Vida (a pseudonym) v The Queen
[2021] VSCA 357
•17 December 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2021 0144
| ASHTON VIDA (a pseudonym)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]To ensure that there is no possibility of identification of the victim of sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the applicant’s name.
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| JUDGES: | KYROU and T FORREST JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 14 December 2021 |
| DATE OF JUDGMENT: | 17 December 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 357 |
| JUDGMENT APPEALED FROM: | [2021] VCC 1314 (Judge Riddell) |
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CRIMINAL LAW – Appeal – Sentence – False imprisonment, intentionally causing injury and indecent assault – Total effective sentence 2 years and 7 months’ imprisonment with 3 year community correction order – Whether individual sentences, orders for cumulation and community correction order manifestly excessive – Leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms G F Connelly with Mr W Blake | McFarlane Criminal Lawyers |
| For the Respondent | Ms E Ruddle QC | Ms A Hogan, Solicitor for Public Prosecutions |
KYROU JA
T FORREST JA:
Introduction and summary
The applicant pleaded guilty on 20 July 2021 to the charges set out in the table below and, on 9 September 2021, he was sentenced by a County Court judge as set out in that table:[2]
[2]DPP v Vida (a pseudonym) [2021] VCC 1314 (‘Sentencing remarks’).
Charge Offence Maximum Sentence Cumulation 1 False imprisonment [Crimes Act 1958 s 320] 10 years 2 years Base 2 Intentionally causing injury [Crimes Act s 18] 10 years 18 months 3 months 3 Indecent assault [Crimes Act s 39] 10 years 20 months 4 months Total effective sentence: 2 years and 7 months’ imprisonment Pre-sentence detention declaration: 679 days Section 6AAA statement: 8 years’ imprisonment with a non-parole period of 6 years
The judge also ordered the applicant to serve a community correction order (‘CCO’) for a period of 3 years.[3] In addition to the mandatory terms, the CCO contains conditions requiring supervision, treatment and rehabilitation, and judicial monitoring.
[3]Having regard to the pre-sentence detention of 679 days, the prospective term of imprisonment to be served by the applicant was less than 12 months.
Due to the lengthy pre-sentence detention and accrued emergency management days, the applicant’s term of imprisonment is due to expire on 12 February 2022.
The applicant has sought leave to appeal against his sentence on the ground that the individual sentences, orders for cumulation and CCO are manifestly excessive in all the circumstances.
At the hearing of the application for leave to appeal, following the applicant’s oral submissions, we made an order refusing the application for leave to appeal without requiring the Crown to make oral submissions. We stated that we would publish our reasons in a few days’ time. These are our reasons.
Circumstances of the offending
The applicant and the victim met through a mutual friend on Facebook in early 2012 and messaged each other about the applicant’s tattoos. They were in contact for approximately three months prior to the offending. At the time of the offending, the applicant was aged 22 and the victim aged 23.
On 5 April 2012, the victim drove to the applicant’s house in Glenroy. When he arrived, the applicant invited him to the pool house located at the rear of the main house. Inside the pool house, the victim saw a man he did not know holding a rifle. The applicant patted the victim down and took his keys and phone.
The applicant made the victim sit on a chair in front of a window and asked him if he was a police officer. The unknown man stood and watched the victim while the applicant questioned him. The victim saw another man sitting on the floor.
The applicant tied the victim’s neck and hands to the window behind him, then separated the victim’s knees and turned on a power or drop saw. Unable to leave the room, the victim was petrified and feared that the applicant was going to kill him (charge 1 — false imprisonment).
The applicant threatened to cut off the victim’s testicles unless he admitted that he worked for Victoria Police. The applicant used the saw to cut through the crotch of the victim’s pants. The victim was so frightened that he falsely stated, ‘Yes man, alright I’m a cop.’
The applicant picked up a stick and beat the victim on and off over a period of hours. During the assault, the applicant played opera music. The victim’s back and legs turned black due to bruising from the beatings.
At one point, the victim was shaking uncontrollably and the applicant said the adrenaline rush would stop if he bled. The applicant then picked up a razor blade and cut a hole in the left pocket of the victim’s pants. The applicant stuck the razor blade into the victim’s leg, cutting him and causing his leg to bleed. He still has a scar on his left thigh as a result.
The applicant also placed lit cigarettes in the victim’s mouth and let them burn down to the butt, causing burns to the victim’s lips. Additionally, he extinguished a cigarette on the victim’s chest, which caused scarring.
Charge 2 (intentionally causing injury) is a rolled-up charge comprising the applicant’s conduct set out in [11]–[13] above.
The applicant asked the victim if he was circumcised and he replied that he was not. The applicant told the victim that he was going to circumcise him. The applicant pulled down the victim’s pants and then: grabbed the victim’s genitals and pushed a blade against them; and wrapped the victim’s testicles around a metal rasp. Charge 3 (indecent assault) is a rolled-up charge comprising the two acts described in the previous sentence.
The applicant then asked the victim how much money he was earning. The victim replied that he was earning approximately $1,200 per week and the applicant said that he would let the victim go if the victim paid him $900 per week. The victim agreed and the applicant then untied him and walked him to his car. The applicant threatened the victim that, if he went to police or told anyone, the applicant would have people rape him.
On 6 April 2012, the victim drove to the Craigieburn Police Station to report the offending. He was visibly upset. Photographs were taken of the marks and burns on his chest, which appeared consistent with the assault. However, police were not able to subsequently locate these photographs. The victim did not make a formal statement to police at the time because he genuinely feared for his life and that of his family.
The victim eventually made a formal statement to police more than seven years later, on 1 August 2019, after police made contact with him. Five photographs were then taken of his scars that remained as a result of the offending.
The applicant was arrested on 14 August 2019 and remanded in custody. He did not participate in a record of interview. He was admitted to provisional bail on 25 June 2020, but arrested and remanded in custody on 10 July 2020 in relation to further offending committed on 8 July 2020.
The applicant was committed to stand trial on 14 January 2021 following a contested committal hearing, during which the victim and other witnesses were cross-examined. As stated above, the applicant subsequently pleaded guilty on 20 July 2021.
Applicant’s personal circumstances
The applicant was aged 32 at the time of sentencing.
The applicant is the second youngest of nine children. His parents’ relationship was marred by verbal abuse and they separated when he was 9 years old. His father moved to New South Wales and maintained minimal contact with the family.
Between the ages of 7 and 9, the applicant was sexually abused on a regular basis by a family friend. The abuse would occur at large gatherings while his parents were with other people. The abuse stopped after his father had an unrelated dispute with the perpetrator. The applicant disclosed limited details of the abuse to one of his sisters as an adult.
When the applicant was 7 years old and on holiday in Lebanon with his parents, he was kidnapped by two of his uncles and held hostage for several hours. The incident was emotionally distressing, but the applicant was not physically harmed.
The applicant experienced pervasive social and behavioural problems, particularly in the aftermath of the abuse he suffered as a child. He was provided with a social worker during his primary school years and attended numerous appointments with mental health professionals. He was expelled in Year 10 after he assaulted a teacher. He briefly attended a specialist school for young males with severe behavioural issues, before being placed in a youth justice centre for committing a sexual offence where he was provided with some further education.
The applicant has a limited work history, having worked at Hungry Jack’s and then in industrial galvanising. He has been unemployed for a number of years and is in receipt of the disability support pension due to his mental health conditions. Shortly before the date of sentencing, he obtained funding through the National Disability Insurance Scheme (‘NDIS’) for his mental health treatment.
The applicant has an extensive history of substance abuse. He commenced using cannabis, ecstasy and MDMA during his early teens and, by his late teens, he was also using methylamphetamines. His use of methylamphetamines in particular increased during his early twenties, which exacerbated his anxiety and psychotic symptoms. He supplemented his drug abuse with occasional binge drinking. His drug abuse remained problematic until he was remanded in custody for the current offending in August 2019. When he was previously imprisoned at the Marngoneet Correctional Centre, he participated in drug and alcohol treatment.
The applicant has a long history of mental health conditions, with previous diagnoses including paranoid schizophrenia, amphetamine-induced psychotic disorder, post‑traumatic stress disorder (‘PTSD’), antisocial personality disorder, bipolar disorder and borderline personality disorder. He has experienced paranoid hallucinations since he was a teenager, although the intensity and frequency of his psychotic symptoms have fluctuated over the years. His hallucinations manifest in the form of sexual violence and paranoid delusions of being persecuted by police and harmed by others. He has been prescribed a range of medications, but his drug abuse meant that he did not always take his medication as directed.
At the time of the offending, the applicant had become increasingly paranoid that the police from an ‘underground city’ were conspiring to harm him. He was also heavily abusing methylamphetamines. In this context, he had come to believe that the victim was ‘working for the police’.
The applicant has had three significant relationships. He has been in a relationship with his current male partner since 2018.
The applicant maintains the support of his mother, siblings and partner.
The applicant has an extensive criminal history dating back to offences that were dealt with in the Children’s Court in 2006. He has previous convictions for various offences, including indecent assault, assaulting police, robbery, obtaining property by deception, possession of drugs and failing to answer bail. Following the current offending, the applicant continued to reoffend, including animal cruelty, weapons, driving and drug offences.
On 13 November 2012, the applicant was sentenced in the Magistrates’ Court to 3 years’ imprisonment with a non‑parole period of 15 months for offending that took place in May and June 2012 — within approximately two months after the current offending — against two different victims. The offences committed against the first victim were intentionally causing injury, false imprisonment, theft and extortion with a threat to inflict injury. The offences committed against the second victim were stalking, false imprisonment, assault and theft. The sentence also covered the offences of extortion with a threat to destroy property, impersonating a police officer, threatening to inflict serious injury, and weapons and drug offences. During the period of the offending, the applicant was abusing illicit substances heavily, causing his mental health to deteriorate.
On 8 July 2020, two weeks after being admitted to provisional bail for the current offending, the applicant committed an assault in company with his current partner. The two men attended the victim’s premises with a view to extracting money for some perceived slight. In August 2020, the applicant pleaded guilty to that offending and was sentenced to time served of 49 days’ imprisonment.
On 16 December 2020, the applicant was seriously assaulted in custody and required face surgery. When he returned from the hospital, he was placed in a management unit for his own safety and subjected to 23-hour lockdown. He experienced symptoms of PTSD and suicidal ideation.
Plea hearing
At the plea hearing, defence counsel relied upon all limbs of R v Verdins.[4] However, he submitted that, because drug abuse played a part in the applicant’s offending, the weight to be attributed to the principles in Verdins was a question of degree. Counsel did not dispute that some cumulation was warranted to reflect the discrete criminality and the additional impact upon the victim of each offence.
[4](2007) 16 VR 269 (‘Verdins’).
Defence counsel relied upon a psychological report by Dr Mathew Barth dated 13 July 2021. Dr Barth diagnosed the applicant with schizophrenia, PTSD, antisocial personality disorder and a severe stimulant-use disorder. He opined that, provided the applicant’s current abstinence could be objectively verified, his stimulant-use disorder would be classified as ‘In Remission — In a Controlled Environment’.
In relation to the impact of the applicant’s mental health upon his offending, Dr Barth stated as follows:
It appears that [the applicant’s] symptoms [of schizophrenia] were particularly intense at the time of his offending and that they impacted his ability to exercise appropriate judgement and contributed to his irrational decision-making and disinhibited behaviour which culminated in his violent behaviour toward the [victim]. Despite this, there was no indication that [the applicant] was unable to understand (albeit in a concrete and simplistic manner) the wrongfulness of his actions.
…
It appears that [the applicant’s] unresolved trauma and distress from his abusive experiences has been discharged in a very direct and dramatic manner. In particular, his deep-seated feelings of resentfulness about his abuse have been acted-out behaviourally by intimidating others. In particular, notwithstanding the impact of his psychotic symptoms on his behaviour, the nature of his offending history indicates that he has been motivated by a need for dominance and control with themes of sexual violence to compensate for the shame and resentfulness he has felt about his own abuse.
Further to this, [the applicant’s] mental health and behaviour subsequently became more disinhibited in the context of his drug addiction and turbulent lifestyle. Not surprisingly, he has experienced repeated legal problems and has committed a range of criminal offences. The severity of these behavioural issues goes beyond any explanation which may be attributed to his diagnoses of schizophrenia and PTSD.
Dr Barth reported as follows in relation to the impact of the applicant’s substance-related issues upon his risk of reoffending:
[The applicant] was able to display a developing appreciation for the noxious impact of drug use on his life. However, he continues to present with minimal insight into the association between his drug use and his psychotic symptoms and on occasions during our interviews, minimised the severity of his drug problems. He also lacks any realistic plans to remain abstinent. Additionally, [the applicant’s] impulsive decision making, poor behavioural control and his history of an entrenched involvement in the drugs subculture indicate that he remains an elevated risk of relapsing when he is released into the community. To his credit, [the applicant] expressed a desire to participate in extensive substance abuse treatment at the earliest opportunity. Such treatment is unequivocally warranted. [The applicant’s] drug use represents a critical criminogenic factor which requires long-term containment.
Dr Barth stated that the applicant was likely to pose a high risk of reoffending in a violent manner. He remarked that there were four components which were essential to the applicant’s rehabilitation:
(a)offence-specific treatment for violent offenders;
(b)psychiatric treatment, including close monitoring of his medication;
(c)trauma-focused treatment, including psychological treatment which allows him to gain insight into the impact of his sexual abuse; and
(d)substance abuse treatment.
Dr Barth opined that any period of imprisonment was likely to be more burdensome for the applicant when compared to prisoners who do not suffer from his longstanding mental disorders.
Dr Barth reported that the applicant expressed remorse to him in the following terms: ‘I’m so sorry for what happened. I really do feel bad. I was in a dark place. I hate the fact that I have put someone through that. It’s a shameful thing.’
Defence counsel also relied upon a letter from the applicant’s NDIS provider, Thumbs Up Community Services. That letter outlined the psychological support it is providing to him in custody, as well as plans for future services to be provided upon his release. The future services include drug and alcohol counselling; psychological treatment; assistance with community engagement, skill development and daily household tasks; and support coordination. His support coordinator described the applicant as engaged and determined to work on his mental health and change his life.
An officer of Corrections Victoria assessed the applicant as suitable for a CCO and recommended that its duration be ‘at least 18 months’. The officer noted that the applicant displayed considerable remorse and accountability for his actions and disclosed that he was a victim of trauma and had ‘put someone through the same trauma’.
Sentencing remarks
In her comprehensive sentencing remarks, the judge stated that the offending was ‘serious and disturbing’ and deserved condign punishment.[5]
[5]Sentencing remarks [16].
The judge said that the false imprisonment was a serious example of that offence because: it was premeditated and planned; it occurred in frightening circumstances, including the presence of a man armed with a rifle; it involved the use of weapons; it lasted for a period of hours; and it was designed to intimidate the victim. She stated that she must view the other two charges in the context of the false imprisonment, although care must be had not to doubly punish the applicant. She remarked that those two offences were committed against an extremely vulnerable victim who was physically restrained and with no capacity to defend himself.
The judge noted that charge 2 reflected three separate and distinct actions. She found that, whilst the three injuries may separately be considered lower-to-mid-range on the spectrum of injury, taken together they were beyond a mid‑range example of injury.
The judge described the indecent assault as ‘an unusual example’ of that offence and stated that it was therefore more difficult to assess the gravity of that offending.[6] She held that it was at least a mid-range — if not mid-to-high-range — example of such an offence. That was said to be because, although it was reasonably brief, the indecent assault caused excruciating pain and humiliation for the victim.
[6]Sentencing remarks [28].
The judge said that the sentence she imposed must generally deter others from seeking to extract money by force and infliction of fear; express the Court’s and the community’s denunciation of the applicant’s conduct; and punish him. She also said that it was important that the sentence specifically deter him because he offended in similar ways again on two occasions against two other men in the months following the current offending. She further said that the sentence must protect the community because the applicant had been assessed as being at a high risk of violent reoffending.
The judge held that all limbs of Verdins were enlivened on account of the applicant’s schizophrenia and PTSD, as well as arguably his antisocial personality disorder. She said that his schizophrenia and PTSD impacted his behaviour at the time of the offending. Accordingly, she found that his moral culpability was reduced, notwithstanding Dr Barth’s opinion that his moral reasoning was intact at the time of offending. She held that, given the reduction in the applicant’s moral culpability, it was open under limb 2 to impose a different kind of sentence than that which may be imposed upon a person without those mental health conditions. She stated that general and specific deterrence considerations should be somewhat modified, albeit not eliminated. She said that imprisonment would be more burdensome upon him than a person not suffering from schizophrenia because the paranoia and anxiety caused by that condition were heightened in that setting. She also found that there was a real risk that his mental health would deteriorate because his acute anxiety, distress and symptoms of PTSD had already intensified in the custodial setting.
The judge said that defence counsel appropriately conceded that moderation of the applicant’s sentence in accordance with limbs 1 to 4 of Verdins would be modest. That was said to be because his psychotic symptoms at the time of offending were correlated to his then daily abuse of methylamphetamines. The judge stated that, in determining the amount of moderation and the appropriate sentence, she took into account Dr Barth’s opinion that the severity of the applicant’s offending went beyond any explanation which may be attributed to his schizophrenia and PTSD. She explained that she understood that comment to refer to the interplay of the applicant’s illicit drug abuse with his offending and that he continues to exhibit entrenched antisocial traits. She remarked that it was inevitable that some of the benefit he obtained from the principles of Verdins would be offset by the need to protect the community, which she described as a prominent sentencing consideration.
The judge said that the applicant’s criminal history was ‘concerning’.[7] She stated that the May and June 2012 offending had ‘strong and disturbing similarities’ to the current offending.[8] She acknowledged that he had not reoffended in the same fashion in the intervening years, although he had been dealt with a number of times for drugs and weapons possession charges.
[7]Sentencing remarks [70].
[8]Sentencing remarks [72].
The judge said that the applicant’s reoffending in July 2020 was also ‘concerning’ for five reasons.[9] First, he was not deterred by the fact that he was facing the current serious charges. Secondly, he was to be bailed to the Court Integrated Services Program to engage in treatment. Thirdly, his reoffending involved an offence of violence, motivated by financial gain. Fourthly, he reoffended soon after approximately 10 months in custody. Fifthly, he was in company with his partner, who he subsequently nominated as a support on the plea. The judge remarked that these matters spoke to the need for specific deterrence and did not bode well for the applicant’s prospects of rehabilitation.
[9]Sentencing remarks [79].
The judge accepted Dr Barth’s assessment that the applicant had a high risk of violent reoffending, as well as a high risk of relapsing into drug abuse. The judge stated that the applicant had minimal insight into the association between his drug abuse and psychotic symptoms. She found that he needed ‘stringent and intensive treatment’ for both violence and sexual violence in order to reduce his high risk of reoffending.[10] She described the applicant’s ongoing support from his family and the benefit of an NDIS package as ‘positive’.[11] She also said that it was encouraging that he had undertaken a range of courses while in custody directed at occupational skills, literacy and numeracy; had successfully completed a term of parole; and had undergone random urine screens while on remand which were each negative for illicit drugs. Overall, she assessed his prospects of rehabilitation as ‘guarded’.[12] This was said to be because they were largely dependent upon him receiving psychiatric treatment, taking his medication as directed and remaining free of illicit substance abuse.
[10]Sentencing remarks [82]–[83].
[11]Sentencing remarks [84].
[12]Sentencing remarks [86].
The judge remarked that she took into account that the applicant expressed limited remorse to Dr Barth and, more recently, displayed considerable remorse and accountability for his actions to the Corrections Victoria officer.
The judge stated that the applicant’s guilty plea had a utilitarian benefit because it saved the community the cost and time of a trial. Although she noted that the victim was cross-examined at a committal hearing, she remarked that the plea importantly saved him from giving evidence before a jury about a traumatic and humiliating event. She said that she also took into account the particular value of a guilty plea in circumstances where the COVID-19 pandemic had caused a significant backlog of cases in the County Court.
The judge noted that the applicant had been remanded during the COVID-19 pandemic, at a time when prisons were more difficult. That was said to be because activities were affected, in-person visits had been suspended and prisoners were unable to make autonomous decisions about exposing themselves to risk. She stated that she took into account the applicant’s significant mental health issues in that context, including that he had been seriously assaulted in custody and had been suicidal.
Although the judge accepted that delay was a relevant factor, she stated that she could only give delay ‘very limited account’.[13] That was because the applicant’s threat of rape had stopped the victim from formalising his complaint the day after the offending and the applicant had consequently ‘not had the charges hanging over [him] for an unusually long period of time’.[14] In relation to whether the applicant could show rehabilitation in the intervening period, she stated that she took into account that he had not reoffended in a similar way since 2012, although the recent offending while on bail was ‘of concern’.[15]
[13]Sentencing remarks [97].
[14]Sentencing remarks [97]–[98].
[15]Sentencing remarks [99].
In relation to totality, the judge stated that she took into account ‘the fact that this matter may otherwise have been dealt with alongside those similar matters dealt with in November 2012’. She said that both parties agreed that she should give consideration to ‘issues of totality’.[16]
[16]Sentencing remarks [100].
The judge determined that a combination sentence of a term of imprisonment and a CCO was appropriate for the following reasons:
(a)the application of limbs 1 to 4 of Verdins;
(b)the applicant’s guilty plea in the face of the delay and where the prosecution did not have the benefit of photographs from the original complaint;
(c)the principle of totality;
(d)the applicant’s lack of similar offending since 2012; and
(e)the applicant’s need for intense treatment in the interests of community protection.
In addition to the mandatory terms, the CCO made by the judge contains the following conditions:
(a)The applicant is to be under the supervision of a community corrections officer.
(b)The applicant must undergo assessment and treatment for drug abuse or dependency, including in-patient residential rehabilitation if directed.
(c)The applicant must undergo mental health assessment and treatment that may include psychological, neuropsychological or psychiatric treatment or treatment in a hospital or residential facility.
(d)The applicant must participate in programs that address factors relating to his offending behaviour, including a sexual offender program and high-intensity violence intervention program.
(e)The applicant must reappear before the judge for judicial monitoring on 22 July 2022.
Parties’ submissions
The applicant submitted that, overall, the sentence was disproportionate to the offending. This was said to be because of the following reasons:
(a)the applicability of all principles in Verdins;
(b)a delay of nearly a decade between the offending and sentence;
(c)the applicant’s plea of guilty, especially during the COVID-19 pandemic;
(d)the applicant’s remorse;
(e)the extremely onerous conditions of remand;
(f)the applicant was a youthful offender at the time of the offending;
(g)the availability of rehabilitation support in the form of family and an NDIS package; and
(h)totality, in respect of:
(i)each of the charges on the indictment;
(ii)the sentence of 3 years’ imprisonment with a non-parole period of 15 months imposed on 13 November 2012 for similar and proximate subsequent offending; and
(iii)the 49-day sentence for the offences committed while on bail served continuously with the period of declarable pre-sentence detention.
The applicant submitted that a manifestly excessive sentence in the present case may have resulted from the judge adopting an erroneous approach to the principle of totality and giving too much emphasis to community protection.
The applicant acknowledged that the judge was alert to the need to apply the principle of totality having regard to the sentence imposed for the May and June 2012 offending. However, he contended that she did not elaborate on the manner in which she approached the totality principle. He argued that, on the plea, the prosecution had urged her to sentence him by reference to the notional sentence that would have been imposed had all three matters been dealt with at once. It was said that that notional sentence may have attached a greater seriousness to the May and June 2012 offending than was proportionate to the sentences imposed by the magistrate.
The applicant contended that a correct application of the totality principle would mean the previous sentences for similar subsequent offending could only have had a moderating effect upon the sentence, unrestricted by any recalibration of the assessment of gravity of the offending collectively.[17] He argued that, by contrast, the approach urged upon the judge by the prosecution left open the prospect of a disproportionate sentence.
[17]The applicant relied upon Sayer v The Queen [2018] VSCA 177, [76]–[78].
The applicant conceded that the judge fairly described his prospects of rehabilitation as ‘guarded’ and his risk of reoffending as ‘high’. He acknowledged that weight therefore had to be accorded to specific deterrence and community protection. However, he submitted that the judge erred by placing too much weight upon those sentencing purposes for the following four reasons.
First, contrary to the judge’s conclusions, specific deterrence did not, in all the circumstances, have to be emphasised by reason of the other 2012 offending.
Secondly, the applicant’s offending history, including while on bail, did not reflect a contemporary need for treatment in respect of sexual violence. That was because Dr Barth’s risk assessment and recommendations were directed to violent offending, as opposed to sexual violence.
Thirdly, there was considerable detail tendered at the plea hearing about the applicant’s criminal history, including his offending as a child. Accordingly, the weight of information before the judge did not concern the offences for which the applicant fell to be sentenced. In these circumstances, avoiding re-sentencing the applicant for other offending was a matter that required great vigilance.
Fourthly, the offending from which the community needed protection at the time of sentence was different from and less serious than the offending for which the applicant fell to be sentenced. The weight to be accorded to community protection and specific deterrence for the current offending was diminished by reason of delay between the offending and sentencing and the absence of sexual offending since the current offending. This was so irrespective of the reason for the delay.
In oral submissions, counsel for the applicant contended that the judge moderated the weight she gave to Verdins considerations to a greater extent than was warranted because she gave too much prominence to protection of the community and specific deterrence as sentencing considerations. According to counsel, whilst the force of Verdins considerations had not decreased since the time of the current offending, the applicant’s subsequent offending had become less serious and therefore the need for community protection and specific deterrence had diminished.
The applicant contended that, in all the circumstances, a 3-year CCO in addition to a sentence of 2 years and 7 months’ imprisonment for the current offending is so lengthy as to reveal an error of principle in the nature of the imposition of a disproportionate sentence to give effect to community protection and a failure to give effect to the principle of parsimony.[18]
[18]The applicant relied upon Boulton v The Queen (2014) 46 VR 308, 325–8 [63]–[76].
The Crown submitted that the individual sentences, orders for cumulation and CCO were within the available range for offending that was plainly very grave.
According to the Crown, it was plainly open to the judge to give very limited weight to delay in mitigation of sentence. That was said to be so for three reasons. First, the delay in prosecuting this matter arose from the victim’s fear of retribution, which was instilled in him by the applicant. Secondly, as the applicant had not had the charges ‘hanging over his head’, the delay did not operate as a form of punishment upon him. Thirdly, the applicant had not rehabilitated in the intervening period.
The Crown conceded that the applicant was youthful when he committed the offences. However, it observed that he was not a first time offender and submitted that the serious nature of the offending meant that the weight to be given to his youth had to give way to other sentencing considerations.
The Crown submitted that the judge gave appropriate weight to the principles in Verdins and that this is reflected in the form of the sentence, being a combination sentence, as well as its moderate nature.
The Crown contended that the judge correctly applied the principle of totality. It argued that, contrary to the applicant’s argument, the judge did not embark upon the task of calculating a ‘notional’ sentence of what would have been imposed had the current offending been dealt with at the same time as the May and June 2012 offending. According to the Crown, there was nothing in the judge’s sentencing remarks which suggests that she departed from the instinctive synthesis approach or failed to have appropriate regard to the fact that the applicant had served a term of imprisonment for similar offending against two other victims.
The Crown submitted that, given the serious nature of the indecent assault and intentionally causing injury offences, the orders for cumulation were modest. It argued that the judge was not required to moderate the sentence to any significant degree by virtue of the applicant’s 49-day sentence imposed while he was on remand for the current offending. That was said to be because that sentence was imposed for an offence of assault in company against an unrelated victim, which the applicant committed just 13 days after he had been granted bail in the Supreme Court for the current offending.
The Crown submitted that, having regard to Dr Barth’s observation that the applicant’s history of offending had themes of sexual violence, the judge’s conclusion that the applicant was in need of treatment for violence and sexual violence was justified.
The Crown contended that, given the serious nature of the offending, the applicant’s criminal history and Dr Barth’s risk assessment, the judge’s conclusion that community protection was a prominent sentencing consideration was inescapable.
Decision
There are two striking features about the present case. The first is the extreme and shocking nature of the offending. The second is that, having regard to the gravity of the offending, the sentence imposed by the judge appears very moderate. The only way that these features can be reconciled is that the judge gave significant weight to the mitigating factors upon which the applicant relied. In these circumstances, the proposition that the sentence is manifestly excessive is untenable.
We turn first to the gravity of the offending. It is no exaggeration to describe the offending as a form of torture inflicted upon the victim in a callous and degrading manner for the purpose of monetary gain. The victim suffered excruciating pain and was so terrified that he feared for his life. The applicant taunted the victim with threats, including a threat of circumcision. The playing of opera music during the frightening ordeal added a sadistic flavour to the offending. To state that the applicant behaved in a cruel and thuggish manner understates the seriousness of the offending.
In the absence of Verdins considerations, the applicant’s moral culpability could only be assessed as of the highest order. The fact that he offended in a similar manner a few months after the current offending and also engaged in violent offending more recently while on bail elevated the importance of specific deterrence and protection of the community. This was particularly so having regard to Dr Barth’s assessment of the risk of the applicant engaging in violent offending in the future as high.
We reject the applicant’s submission that the fact that his offending since 2012 involved a lesser degree of violence compared to the current offending and did not involve any sexual offending meant that it was inappropriate for the judge to treat protection of the community and specific deterrence as paramount sentencing considerations. In our opinion, the judge was entirely justified in giving prominence to those considerations, particularly protection of the community.
The courts must condemn in the strongest possible terms violent standover offending of the type in which the applicant engaged and impose condign punishment to deter the offender and anyone else who may be contemplating engaging in similar conduct.
Having regard to the above considerations and the maximum penalty of 10 years’ imprisonment for each of the three offences, if one puts aside the mitigating factors upon which the applicant relied other than the guilty pleas, a total effective sentence of 6 years and 6 months’ imprisonment would have been well within range. In this context, it can be readily inferred from the judge’s sentencing remarks
that she:
(a)significantly moderated the custodial sentence to allow for the mitigating factors upon which the applicant relied, including Verdins considerations, the principle of totality, the applicant’s youth at the time of the offending, and the harsh custodial conditions arising from the COVID-19 pandemic and the lockdown restrictions imposed upon the applicant for his own safety; and
(b)combined the custodial sentence with a CCO of 3 years with conditions which focused upon the applicant’s rehabilitation and sought to ensure that his release in the community following the relatively short custodial sentence was supervised and monitored in his own interests as well as those of the community.
In our opinion, it cannot be seriously argued that any aspect of the sentence imposed by the judge was disproportionate when considered in the context of the gravity of the applicant’s overall offending, his moral culpability (appropriately moderated in the light of the principles in Verdins) and the mitigating circumstances upon which the applicant relied. The individual custodial sentences and the orders for cumulation are very lenient. We accept that the duration of the CCO is lengthy. However, the applicant’s criminal history and the high risk of reoffending demanded that he be supervised and be required to undergo rehabilitative programs over an extended period in order to maximise the prospects of his rehabilitation and minimise the risk of harm to others. The conditions attached to the CCO are consistent with Dr Barth’s report and the duration of 3 years is ‘at least 18 months’, as recommended by Corrections Victoria.
In short, the sentence imposed by the judge was very moderate and carefully structured to achieve an appropriate balance between the sentencing considerations of denunciation, just punishment, general and specific deterrence and protection of the community on the one hand, and the applicant’s rehabilitation on the other.
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