out aloud by the victim. He said:
[The victim’s] composure and dignified balance in the face of such trauma is admirable and is to her credit. It is clear the impact of your crime has been profound and significant. She has been diagnosed with post-traumatic stress disorder. She is experiencing depression and anxiety at severe levels.
This experience has changed her life and perspective and has not only been an invasion of her bodily integrity which she described as the loss of her physical security, but the forceful removal of her security, confidence, strength and energy, leaving her vulnerable and feeling unsafe and hyper vigilant in every aspect of her life, increasing her inability socially, her isolation and rage.
She impresses as a young woman of resolve and spirit who partook of this process with courage, even some hope. In this context, the court must take into account this impact and particularly in cases such as these and accord appropriate recognition to the notion of social rehabilitation.
The response of the court can facilitate the process of social and personal recovery by the recognition of the nature and significance of the wrong done of the real trauma which has befallen that person as a consequence of your crime. The court must balance values and considerations represented in the sentence which of course must take into account all relevant sentencing principles including factors in mitigation, but still achieve a sense of justice which is of indication of community values and expectations.[10]
[10]Sentencing remarks [39]–[42].
The sentencing judge described aggravated burglary, rape and making a threat to kill as ‘very serious crimes’.[11] On two of the rape charges, in particular, the judge said:
Charges 5 and 6 of rape are also representative counts which is an aggravating circumstance representing five distinct instances of penetration and three different kinds forming part of a pattern of repetitive conduct, not an isolated act which more properly describes the offending in its full circumstantial context.[12]
[11]Ibid [43].
[12]Ibid [44].
The sentencing judge also said that the offending was aggravated by the applicant not wearing a condom and ejaculating inside the victim, which heightened not only the adverse effect of the conduct on the victim, but also the applicant’s moral culpability.[13] The judge mentioned the ‘indignities’ imposed on the victim by the applicant ordering her to shower and urinate at his request, ‘with a view no doubt to endeavour to cancel biological traces from her body’.[14] He described this series of events as a humiliating scenario in which the applicant showed a ‘callous disregard’ for the victim.[15] The judge continued:
This offence goes to the heart of the freedom of the individual to be safe in their home, particularly her bedroom. It is a frightening offence which rightfully strikes fear in the minds of victims, affects their feelings of security in the present and the future.
Rape injures and debases the foundational values of dignity, personal integrity, respect and protection, particularly of its female members, and the deterrent value of the sentence must be substantial so as not an emotive exercise, but because your moral culpability and criminality is high in the circumstances.
These acts, their type, duration and repetition in the home of the victim accompanied by threats and humiliation arise, in my view, perhaps because of the situation of entry for other purposes.[16]
[13]Ibid [45].
[14]Ibid [46].
[15]Ibid.
[16]Ibid [47]–[49].
The sentencing judge did not accept that the acts of rape were spontaneous.[17] Moreover, the relatively short duration of the offending did not reduce the applicant’s culpability.[18] The judge also had regard to the age and ‘youthfulness’ of the victim.[19]
[17]Ibid [50].
[18]Ibid [51].
[19]Ibid [56]–[59].
On the applicant’s post-offence conduct, the sentencing judge said:
Even your post-offence conduct which was said to affect the moral culpability and be a signal feature of your remorse, in my view should and can be viewed from a different perspective. A totally misguided and inappropriate understanding of the impact of your offending, of your culpability, devoid of any consideration for the effect on the victim of your presence in her street and near the premises where you committed the offences, to effect reparation and replacement of items in the hope of avoiding the consequences.
You wrote in the note that you left with the sheets, ‘How sorry I am for all that happened between us.’ Nothing happened between you. You ruthlessly and callously sexually assaulted an innocent victim. There was no reciprocity of any kind.
This is carried forward in the record of interview which police conducted a short time later where you expressed regret and feeling sorry but continued to deny forcing her into oral sex, penetrating her vagina, relying on a lack of resistance as some corroboration for some perceived willingness on her part about which you are fundamentally wrong.
To even suggest that this is a suggestion of ‘forgive and forget’ is not just insulting to common decency, but staggeringly disingenuous on your part, to an extent that despite verbally expressing remorse, such emotion can be seen to be significantly qualified by these answers in my view.[20]
[20]Ibid [52]–[55].
The sentencing judge described the offence of aggravated burglary as ‘a serious violation of the sanctity of the home’.[21] He said:
Such entry per se causes not just loss of property often, but emotional distress, fear, ongoing uneasiness and is a clear social evil from which the community looks for protection from the court, particularly of late where such entries have become prevalent and are a common occurrence. These invasions strike at the heart of domestic security and the right of every citizen to feel safe at home.[22]
[21]Ibid [59].
[22]Ibid.
The sentencing judge said that general deterrence ‘must be the predominant purpose of the sentence’.[23] He said:
General deterrence must be the predominant purpose of the sentence and in my view in these circumstances, just punishment and denouncement requires that the scope of mitigation by reference to your personal circumstances be limited and that when considered together with what conduct proceeded once you had entered, must carry a degree of cumulation in recognition of the separate and discreet nature of this offence and indeed each of the other offences which add a layer of criminality to the main offending.[24]
[23]Ibid [60].
[24]Ibid.
The sentencing judge also took into account the applicant’s plea of guilty, which he said was taken at the first available opportunity.[25] The judge also accepted that the plea was ‘accompanied by some remorse’, which was expressed more fully after the record of interview.[26] He noted that the applicant’s co-operation with police and his admissions were ‘qualified to an extent’ and that the applicant’s post-offence conduct ‘to some extent was motivated by a sense of guilt’ about his behaviour.[27]
[25]Ibid [61]–[62].
[26]Ibid [63].
[27]Ibid.
The sentencing judge had regard to the applicant’s good character and the fact that the applicant had no prior convictions. However, the judge added:
Although your lack of criminal history seems to be an indication that specific deterrence may be of lesser consideration in disposing of this matter, a number of factors militate to a cautious consideration such as the qualifications to your guilt in the record of interview, your ill-conceived attempts at destroying evidence including the seizure of the bed sheets, the admissions made only after the likely penalties were discussed and a month had passed since the offending.
Despite expressions of remorse and the note left in the sheet and in the letter written to you to the court, your main concern seems to be with your predicament. While expressing deep sorrow and remorse and hope for a chance to make amends, the focus remains on you to my mind.[28]
[28]Ibid [65]–[66].
The sentencing judge said that the report prepared by Mr Newton placed the applicant at a low level of recidivism.[29] However, the judge noted that the applicant’s chronic social skills deficit, his drug and alcohol abuse and poor insight into his offending and its likely effects were all identified as elevating the risk of recidivism to ‘moderately high’.[30] In the event, the judge considered specific deterrence to be a relevant consideration.[31] On the applicant’s prospects of rehabilitation, the judge said:
[A]lthough your prospects of rehabilitation are probably reasonable, the completion of a comprehensive sex offender treatment program would be the single most important factor in the prevention of re-offending, says Mr Newton. It was submitted rehabilitation should be given prominence in sentencing you.[32]
[29]Ibid [67].
[30]Ibid [68].
[31]Ibid.
[32]Ibid [69].
The sentencing judge took into account the applicant’s personal circumstances, which are set out above.[33] He did not accept that the applicant was a youthful offender.[34] The judge also described the applicant’s drug and alcohol history as ‘problematic’[35] and as having led to risky behaviour.[36]
[33]Ibid [71]–[84].
[34]Ibid [70].
[35]Ibid [77].
[36]Ibid [82].
On the applicant’s mental health, the sentencing judge said:
You did not evince any emotional disturbance or depression or anxiety. You do not manifest mood disorders or adjustment disorders or psychosis. You demonstrate neither learning nor cognitive deficits. You have not developed dependency on the substances you abuse.
…
You have poor social skills tending to the superficial while stable risk factors indicate a moderate low risk of reoffending. I repeat dynamic factors such as your social skills defects, drug/alcohol abuse and poor insight elevate the risk to moderate high making participation in a specialist treatment program for violent sex offenders an imperative.
Mr Newton does not believe your substance use would have obscured your intent to commit the offending or would have rendered you unable to appreciate the wrongfulness of your actions. Your social deficits are not such to raise to the level of a personality disorder. He recommends a longer than usual period of supervision in the community upon your release. I take this report into account.[37]
[37]Ibid [81], [83]–[84].
The sentencing judge also summarised the content of several reference letters that were provided to him on behalf of the applicant. He said:
Laiti Tui Nu wrote of your friendship and generosity. Your brother, Noc Na Peter Nguyen wrote of you as a kind hard working man whose offending is out of character. Shamaran Puv is a friend from school, writes of your simplicity and caring nature [sic]. Your older brother Kiet Twan Carl also wrote of your good nature and his shock at this offending. Your younger sister Jenny Nguyen also wrote a comprehensive letter of support. So did Anh Phan, your friend who writes of you as a quiet and helpful man. Tuwi Duong also wrote of your generosity, as did Duan Zuan Hai.
Your mother wrote a letter also. She wrote of your embarrassment, shame and remorse. Your partner Lee also wrote a letter highlighting the closeness of your family and the hardship which your absence will mean for your children.
Another of your brother’s [sic], Andrew, wrote on your behalf, of your kindness and remorse. Your younger sisters, Lisa and Anna also provided letters which highlights the future rehabilitative prospects.
A letter by Carlos Lay was also received, your brother-in-law, who wrote of the out of character nature of your offending, but like many of the letter writers, you did not discuss or disclose the nature of the offending and indeed, you did not do so with Mr Newton.
I take each of these letters into account and accept you have expressed some remorse and regret to each of the writers.[38]
[38]Ibid [85]–[89].
Before sentencing the applicant, the sentencing judge said that he had also considered the following material:
[t]he cases that were handed up, as well as the Sentencing Advisory Council Snapshot no. 175, as well as the table prepared by the JCV, the Judicial College of Victoria, as an overview of rape sentences in the Court of Appeal from 2006 to the present, as well as the table of cases handed to the court by the defence of comparable cases reading each of the cases referred to.[39]
[39]Ibid [91].
Proposed grounds of appeal
The applicant has proposed the following four grounds of appeal:
1.The sentence was manifestly excessive in all the circumstances in that the sentence was outside the range of sentences for such offending and in particular, the head sentence was manifestly excessive, the cumulation was manifestly excessive and the minimum term was manifestly excessive.
2.The learned trial judge was in error in aggregating my sentence on Counts 3 and 4 as a ‘serious sexual offender.’
3.The learned trial judge failed to take into account the totality and proportionality principles in sentencing me.
4.The learned sentencing judge gave no weight to the level of family and social support in assessing my prospects of rehabilitation.
The applicant’s submissions
In relation to the proposed ground of manifest excess, the applicant contends that, given that the offending constituted ‘a single episode of rape by a single rapist’, the sentence is at the highest end of the range for the offence of rape. In support of this contention, the applicant refers to the relevant Sentencing Snapshot prepared by the Sentencing Advisory Council.[40]
[40]See Sentencing Advisory Council, ‘Sentencing Trends for Rape in the Higher Courts of Victoria 2009–10 to 2013–14’ (Sentencing Snapshot No 176, June 2015).
In order to understand the applicant’s second proposed ground of appeal, it is necessary to set out the following passages from the Sentencing remarks:
A term of imprisonment will be imposed on each of Charge 2-6 and you stand to be sentenced and I sentence you as a serious sexual offender on Charges 3, 4, 5 and 6.
No disproportionate sentence was sought and will be imposed but I will sentence in accordance with the principles of cumulation and protection of the community as primary intentions.
My sentence will bring into operations the provisions of the Sex Offender Registration Act 2004 and pursuant to that Act you will be registered for 15 years.[41]
[41]Sentencing remarks [92]–[94].
After the sentence was passed, the following exchange took place between the sentencing judge and the prosecutor:
Counsel:I am not sure if I heard Your Honour correctly in terms of the part 2A of the Serious Sexual Offender Act. I am not sure, I missed what Your Honour said about which charges he was to be sentenced as a serious sexual offender. I just want to confirm that we got that right.
Judge: For 3, 4, 5 and 6.
Counsel:In my submission, Your Honour, so as to be clear, as I understand the Act, he has to be sentenced to a term of imprisonment on two charges before he becomes eligible to be sentenced a serious sexual offender on the remainder.
Judge:Well I have sentenced him on Charges 1 and 2. Are they to be sexual offences, is that what you are saying?
Counsel: Yes.
Judge:All right. Well that then will mean that he is to be sentenced as a serious sexual offender on Charges 5 and 6.
Counsel: That is correct, Your Honour.
Judge: Yes. Sorry, I have obviously misstated that.[42]
[42]Ibid [107]–[113].
The applicant contends that, whilst the sentencing judge amended his remarks to refer to charges 5 and 6, the judge did not amend the sentence that he had imposed on the applicant to reflect those amended remarks.
In relation to the third proposed ground of appeal, the applicant contends that the sentencing judge failed to take into account the principles of proportionality and totality. In this regard, the applicant points to the fact that all of the offences occurred on a single occasion and that the sentencing judge ordered cumulation on all charges except for the charge of theft.
In support of his final proposed ground, the applicant simply refers to the letters that were tendered on the plea that spoke of the applicant’s friendship and good character.
During oral argument, the applicant first placed particular emphasis upon his contention that there had been specific sentencing error in that his conviction on the first two charges could not have resulted in his being described as a serious sexual offender within Pt 2A of the Sentencing Act 1991. Secondly, the applicant said that the sentencing judge had failed to give proper regard to his prospects of rehabilitation and had given too much weight to the protection of the community.[43]
[43]The applicant referred to DPP v Hopson (a pseudonym) [2016] VSCA 303.
Analysis
In my opinion, leave to appeal should be refused.
The offending was particularly dreadful; it was, to adopt the description given by counsel for the respondent, ‘the stuff of nightmares’. At the plea hearing, counsel for the applicant correctly submitted that the gravity of the offending in this case clearly fell at the upper end on the spectrum of criminality.
The sentencing judge imposed a sentence of eight years’ imprisonment in respect of each of the convictions for rape. The first form of rape was digital; the second oral; and the third penile. The various forms of rape are not to be distinguished. In R v Brown,[44] Chernov JA (with whom Eames JA and O’Bryan AJA agreed) said:
The suggestion that digital rape falls at the lower end of the scale applicable to that crime has been rejected by this court in R v Schubert and in R v Sheriff. The offence of digital rape is considered by Parliament to be just as serious as penile rape given that it has imposed the same maximum penalty of 25 years’ imprisonment for the offence. Clearly, both digital and penile rape are inherently violent acts which the community will not tolerate and, even without accompanying violence, digital rape, as an offence, cannot be treated as a less serious offence than penile rape.[45]
Moreover, the original rape in this case was particularly confronting. It involved threats and coercion by the applicant in the face of resistance by the victim. It set the scene for the two subsequent rapes.
[44](2002) 5 VR 463.
[45]Ibid 478 [57] (citations omitted).
The objective gravity of the offending was high. There were five separate acts of rape; the conduct was repetitive and prolonged; the applicant exposed the victim to the risk of pregnancy; and he threatened and further humiliated her after the commission of the rapes by instructing her to lie down so that he could wipe her vagina, urinate and, on two separate occasions, have a shower and clean herself.
In my opinion, there was no specific sentencing error on the part of the sentencing judge. It is true that the sentencing judge originally identified the convictions on charge 1 and charge 2 as giving rise to the conclusion that the applicant was a serious sexual offender within s 6B of the Sentencing Act 1991. That was a mistake as neither of those offences was a ‘sexual offence’ within cl 1 of Sch 1 of the Act. However, the sentencing judge immediately recognised his error and based his conclusion that the applicant was a serious sexual offender on the convictions for charges 3 and 4. The sentencing judge then correctly applied the relevant provisions of Pt 2A. Section 6E provides:
Sentences to be served cumulatively
Every term of imprisonment imposed by a court on a serious offender for a relevant offence must, unless otherwise directed by the court, be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed on that offender, whether before or at the same time as that term.
As is plain, the sentencing judge ‘otherwise directed’ within s 6E. Having stipulated that the sentence on charge 6 was the base sentence, the sentencing judge ordered that there be only six months’ cumulation on each of charge 4 and charge 5.
The sentencing judge considered the principles of totality and proportionality. In Bogdanovic v The Queen,[46] Ashley and Weinberg JJA decided that the sentence imposed by a sentencing judge was ‘manifestly excessive’. In resentencing the offender in that case, they directed themselves as follows:
[46][2011] VSCA 388.
The totality principle requires that where an offender is sentenced for a number of separate offences, the judge must ensure that the total effective sentence does not exceed that which is a ‘just and appropriate measure of the total criminality involved’. The totality principle is said to ‘defy precision either of description or implementation’. Sometimes it is described as a requirement of ‘just deserts’, and whether the total effective sentence offends that principle is often a ‘matter of impression’. A convicted offender should be sentenced not simply and indiscriminately for every separate criminal act, but for what in the broad sense can be characterised as his or her overall criminal conduct.
Where a number of technically separate offences have been committed, but they can fairly be described as ‘parts of a multi-faceted course of criminal conduct’, it will often be appropriate to order substantial concurrency.
Closely related to the totality principle is the requirement that the sentencing judge avoid the imposition of a crushing sentence. In R v MK, Chernov and Nettle JJA said:
Views may differ as to whether any given sentence is crushing. The test most often applied is whether the sentence is of such a length that it would provoke a feeling of helplessness in the applicant when and if released or whether it connotes the destruction of any reasonable expectation of useful life after release. But length of sentence is not always determinative and there are cases in which the length of a sentence may almost certainly have those effects and yet still not be manifestly excessive. In the end, as so often has been observed, it is a matter of impression and there is little that may usefully be said about it.
The problem is exacerbated, however, when the sentencing judge must have regard not merely to totality in relation to the offences for which the offender is being sentenced, but also other periods of incarceration in respect of earlier and unrelated offending.[47]
[47]Ibid [63]–[66] (citations omitted).
The sentencing judge also referred to the principle of totality during the plea hearing. Moreover, the amount of cumulation ordered in respect of charges 3, 4 and 5 was modest.
I would also reject the contention, advanced in written submissions, that the sentencing judge gave no weight to the applicant’s level of family and social support in assessing his prospects of rehabilitation. Plainly, the judge took into account a large number of reference letters which highlighted the applicant’s prior good character, remorse and future rehabilitative prospects. There is no basis for concluding that the judge gave no weight to this material in his assessment of the applicant’s prospects of rehabilitation.
Conclusion
I would refuse the application for leave to appeal against sentence.
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