W D v The Queen
[2012] VSCA 100
•17 May 2012
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| WD | S APCR 2011 0283 |
| Appellant | |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | BUCHANAN and REDLICH JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 17 May 2012 |
| DATE OF JUDGMENT | 17 May 2012 |
| MEDIUM NEUTRAL CITATION | [2012] VSCA 100 |
| JUDGMENT APPEALED FROM | DPP v [WD] (Unreported, County Court of Victoria, Judge Lewitan, 19 October 2011) |
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CRIMINAL LAW – Sentence – Sexual penetration of a child – Appellant originally charged with rape – Sentencing remarks refer to force used – Specific error – No point of principle.
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| Appearances: | Counsel | Solicitors |
| For the Appellant | Mr S Kennedy | Tait Lawyers |
| For the Respondent | Mr D A Trapnell SC | Mr C Hyland, Solicitor for Public Prosecutions |
BUCHANAN JA:
I will ask Justice Redlich to deliver the first judgment.
REDLICH JA:
The appellant pleaded guilty to two counts of sexual penetration of a child under 16 years of age and was sentenced to three years' imprisonment with a non‑parole period of two years. He had previously been charged with two counts of rape in relation to these acts but shortly prior to his plea, the Crown accepted a plea to these lesser offences.
The facts are summarised in her Honour's sentencing remarks. Having regard to the primary issue in the case I should explicitly refer to them.
On 12 December 2009 the complainant, GT, attended a park in North Richmond and met with a number of people including the appellant and MI. The complainant was born on 26 March 1995 and was 14 years old at the time of the offending.
At one stage the appellant left the park with the complainant to purchase alcohol from a local bottle shop. He discussed the fact that the complainant was only 14 years old. He returned to the park and kept drinking. After some time the appellant and the complainant attended another bottle shop and drank more alcohol before heading towards the Collingwood commission flats.
The appellant and the complainant went inside MI’s flat and continued to drink alcohol and smoke marijuana in the company of several of the appellant’s family members. At around midnight the complainant went into a bedroom where MI and her son were lying on a double mattress. The complainant lay on a single mattress in the room before falling asleep. She said that when she went to bed she was wearing a jumper and her tracksuit.
Sometime during the night the complainant woke up to find the appellant leaning over her. The defence submitted that the complainant was naked at the time. Her Honour accepted counsel’s submission that there was no evidence that the appellant removed the complainant’s pants. The appellant was sucking and biting the complainant’s breasts and in particular her nipples. The appellant masturbated his erect penis at the time.
The appellant then asked the complainant if he could have sex with her. She said no and reiterated that she was only 14. The appellant rolled her over and inserted his penis into her vagina. He had sexual intercourse with her for some time. The complainant told him to stop and told him that it hurt. She screamed. However the appellant kept going and put his hand over her mouth. The appellant stopped when his cousin, who was sleeping in the room, tossed and turned a little. Those were the facts concerning count 1.
The appellant then inserted his penis into the complainant’s anus. This caused the complainant pain. The appellant still had his hand over her mouth at the time. The complainant said that the appellant was rough and said that it lasted about 10 minutes. The appellant were not wearing a condom and the complainant saw faeces on his penis.
The complainant ended up elbowing the appellant in the ribs and he let go and walked out of the room. That constitutes the facts on Count 2.
The complainant said that she was distressed and cried herself to sleep. She said that she was too scared to tell anyone immediately because the appellant committed these offences at his family’s house and she did not know what the family’s reaction would be. The next day the complainant told her father David.
After the matter was reported to the police on 16 December 2010, a forensic medical officer examined the complainant. No DNA was found on any of the swabs taken from the complainant, however the complainant had by that time already showered. Bruising was noted on her neck consistent with the complaint that the appellant had given her a love bite. The complainant also presented with bruising to the inside of her elbow area.
I granted leave to appeal against his sentence on 9 February on the ground that the sentence was manifestly excessive. Particulars of manifest excess are set out in the Notice of Appeal. They include the contentions that the sentencing judge took into account irrelevant facts, paid insufficient regard to the appellant’s background of deprivation and low borderline intellectual deficit, that the sentence infringed the principle of totality, that inappropriate weight was attached to the Sentencing snapshot produced by the Crown, that undue emphasis was placed upon the appellant’s prospects for rehabilitation and that her Honour wrongly characterised the appellant’s conduct as amounting to a breach of trust.
The substance of the complaint raised under the first of these particulars is that the learned judge set out in her sentencing remarks matters which should not have been opened by the Crown and which implied that the offences were violent and upsetting to the complainant and were in the nature of rape. It is correct to say that these facts, if accepted go a long way toward establishing that the complainant was raped. They allege violence was used, that the appellant persisted with both vaginal and anal intercourse despite the complainant's objection and that the complainant was thereafter most distressed.
In the joint judgment in Clarkson and EJA v The Queen,[1] it is said that proven absence of consent increases culpability. If the evidence of force was part of the agreed facts, the offences committed were of a much more serious order than if they were entirely consensual. As the appellant was not charged with rape nor did the indictment allege any circumstance of aggravation, the sentencing judge would not have been entitled to have regard to any circumstances that would have rendered the appellant liable to a more serious offence under the Crimes Act[2] but, as Clarkson and EJA makes clear, force used in circumstances which fall short of rape may be relevant to offences such as the present. It is necessary to briefly advert to the course that was followed on the plea.
[1]Clarkson v R; EJA v R [2011] VSCA 157, [4].
[2] The Queen v De Simoni (1980) 147 CLR 383.
Initially the only objection taken by counsel for the appellant to the facts opened by the prosecutor was that there was no evidence that the appellant had removed the complainant's underwear and that her VATE statement said only that she was naked when she suddenly found the appellant leaning over her sucking her breasts.
The matter was resolved on the plea on the basis that although the complainant said she went to bed with her jumper and pants on, her Honour could not find that the appellant had removed her clothes.
The plea was adjourned to enable a psychiatric report to be obtained. On the return date the appellant's counsel said that she should have objected to the parts of the opening that alleged violence as this was totally irrelevant to the charges and was hotly denied. Her Honour was therefore asked to presume that there was no force associated with the sexual acts.
The prosecutor, on this return date, was not the same counsel who had appeared for the Crown on the first occasion. He said that it was his understanding that there had been an agreement as to the facts opened. The appellant's counsel denied that and said that the facts which had been opened were only presented to her on the day of the first plea.
The sentencing judge then stated that the matter had already been resolved on the basis that though the complainant said she went to bed with her clothes on, there was no evidence that the appellant removed them.
The appellant's counsel again submitted that the evidence of force was irrelevant and the sentencing judge appeared to assent to that proposition although it is not free from ambiguity as to her intentions in relation to the facts which disclose that force was used. No further reference was made to that part of the opening that asserted that the appellant had used force and that the sexual acts were not the subject of consent. It seems to be the case that counsel for the appellant thereafter thought that such evidence would be disregarded by her Honour.
I note, not by way of criticism, that some time elapsed between the two plea hearings and the date of sentence. Unfortunately, the evidence that the acts were violent and were objected to by the complainant were then fully repeated in her Honour's sentencing remarks. The appellant maintains on this application that such evidence was irrelevant and should have been disregarded.
On the leave application and before this court, the respondent stated that the Crown had not argued that any circumstance of aggravation existed that would have entitled her Honour to rely upon the acts of violence. That amounted to a concession that that these impugned facts were not part of any agreement and that it was not open to her Honour to take them into account. The respondent’s written submission was silent on the question whether it should be inferred that these facts were treated as relevant.
The fact that her Honour detailed the evidence of the force used and the complainant’s distress is prima facie an indication that her Honour regarded them as having at least some relevance, and accordingly that some weight may have been attached to them. If her Honour did take these matters into account, a more substantial sentence than that which was imposed would have been appropriate. Mr Trapnell SC, who appeared for the Crown on this application, made a compelling argument that although it appears in her Honour's sentencing remarks that force was used, it was not in fact taken into account as part of her Honour's instinctive synthesis. Mr Trapnell SC referred to the fact that her Honour did not include the evidence concerning the allegation that force was used or the complainant's subsequent distress as matters which were relied upon when summarising the aggravating features of the offence. He further pointed to the fact that when her Honour quoted from a passage in Clarkson and EJA, her Honour did not go on to refer to those passages which dealt with the issue of absence of consent or the use of force as aggravating features of such an offence.
All that said, however, justice must, in my view, be seen to be done. One cannot disregard the fact that these matters were recited in the sentencing remarks. If the particular of manifest excess is treated as a discrete ground of error, the appellant will have made out the contention that her Honour took into account an irrelevant consideration. It is then no answer for the Crown to say that the sentences imposed do not reflect such an error. Accordingly, the first pleaded particular of manifest excess has been made out, although it is really an allegation of specific error. Having regard to the other particulars of manifest excess and the sentence imposed, I am not however persuaded that the sentence was outside the range of sentences reasonably open. On the contrary, it was well within the permissible range.
The other particulars of manifest excess do not persuade me that the sentence was outside the range of sentences reasonably open. On the contrary, the sentence imposed was well within the permissible range. In particular the submission that there should be no cumulation for Count 2 cannot be sustained.
As indicated during oral argument, we would be prepared to treat the first particular as a discrete ground which, in my view, has been made out. Taking into account all of the factors personal to the appellant, including his deprived background, his relative youth and his intellectual deficit largely associated with his substance abuse, each being matters to which her Honour did refer, I consider that the principle of totality would be satisfied by the imposition of a lesser total effective sentence.
Accordingly, I would sentence the appellant as follows:
Count 1 – 27 months’ imprisonment
Count 2 – 27 months’ imprisonment
I would order that three months of the sentence on count 2 be served cumulatively on count one making a total effective sentence of 30 months. I would fix a non parole period of 18 months.
BUCHANAN JA:
I agree.
(Discussion re sentence)
The orders of the Court will be as follows:
1. The appeal is allowed.
2.The sentence passed below is set aside and in lieu thereof the appellant is sentenced to be imprisoned for a term of 27 months on counts 1 and 2. Three months of the sentence on Count 2 are to be served cumulatively on the sentence on Count 1. The total effective sentence is 30 months imprisonment.
3.A minimum term of 18 months' imprisonment is fixed before the appellant is to be eligible for parole.
4.The order made below for the taking of a forensic sample is confirmed and the appellant is to be subject to the reporting requirements stipulated by the Sex Offenders Registration Act2004 for a period of 15 years.
5.Pursuant to the provisions of s 6AAA of the Sentencing Act1991, it is declared that the sentence which the Court would have imposed but for the plea of guilty is a total effective sentence of four years' imprisonment with minimum term of three years' imprisonment.
6.It is declared a period of 576 days is to be reckoned as already served under the sentence and it is ordered that the fact that that declaration has been made and its details be entered in the records of the Court.
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