Tutchell v The Queen
[2018] VSCA 269
•24 October 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0016
| KANE TUTCHELL | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | McLEISH and NIALL JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 10 October 2018 |
| DATE OF JUDGMENT: | 24 October 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 269 |
| JUDGMENT APPEALED FROM: | [2017] VCC 1694 (Judge Lawson) |
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CRIMINAL LAW – Appeal – Sentence – Non-parole period – Sentence on two counts of rape 8 years with non-parole period 5 years 9 months – Sentencing judge stating non-parole period fixed shorter than would otherwise have been due to prospects for rehabilitation – Whether judge manifestly failed to give effect to stated intention – Non-parole period 72 per cent of head sentence – Ratio between non-parole period and head sentence not determinative – Wallace v The Queen (2012) 35 VR 520; Kumova v The Queen (2012) 37 VR 538; Abdou v The Queen [2015] VSCA 359; Hill v The Queen [2004] VSCA 116; Dosen v The Queen [2012] VSCA 307, considered – Leave to appeal refused, appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr D A Dann QC with Mr B W Johnston | Balmer & Associates |
| For the Crown | Mr B L Sonnet | Mr J Cain, Solicitor for Public Prosecutions |
McLEISH JA
NIALL JA:
On 19 September 2017, the applicant pleaded guilty in the County Court to two charges of rape[1]. Following a plea hearing over two days, he was sentenced on 15 November 2017 to a total effective sentence of 8 years’ imprisonment, with a non-parole period of 5 years and 9 months.
[1]Crimes Act 1958 s 38. The maximum penalty is 25 years’ imprisonment.
The applicant seeks leave to appeal on a single ground, alleging that the sentencing judge failed to give effect to her stated intention to impose a non-parole period shorter than would otherwise have been appropriate. For the reasons that follow, leave to appeal should be refused.
Circumstances of the offending
At the time of the offending, the applicant was aged 23 and the complainant was aged 28. The complainant is a citizen of Germany who was on holiday in Australia. The applicant and the complainant were not known to each other prior to the offending.
On 2 March 2016, the day after she arrived in Melbourne, the complainant was celebrating her 28th birthday with a friend. After consuming a large amount of alcohol at various venues, they arrived at a bar located on Spencer Street in Melbourne known as U-Bar, where the complainant continued to consume alcohol, danced and sang karaoke. She had little to no memory of the events at U-Bar. However, while there she met the applicant. They left the establishment together in a taxi and travelled to an address in Lara where the applicant was living.
The applicant stated in his record of interview that he and the complainant had consensual sexual intercourse at his house in Lara. The complainant had no memory of this sexual activity, which is not a charged act.
The complainant’s next memory was being at an automatic teller machine in the company of the applicant. She did not know who he was or where they were. She was unable to withdraw money from the machine as she could not remember her PIN.
The applicant took the complainant by the upper arm and led her away from the ATM and shopping strip. He took her to a nearby park, where it was dark. The applicant became aggressive and threatening. He told her that she had to ‘suck his dick and make it hard’ or he would kill her and bury her in a field. The complainant complied and performed oral sex on the applicant without consent, in fear of what might happen to her if she refused (charge 1, rape).
The applicant became angry after he was unable to obtain an erection. He took the complainant by the arm and led her to his house. The applicant took the complainant to his bedroom and undressed her. He then had penile/vaginal intercourse with her without using a condom. The complainant was not consenting but acquiesced out of fear of the earlier threats (charge 2, rape). During the intercourse, the applicant slapped the complainant in the face a number of times, causing injury.
The applicant then fell asleep and the complainant took her clothing and possessions, then climbed outside through a window while still naked. She jumped over a fence, dropping some of her possessions, before partially dressing herself and running some distance looking for someone to help her. She came across a man who was up early getting ready for work. He noticed that the complainant was partially dressed and distraught. He called the police and waited with her until they arrived. The complainant was incoherent and shaking, and was repeatedly saying that ‘he had raped [her]’, and ‘he would kill [her]’.
Police attended and the complainant was taken for medical treatment. On examination, the complainant was noted as ‘tired and overwhelmed’, and suffering from a number of injuries including bruising and tenderness to her face and vagina.
The police located and arrested the applicant, who was still in bed, at about 9.50am on 3 March 2016. During his record of interview with police, the applicant agreed that he had met the complainant at U-Bar and said that he had taken her back to his house for consensual sex. He told police that the complainant had asked him to slap her and he did so on one occasion, hard enough to upset her.
The applicant ran a contested committal hearing which involved cross-examination of the complainant. The matter was listed for trial in the County Court on 2 October 2017. The applicant entered pleas of guilty on 19 September 2018.
Plea hearing
In respect to the applicant’s personal circumstances, defence counsel submitted at the plea hearing that while the applicant had a loving and caring childhood, there was a degree of instability. Throughout the applicant’s early years, his parents had a difficult relationship and they separated when he was aged 10 or 11. The applicant left school before the end of year 10 and completed a certificate in horticulture, a general construction traineeship, and a scaffolding course. Between the ages of 18 and 23, he worked in the scaffolding industry and at an abattoir. He was described as an avid football and cricket player.
Counsel’s instructions were that the applicant began drinking at the age of 15, and over the years had engaged in binge drinking but had no long-term addiction to illicit substances. The applicant resided with his father at the time of the offending, but had since moved to live with his mother and step-father. Several family members supported the applicant in court at the plea hearing. Counsel described the family as hardworking and law-abiding, the applicant being the only member with any kind of criminal history.
Counsel submitted that the applicant’s criminal history was limited. It included two charges of theft that were dealt with in the Children’s Court, and one prior matter for violence (including unlawful assault, affray, intentionally causing injury and recklessly causing injury). The latter offending involved a fight with others at a taxi rank and arose in the context of alcohol use. The applicant was convicted and received a community correction order (‘CCO’) with a condition to complete 125 hours of unpaid community work. He breached the CCO when unable to complete the work hours due in part to a football injury and work commitments. The order was subsequently extended and the applicant completed it.
In respect to the offending, counsel submitted that the applicant had been drinking excessively and was highly intoxicated. The offending was said not to have been premeditated. It was conceded that the offences were serious examples of rape that would have had a significant impact upon the complainant. The complainant was vulnerable and the offending would have been terrifying for her. Although she was injured, it was submitted that the injuries were not serious or long-lasting and no weapon was used.
Counsel noted that, since being charged with these offences, the applicant had made two attempts on his own life, the first by an overdose of medication in January 2017 and the second by entering upon a train track the day after the committal hearing.
It was submitted that the applicant’s plea of guilty was a significant matter. It had saved the court the time and cost of a trial, and spared the witnesses the inconvenience and trauma of giving evidence at trial.
A number of supportive references were placed before the court, including one from an uncle, present in court, who had employed the applicant in the past and was willing to do so again on his release.
Counsel submitted that the applicant was still youthful, and therefore rehabilitation was an important factor to be taken into consideration. Due to his stable supports in the community, stable housing, employment history, and limited criminal history, it was submitted that the applicant had good prospects for rehabilitation. Given the continuing nature of the offending, counsel submitted that there should be a high degree of concurrency between the sentences on the two charges.
Counsel noted that it was likely that the applicant would serve the entirety of his sentence in protection due to the involvement of one of his family members in an unrelated matter.
Counsel conceded that an immediate term of imprisonment was the only sentencing disposition open. He submitted however, that ‘a longer than usual … parole period’ ought to be imposed to allow for a ‘long period of supervision’ in the community, by reason of the applicant’s youth and his ‘stable supports’.
Sentencing remarks
The sentencing judge regarded the applicant’s offending as ‘objectively very serious’.[2] She found that the applicant ‘preyed on a drunk, vulnerable woman’ and took advantage of her for his own sexual gratification. She characterised his actions as violent and aggressive.[3] The complainant had suffered dramatically as a consequence of the offending. The judge had regard to a letter in which the complainant stated that her trust in people had been destroyed and that she suffered nightmares and anxiety.
[2]DPP v Tutchell [2017] VCC 1694 [23].
[3]Ibid.
The judge found that although being intoxicated offered an explanation for the applicant’s offending, it in no way excused it. In the past, the applicant had acted aggressively and impulsively while intoxicated, as reflected in his criminal history. The judge was troubled that the applicant had not learnt from his past experience about how being intoxicated affected his behaviour. However, the applicant’s prior criminal record was limited and did not include sexual offending.
The judge described the applicant’s personal history and background. She said that he had a loving and nurturing childhood, and was well supported by his family members. She noted the training qualifications he had received and stated that between the ages of 18 and 23 he had an ‘excellent work history’.[4]
[4]Ibid [38].
The judge said that she took into account the applicant’s plea of guilty well before the trial. She said that there was real utility in the plea. She also accepted that the plea was evidence of genuine remorse. Written references tendered in support of the applicant described him as having insight into his offending and being remorseful.
The judge found that the applicant’s prospects of rehabilitation were reasonable, given that he had pleaded guilty, demonstrated insight into the offending and remorse, and had a nurturing and supportive family willing to support him upon his eventual release. But without a proper risk assessment, the judge said that she was unable to reach a view as to his risk of re-offending.
The judge’s sentencing remarks continued:
In formulating the appropriate sentence I have fixed a non-parole period shorter than it would otherwise have been because of your prospects for rehabilitation, having regard to your relative youth, stable supports in the community and your prospects generally.
You require supported transition back into the community to further facilitate and optimise your rehabilitation. That provides the best protection for the community in the future. [5]
[5]Ibid [53]–[54].
Finally, the judge took into account concerns for the applicant’s personal safety due to a family member’s involvement in an unrelated matter, which would make the applicant’s time in custody more onerous.
Proposed ground of appeal
The applicant seeks leave to appeal against sentence on a single ground:
The Learned Sentencing Judge erred in failing to give effect to her intention to impose a non-parole period that was shorter than would otherwise have been appropriate.
Applicant’s submissions
Senior counsel for the applicant submitted that it could be seen from the applicant’s good prospects of rehabilitation, his relative youth and the stable supports available to him including after his sentence was served, that the non-parole period imposed by the judge failed to reflect her intention as expressed in [53] of the sentencing remarks.[6] It was submitted that the non-parole period, representing almost 72 per cent of the head sentence, did not offer a meaningful reduction from the kind of non-parole period that might otherwise have been fixed.
[6]See [28] above.
Counsel placed reliance on this Court’s decisions in Hill v The Queen[7] and Abdou v The Queen.[8] It was submitted that these cases showed that the fixing of a non-parole period at the higher end of the range of available periods, as was said to have been done in this case, indicated a failure to give effect to an intention to fix a short period than would otherwise have been appropriate.
[7][2004] VSCA 116 (‘Hill’).
[8][2015] VSCA 359 (‘Abdou’).
Respondent’s submissions
The respondent submitted that the question for this Court is whether it was reasonably open for the sentencing judge to fix the non-parole period that she did, unless it can be shown that the judge ‘manifestly failed’ to give effect to her stated intention.[9] That could not be established merely by pointing to the fact that the non-parole period was about 72 per cent of the head sentence.
[9]Dosen v The Queen [2012] VSCA 307 [8] (Maxwell P and Redlich JA) (‘Dosen’).
Counsel for the respondent pointed out that the judge had only regarded the applicant’s prospects as ‘reasonable’ and that she had found that he presented a real risk to the sexual safety of one or more persons, or of the community, for the purposes of deciding whether to make an order under the Sex Offenders Registration Act 2004. It was submitted that the period fixed in this case was reasonably open to the judge and that she had not merely expressed an intention to fix a shorter period, but had indicated in her sentencing remarks that she had done so. It was submitted that the period fixed was not high in the available range, and that it could be inferred from the fact that the period was not rounded to a multiple of 6 months that it had been adjusted to take it outside the normal pattern of non-parole periods for sentences of this length.
Senior counsel for the applicant, in reply, accepted that the fact that the non-parole period was not a multiple of 6 months was unusual. However, he submitted that even if this reflected some reduction in the period on account of the applicant’s prospects, it was not a meaningful reduction and it failed to give effect to the judge’s intention as a result.
Analysis
In Wallace v The Queen this Court summarised the general principles governing appellate review of a non-parole period as follows:
1. The non-parole period is the minimum term which justice requires be served.
2. There is no ‘usual’ non-parole period.
3. The question to be determined is whether, in all of the circumstances of the case and of the offender, it was reasonably open to the sentencing judge to fix the non-parole period which the judge fixed.
4. Exceptionally, the Court may be persuaded that the non-parole period manifestly failed to give effect to the sentencing judge’s stated intention, in which case error is established and the sentencing discretion re-opened.[10]
[10](2012) 35 VR 520, 521 [2] (Maxwell ACJ and Buchanan JA) (‘Wallace’).
The Court in Wallace stated that since there is no ‘usual’ non-parole period, the use of phrases such as ‘shorter than usual’ and ‘longer than usual’ is unhelpful. It was preferable, the Court said, for sentencing judges to use phrases such as ‘shorter than it would otherwise have been’.[11]
[11]Ibid 523 [16].
In Wallace the Court considered the fixing of a non-parole period which represented 69 per cent of the head sentence, in circumstances where the sentencing judge had stated an intention to order ‘a much longer than usual’ period of parole. The judge also described the parole period he had fixed as ‘significant’. The Court concluded that it was clear that the judge regarded the period he had fixed as appropriate to the case and that the case was ‘not one of the exceptional cases where the result arrived at manifestly fails to achieve the stated intention of a sentencing judge’.[12]
[12]Ibid 524 [18].
In Kumova v The Queen Nettle JA, with whom Redlich and Osborn JJA agreed, referred to criticism of the use of phrases such as ‘shorter than usual’ and ‘longer than usual’, and said that the idea of a ‘usual’ non-parole period was problematic. [13] He continued:
[13](2012) 37 VR 538, 541 [9]–[10] (‘Kumova’).
Authority also dictates, however, that we must strive for consistency. It requires that we look to comparable cases. … Hence, over the last two decades, this court has often referred to the ‘usual non-parole period’ in the sense of something between 60%and 75% of the head sentence. …
Even so, it is important to keep in mind the limitations of the ‘usual non-parole period’. First, … the ‘usual non-parole period’ is in truth no more than an empirical observation that, over a range of cases over a period of years, non-parole periods have tended to range between 60% and 75% of head sentence.
Secondly, the idea of the ‘usual non-parole period’ does not mean that there have not been non-parole periods less than 60% or more than 75% of head sentence over that range of cases. …[14]
[14]Ibid 541–2 [11], [13].
In Kumova the Court considered a non-parole period of seven years six months on a head sentence of 10 years, in circumstances where the sentencing judge had said that, ‘given the appellant’s youth and prospects of rehabilitation, a longer period on parole was warranted’.[15] Nettle JA said:
As I read his Honour’s remarks, they were calculated to convey that, because of the appellant’s youth and prospects of rehabilitation, his Honour thought it appropriate to set a shorter non-parole period than he would otherwise have set. Just as in Wallace, therefore, so too here, the sentencing judge set exactly the non-parole period which he considered to be appropriate.[16]
[15]Ibid 543 [16].
[16]Ibid [17].
Senior counsel for the applicant relied on observations made in Abdou v The Queen[17] and Hill v The Queen[18]. It was submitted that error could be seen in the present case from the fact that the non-parole period fixed by the judge was ‘at the high end of the range’ despite the applicant’s prospects of rehabilitation.
[17][2015] VSCA 359.
[18][2004] VSCA 116
In Abdou, the Court considered a non-parole period of 75 per cent of the head sentence imposed on Abdou’s co-offender Chebib, in circumstances where the sentencing judge conveyed during the plea hearing that he would fix a ‘longer than normal parole period … in light of Chebib’s youth and efforts towards rehabilitation’.[19] The Court concluded that:
The sentencing judge made his intention clear that he would fix a non-parole period shorter than otherwise would have been set to enable Chebib ‘to make good his rehabilitation’. The manner in which the judge expressed himself was conclusive. He identified specific features of Chebib’s personal background such as his youth and attempts at rehabilitation. It was not in dispute that those factors play a strong role in mitigating his sentence and would have justified the imposition of a shorter non-parole period than would otherwise have been imposed.
The absence of any explanation for the judge’s divergence from his stated intention in circumstances which well justified the judge’s intention to impose a parole period longer than he otherwise would have, supports the conclusion that the judge fell into error in fixing the non-parole period. As the Crown conceded on the appeal, the non-parole period fixed was at the high end of the range thereby permitting that conclusion to be more readily drawn. We consider that the sentencing discretion miscarried and that a different non-parole period should be set to give effect to the judges intention that the applicant have a longer period on parole.[20]
[19]Abdou [2015] VSCA 359 [73] (Redlich and Beach JJA and Beale AJA).
[20]Ibid [81]–[82].
The above remarks show that the Court in Abdou was influenced by the fact that the non-parole period was ‘at the high end of the range’. However, the principal reason for the decision appears to have been that it was clear that the judge had diverged from his stated intention to impose a longer parole period. The fact that the non-parole period was conceded to be at the high end of the range bolstered that conclusion. But the case does not stand for the proposition that a sentencing judge’s intention to impose a non-parole period shorter than it might otherwise have been is falsified by showing only that the period is at the high end of the range. As the submissions for the applicant recognised, consideration must also be given to what the judge said about the period, as well as to the features of the case justifying a lower non-parole period.
In the older case of Hill, the Court found that the sentencing judge ‘did not meet the objective she intended’ in fixing a non-parole period of two years six months on a head sentence of three years ten months, after having stated that ‘she would set a shorter non-parole period than she would otherwise have done in order to permit an extended period of supervision on parole’.[21] The reasoning in this case, however, was that the non-parole period that was fixed was ‘longer than normal, rather than less’.[22] Apart from using the language since deprecated in Wallace and other cases, it can be seen that Hill did not purport to set down a test of general application.
[21]Hill [2004] VSCA 116 [28]–[29] (Eames JA, with Charles JA agreeing).
[22]Ibid [28].
It is plain from Wallace that the test to be applied in addressing the applicant’s contentions is whether the non-parole period manifestly failed to give effect to the sentencing judge’s stated intention. While the Court described the circumstances in which that test will be satisfied as ‘exceptional’, it did not posit a test of exceptional circumstances. The use of the word ‘exceptional’ showed only that the Court did not expect the test often to be satisfied.
So, in Dosen, the Court stated that:
It has consistently been held that, subject to one exception, the question for consideration when a ground of this kind is raised is whether it was reasonably open to the sentencing judge, in the circumstances of the case, to fix the non‑parole period that he did. The exception is where the Court is persuaded that the non‑parole period manifestly failed to give effect to the judge’s stated intention, in which case sentencing error is established.[23]
[23][2012] VSCA 307 [8] (Maxwell P and Redlich JA).
The Court in Dosen held that it was reasonably open for the sentencing judge to fix a non-parole period which represented 67 per cent of the head sentence, in circumstances where it was assumed that the judge ‘intended to provide for a longer period on parole than he might otherwise have done’.[24]
[24]Ibid [9].
The cases make it plain that, in the application of the above test, each case depend upon its particular facts and no general rule can be articulated by which ‘usual’ or ‘normal’ ratios between non-parole periods and head sentences may be determinative. At the same time, such a ratio may help to inform an answer to the question whether the period fixed has manifestly failed to give effect to the judge’s stated intention.
Turning to the facts of the present case, two features may be noted. The first is that this was not a case where the judge expressed an intention during the plea hearing as to what kind of non-parole period she would fix. Instead, in her sentencing remarks she described the period she had already determined upon. In that respect, the case resembles Wallace, in which the sentencing judge gave a description of the period available for parole immediately after fixing the non-parole period. It can be more easily said in such a case that the judge fixed the period he or she regarded as appropriate and did not fail to give effect to any different intention.[25]
[25]Wallace (2012) 35 VR 520, 524 [18].
Secondly, the judge gave no indication of how much weight she had given to the factors supporting the fixing of a shorter non-parole period. She did not say that a ‘significant’ potential period of parole was appropriate or that she was fixing a period considerably lower than she would otherwise have done. In the circumstances, the judge’s statement that she had fixed a non-parole period ‘shorter than it would otherwise have been’ amounted to no more than a statement that the judge had taken into account matters justifying a shorter non-parole period.
This means that, in this case, the test of manifest failure would be met only if it could be shown that the non-parole period was so high that the matters identified by the judge could not have been taken into account. But that is not so. As the respondent submitted, the judge had identified the applicant’s prospects of rehabilitation as ‘reasonable’ only. But for those prospects, a longer non-parole period was open. The fact that the reduction in the period might not be able to be seen as significant or even especially meaningful does not suffice to establish that the sentence manifestly failed to give effect to the judge’s intention. The converse is more true — the sentence shows that the judge considered that the impact of the factors which she identified as favouring a lower non-parole period was comparatively modest.
It is not necessary, in reaching this conclusion, to take account of the circumstance upon which counsel were agreed, that it was unusual, even highly unusual, that the non-parole period was not a multiple of 6 months. Even accepting that to be so, the reason for the judge having departed from the pattern counsel described can only be a matter of speculation.
Conclusion
For the above reasons, the application for leave to appeal must be refused.
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