Watkins (a pseudonym) v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0144

CHARLES WATKINS (A PSEUDONYM)[1]	Applicant
V
THE KING	Respondent

[1]To avoid the possibility of identifying the victim of a sexual offence, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

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JUDGES:	PRIEST JA and J FORREST AJA
WHERE HELD:	Melbourne
DATE OF HEARING:	8 August 2023
DATE OF JUDGMENT:	1 September 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 203
JUDGMENT APPEALED FROM:	[2022] VCC 333 (Judge Smallwood)

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CRIMINAL LAW – Appeal – Sentence – Rape – Position of trust – Whether relative invited to party was in position of trust vis-à-vis child – Whether applicant denied procedural fairness where trial judge did not raise issue at plea – Error found – No reasonable prospect of sentence reduction – Leave to appeal refused.

CRIMINAL LAW – Appeal – Sentence – Standard sentencing – Whether trial judge mistook operation of standard sentencing regime – Leave to appeal refused.

CRIMINAL LAW – Appeal – Sentence – Manifest excess – Leave to appeal refused.

Crimes Act 1958, s 38; Criminal Procedure Act 2009, s 280; Sentencing Act 1991, s 11A.

Dibbs v The Queen (2012) 225 A Crim R 195; DPP (Vic) v Gorgulu [2023] VSCA 140; Neubecker v The Queen (2012) 34 VR 369; RP v The Queen (2015) 90 NSWLR 234; Suleman v The Queen [2009] NSWCCA 70; Thu v The Queen [2017] VSCA 28.

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Counsel
Applicant:		Ms A Wong
Respondent:		Ms J Warren
Solicitors
Applicant:	Victoria Legal Aid
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
J FORREST AJA:

The applicant, Charles Watkins, has applied for leave to appeal against a sentence imposed by Judge Smallwood in the County Court at Latrobe Valley, pursuant to s 278 of the Criminal Procedure Act 2009 (the ‘CPA’).
We have determined that, although the applicant has established sentencing error, there is no reasonable prospect that the Court would reduce the total effective sentence despite this error. These are our reasons for refusing this application.

Circumstances of the offending

On 19 October 2018, a birthday party was held at a local park in Traralgon for Erin,[2] and her brother. Erin was aged 14. The applicant, then aged 28, attended. Both he and Erin are of Aboriginal descent, and he was regarded by Erin as an ‘Uncle’.
[2]A pseudonym.
At approximately 7:00 pm, the party moved to Erin’s home. About 20 persons were present, including the applicant. Whilst at the house the applicant consumed alcohol but not to the extent that he was totally intoxicated.
During the evening, Erin stayed in her mother’s bedroom with her two cousins — they were all in the same bed. Erin came out at one stage to sing happy birthday to her brother.
At around 10:30 pm, as Erin was falling asleep, the applicant entered the bedroom. The applicant went to the bed, got on top of Erin, and put his hand over her mouth. He told her he loved her. He pulled down her pants and started whispering, as she described it, ‘rude stuff’. He then digitally penetrated her vagina. The applicant then inserted his penis into Erin’s vagina and told her that it felt good. He continued to whisper ‘rude stuff’ to her. He ‘humped’ her for about five minutes.
The applicant told Erin not to tell anyone, or else he would ‘start hurting people’.
The act of penile penetration was painful. The rape has had a devastating effect on Erin. It was the first experience of sex for a ‘very gentle, withdrawn’ child, as described by the sentencing judge.

The trial

The applicant made a ‘no comment’ interview.
The trial proceeded before his Honour Judge Smallwood with a jury sitting at Latrobe Valley from 9–11 February 2022. The applicant pleaded not guilty. Erin’s evidence was given at a special hearing and played to the jury.
The applicant was found guilty on two counts of rape: the digital penetration and the intercourse.[3]
[3]Contrary to the Crimes Act 1958 s 38(1).

The plea hearing

The plea was heard on 10 March 2022.
Counsel for the Director began by noting that rape was a ‘category 1 offence’ under the Sentencing Act 1991, such that the Act specified a standard sentence for the offence.
The victim’s, and her mother’s, victim impact statements were then read out.
Counsel for Mr Watkins then tendered his plea submissions, a psychological report and two character references.
Mr Watkins’ personal history was explained. He was born in, and grew up in, the Moe‑Morwell area. He was educated to Year 10. His employment history was described as ‘limited’. He has one child from a previous relationship. His mental health profile was ‘unclear’, but after he had been remanded, he had ‘severe depression’, with thoughts of suicide and self-harm.
Counsel for Mr Watkins then submitted that Mr Watkins’ prior convictions bore little relevance to the offending. Indeed, she submitted that they were a ‘potential indicator of how [Mr Watkins] will respond in terms of rehabilitation and structure of sentence’.
The following exchange then occurred:
HIS HONOUR: Yes, but one of the difficulties with this is I’ve never had to do two — actually I have done two standard sentences in Mitchell. I'm not allowed to go below 60 per cent on the minimum term.
MS CLARK: Sorry?
HIS HONOUR: I’m not allowed to go below 60 per cent on the minimum term. There was one last year went to 59.97, I think it was, wasn’t it? But yes, I hear what you’re saying and I'll do the best I can with that but I can’t go lower than 60.
MS CLARK: Working within those constraints.
HIS HONOUR: Yes.
Later in the hearing, the issue of standard sentencing arose again:
HIS HONOUR: … in his situation I'm prepared to treat this as an aberration as such in terms of one incident, both offences, total concurrency between the offences. In that situation there is no suggestion of it happening elsewhere or anything along those lines so I wouldn’t be concerned about rehabilitation and risk of — I’d find there’s no risk of him reoffending in this way. (Indistinct words) or something but I wouldn’t be worried about that. Your trouble is going to be the standard sentence in that overall sentence. I mean, you know, he’s run a trial.
MS CLARK: I can’t rely on obviously any — he’s run a trial so that means I haven’t included some matters that I could in that I can’t submit obviously that there’s any - - -
HIS HONOUR: No, that’s one of the difficulties with — I mean, I hadn’t read that decision of McPherson before. Thank you for that, the last paragraph of that is very helpful.
MS CLARK: The last paragraph - - -
HIS HONOUR: Yes, very helpful. I don't know how it’s going to help you here though.
MS CLARK: Pardon?
HIS HONOUR: I don’t know how it's going to help you here. It helps elsewhere but I don't know about here. Look, I think this is a situation where, I don't know, it's mid-range. That’s what standard sentence is all about. Now there’s a number of factors here that are just not on. I mean, really. He knows her well, he knows her age, her mother’s in the next room. It's a pretty ordinary example.
MS CLARK: He does, but those things — it’s a family event.
HIS HONOUR: Yes, I’m not trying to torture you with it, but it’s a situation where in terms of objective seriousness of it he threatens her, ‘I’m going to hurt your family’, he knows how old she is. I mean, I know they’re little but there’s two other kids in the bed and the whole family are outside.
Near the end of the hearing, counsel for Mr Watkins submitted that the standard sentence was a ‘guidepost’. The judge responded that his own understanding was that the standard sentence is ‘mid-range, whatever that’s supposed to mean’.

The judge’s reasons

On 16 March 2022, the judge sentenced the applicant to 10 years imprisonment for count 1 of rape, and 10 years imprisonment for count 2 of rape. Both sentences were to be served concurrently. A non-parole period was fixed of 7 years and 6 months.[4]
[4]Reasons, [24].
The judge noted that the standard sentence for rape was 10 years. He said:
I am well aware of the decision of Brown and the more recent decision by the Court of Appeal of McPherson, with which I totally agree. The standard sentence is simply part of the sentencing process, and I will be outlining the objective seriousness of this offending as I go through it.[5]
[5]Reasons, [2].
After describing the circumstances of the offending, the judge said:
It clearly had a devastating effect on her as a child, and I will go through that again in a moment. She was asked during the special hearing why she had not told her mother and she said:
Because I just didn’t want anyone to know. I felt like that was, like — to me, it felt like I was the most disgusting person in the world because, like, I let that happen to me. I could have screamed or anything but I didn’t, so technically it’s all my fault that that happened.
That, unfortunately, is how so many of these young victims feel, having been violated in such a way. The circumstances here are aggravated by a number of features. You were clearly in a position of trust. It was a birthday party. There were many older people at the party and she was in a bedroom.[6]
[6]Reasons, [8]–[9] (emphasis added).
The judge then noted other circumstances of the offending, including that it was brazen, that the victim was a 14-year-old virgin, that it was opportunistic, and that the applicant had not been in a totally drunken state.[7]
[7]Reasons, [10]–[11].
The judge said it was a serious example of rape. He said that it called for the application of general and specific deterrence, denunciation, and appropriate punishment.[8]
[8]Reasons, [12].
The judge also said that there was an element of extra-curial punishment involved, as the offending happened in an Aboriginal community.[9]
[9]Reasons, [14].
The judge noted the devastating effects that the offending had had on the victim and her mother. The offending had ‘made a mess of her life’.[10]
[10]Reasons, [13], [15].
The judge accepted that the applicant’s prior convictions were of little relevance to the offending.[11]
[11]Reasons, [16].
The judge detailed the applicant’s familial history, and took into account the difficulty of not being able to contact his son, and the high probability that the applicant’s father would die whilst the applicant was in prison.[12]
[12]Reasons, [17]–[19].
Finally, the judge took into account a miscellany of other factors, including the COVID‑19 pandemic, that the applicant was rated low on sexual deviation, his history of suicide attempts and poor coping during remand, his abuse of alcohol, and the low risk of reoffending in the same manner.[13]
[13]Reasons, [20]–[22].

Application for leave to appeal

On 29 September 2022, the applicant filed an application for leave to appeal against his sentence. The four proposed grounds of appeal[14] were:
Ground 1: The learned sentencing judge erred in finding that offending was aggravated by the fact that the applicant was in a position of trust.
Ground 2: In making the finding complained of under cover of Ground 1, the learned sentencing judge failed to accord procedural fairness to the applicant.
Ground 3: The learned sentencing judge erred in directing himself that the ‘standard sentencing’ scheme prevented him from setting a non-parole period below 60% of the total effective sentence.
Ground 4: The total effective sentence and non-parole period are manifestly excessive.

Grounds 1 and 2 — Was the applicant in a position of trust? And was there a breach of procedural fairness?

[14]For convenience, each proposed ground of appeal will be referred to as a ‘ground’ from here on.

Grounds 1 and 2 were argued together and concerned the finding by the sentencing judge that:
The circumstances here are aggravated by a number of features. You were clearly in a position of trust. It was a birthday party. There were many older people at the party and she was in a bedroom.[15]
[15]Reasons, [9] (emphasis added).
It is necessary to return to the judge’s reasons to examine the basis for His Honour’s finding. These were relatively sparse and the facts giving rise to this conclusion were not identified, at least in terms. However, it would seem that the following matters were relevant to this finding:
(a)The applicant was, in Aboriginal terms, an ‘Uncle’ of Erin. At the time of the offending the applicant was aged 28, and Erin 14.
(b)In her victim impact statement, Erin’s mother said that she invited only close family members to the party, including the applicant.
(c)In that statement Erin’s mother also maintained that Erin had trusted the applicant and that he had taken advantage of that trust.
The applicant made two points:
(a)The applicant was not in a position of trust — he was simply an attendee at the birthday party; and
(b)The issue of position of trust was not raised by the judge or the prosecutor at the plea hearing. He argued that if the judge proposed to make such a finding (that is, that the offending was aggravated by the fact that the applicant was in a position of trust), then he and his counsel should have been put on notice. He was not and this constituted a denial of procedural fairness.
The Director in response contended that the applicant’s invitation to the party was itself an indication that he was in a position of trust, as that meant he had been given ‘unsupervised access’ to Erin.
Further, the Director submitted that the judge did not need to notify the applicant’s counsel that he intended to treat breach of trust as an aggravating factor, as ‘a breach of trust is a matter that necessarily inheres in the assessment of the objective gravity’ of the offending.
In the written submissions of the parties there was little reference to authorities on the issue. In the course of argument, counsel for the Director was referred by the Court to several decisions of the New South Wales Court of Criminal Appeal and the Victorian Court of Appeal relating to the factors which constitute a position of trust. Counsel was asked to provide written submissions relating to those decisions; this was done, and counsel referred to a number of additional decisions of this Court. The applicant filed submissions in response.
The Australian Legal Dictionary defines ‘position of trust’ as follows:
An aggravating feature of an offence where the offender was able to commit the offence by reason of his or her employment or profession, standing in the community, or relationship with the victim either generally or at the particular time the offence was committed.[16]
[16]Ray Finkelstein et al (eds), Australian Legal Dictionary (LexisNexis Butterworths, 2^nd ed, 2016) 1172 ‘position of trust’ (citations omitted).
The concept of a position of trust permeates both civil and criminal law. Reams of paper have been used to describe its premise and application. Before going to the authorities, a few basic points can be made. First, a position of trust involves a relationship between a specified person and another — usually, but not always, in a position of authority. Secondly, in determining its existence one has regard to the objective factors relevant to that relationship, not the subjective views of the participants or their associates. Thirdly, in a criminal proceeding the evidence must establish beyond reasonable doubt the facts giving rise to the relationship.
At first blush, the facts in this case (sparse as they are) do not appear to fall within the concept. A birthday party guest with no specific or general responsibility to the victim on that occasion does not obviously fall within the rubric. We look then to the decided cases for guidance.
In Suleman v The Queen (‘Suleman’) a businessman had been convicted of dishonesty offences. On appeal, he contended that the sentencing judge had erred in accepting as an aggravating factor his breaching of trust with the ‘Assyrian community’. On appeal, Howie J (with whom McClellan CJ at CL and Hislop J agreed) said:
This aggravating factor is not made out simply because the victim trusted the offender for some reason or other … The relevant factor is that there was at the time of the offending a particular relationship between the offender and the victim that amounted to ‘a position of trust’. It is a special relationship existing between them and transcends the usual duty of care arising between persons in the community in their everyday contact or their business and social dealings. … The relationship is one recognised by the common law as imposing upon one of the participants a particular responsibility not to act to the detriment of the other because of their peculiar relationship.
The position of trust recognised by the common law does not arise simply from a subjective state of mind of one of the members of the relationship. …
There are recognised trust relationships that rely upon the person’s standing in the community but usually as a consequence of the person holding a particular occupation or calling; for example doctors, priests or teachers. In such a case members of the community generally understand that holding that position imposes upon the holder a particular duty of care not to act to the detriment of a person dealing with the holder while fulfilling that position. That understanding is recognised by the common law.[17]
[17]Suleman v The Queen [2009] NSWCCA 70, [22]–[24] (‘Suleman’).
The Court held that the applicant’s apparent status as a successful businessman, and the naivety of those with whom he was dealing, were not sufficient to give rise to the special relationship recognised at common law as a ‘position of trust’. In allowing the appeal, Howie J said:
It should be noted that, generally speaking, a finding that an offence was committed in breach of trust is a seriously aggravating factor. It could not be said in the present case that it was a matter that would not have significantly affected the sentence imposed upon the appellant.[18]
[18]Ibid [28].
Although Suleman involved the application of s 21A(2)(k) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the principles equally apply to the present case. Howie J noted that ‘[i]t has been made perfectly clear both by the wording of s 21A(2) and decided cases that the section was not intended to extend the categories of aggravating factors recognised by the common law at the time the section was created’.[19]
[19]Ibid [26].
The decision in RP v The Queen is relevant to both grounds of appeal. In that case, a brother raped his younger sister when he had been tasked with watching his younger siblings whilst their parents were out. In appealing against his sentence, the applicant advanced the following ground of appeal:
Ground 4: The trial judge erred in finding that the applicant occupied a position of trust with respect to the complainant and did so in circumstances where he failed to accord procedural fairness to the applicant.[20]
[20](2015) 90 NSWLR 234, 238 [21]; [2015] NSWCCA 215.
In allowing the appeal, Davies J (with whom Johnson J and Hamill J agreed) said:
The only evidence relevant to the issue of the applicant being in a position of trust was found in this portion of the transcript:
Q202. O.K. So like you just described like the first incident how you said that he touched you and you were locked in the room. Tell me about the first time you remember him putting his penis in your arse?
A. That was when dad and that weren’t home and he had to watch us.
Q203. So your dad wasn’t home?
A. No.
Q204. And neither was his girlfriend?
A. [C].
Q205. [C]. And who had to watch you?
A. [RP] my dad would make [RP] watch us ’cause dad was at work and [C] was at the shops.
Q206. So dad was at work and [C] was at the shops?
A. Yeah she went to the shop.
Q207. So who was there on that day?
A. Just me and [RP], [D] and [K].
Q208. So you, [RP], [D] and [K], excuse me, [K]?
A. Yeah.
… on the basis of the evidence in that portion of the transcript, it was not open to his Honour to conclude that the applicant was in a position of trust with respect to the complainant. Although the Crown submitted that the applicant believed he had authority to send the complainant to his room as a punishment, that raises the further issue, not explored at the sentencing hearing, of whether the applicant understood or was capable of understanding what a position of trust might entail in terms of behaviour.
There is the further matter that the Crown never put forward any suggestion that the applicant was in a position of trust. For that reason, and in the absence of his Honour having raised it with counsel for the applicant, there was a denial of procedural fairness in his Honour making that finding.[21]
[21]Ibid 250–1 [83]–[85] (emphasis added).

Recently in this Court in DPP (Vic) v Gorgulu, Niall, T Forrest and Osborn JA held that a friendship per se did not give rise to such a relationship:
Friendship is not a relationship that the common law treats as giving rise to obligations and mutual duties. Friendship is a broad concept that does not have clearly defined boundaries. Nor is it possible to identify duties that are imposed by the law on one party to look after, care or assume responsibility for the other. No doubt the mutual bonds of affection and goodwill that inhere in a friendship often give rise to feelings of obligation and care but the nature of friendships are so diverse and the features infinitely variable that it is simply not possible to impose any categorical rule in relation to them.
Further, extending the category of trust for the purpose of sentencing to friendships risks diluting the significance that attaches to other clearly established relationships such as that of parent, carer, employer or teacher.[22]
[22][2023] VSCA 140, [24]–[25] (emphasis added).
This is not to say that in a particular factual scenario a relationship between a close family friend and a child can never constitute a relationship of trust. It depends upon the facts of each case and particularly whether they give rise to a relationship of mutual obligation and responsibility. An obvious example is where the friend has been given custody or care of a child and abuses that responsibility.
The Director submitted that the circumstances in Suleman were ‘very different’. She argued that by virtue of the applicant being invited into the family home, a special relationship arose between the applicant and victim which ‘transcend[ed] the usual duty of care arising between persons in the community in their everyday contact … or social dealings’. Similarly, the Director attempted to distinguish Gorgulu. She submitted that where an adult is permitted to be in the company of, or alone with, a child by their parent or guardian then duties such as to ‘look after, care or assume responsibility’ arise.
That position is consistent with the following exchange which occurred between this Court and counsel for the Director concerning whether the guests at the party were in a position of trust in relation to Erin:
FORREST AJA: Are they all in a position of trust?
COUNSEL Exactly, yes.
FORREST AJA: Every one of them?
COUNSEL: Yes.
FORREST AJA: Is in a position of trust?
COUNSEL: Upon being invited into a home, allowed to wander around the house without supervision ---
The Director’s position cannot be accepted. A mere invitation to attend an event which has children present and subsequent attendance cannot give rise to a position of trust.
The Director attempted to distinguish RP v The Queen on the following basis:
The Court (Johnson, Davies and Hamil JJ) held that this was an error, primarily because the evidence was not capable of establishing that the applicant was in a position or trust, nor could it be assumed that he understood or was capable of understanding what a position of trust might entail in terms of behaviour. For those reasons, the Court found the sentencing judge had erred. It is submitted that the circumstances in the present case are very different, in that the applicant was an adult and there is no suggestion he suffered any cognitive deficits which may have impeded his capacity to understand a relationship of trust.[23]
[23]Emphasis added.
That submission is misguided for two reasons.
First, it misreads what Davies J said at [84] of his reasons:
Nevertheless, on the basis of the evidence in that portion of the transcript, it was not open to his Honour to conclude that the applicant was in a position of trust with respect to the complainant. Although the Crown submitted that the applicant believed he had authority to send the complainant to his room as a punishment, that raises the further issue, not explored at the sentencing hearing, of whether the applicant understood or was capable of understanding what a position of trust might entail in terms of behaviour.[24]
[24]Emphasis added.
In referring to the ‘further issue’, there was no suggestion by Davies J that an applicant need subjectively to understand what a position of trust entails in terms of behaviour. That would run contrary to the law as set out in Suleman. It was merely said that this was a further issue which was not explored at the sentencing hearing, in the context of a ground of appeal alleging denial of procedural fairness. The offender in RP v The Queen was himself a child.
The second reason is this. In the present case, if a cognitive defect had existed, and was known of, then that may have had the effect of negativing a relationship of trust, by changing the objective relationship between the parties. But the subjective state of mind of a putative trustee cannot alone determine the existence or otherwise of a relationship of trust. A subjective understanding of what a position of trust might mean (which the applicant may well have had) is not itself sufficient to give rise to a position of trust. It follows, then, that the Director’s reference to the applicant’s subjective understanding cannot be a valid basis for distinguishing the present case from RP v The Queen.
Indeed, the circumstances in RP v The Queen gave rise to a much stronger case for a position of trust than the present case. In that case the offender there had been tasked specifically with watching his younger siblings. Even then, the appeal was allowed on the basis that the sentencing judge could not have been satisfied beyond reasonable doubt that the offender was in a position of trust.
As we mentioned earlier, the Director referred to several decisions in her further submissions. These were Dibbs v The Queen,[25] Neubecker v The Queen[26] and Thu v The Queen.[27] Each is distinguishable from the present case.
[25](2012) 225 A Crim R 195; [2012] VSCA 224.
[26](2012) 34 VR 369; [2012] VSCA 58.
[27][2017] VSCA 28.
In Dibbs v The Queen, the applicant was a friend of the complainants’ grandfather. The complainants were being raised by their grandparents and the applicant was a frequent visitor to their house because of his friendship with their grandfather. The offending occurred when the offender stayed overnight in the same property as the victim. In the present case, there is no evidence that the applicant was a frequent visitor; and he was not staying overnight. He was visiting for an evening, for a birthday party.
In Neubecker v The Queen, the applicant lived with the victim, and had been friends with the victim’s brother for some years. The offending occurred when the applicant had been given unsupervised access to the victim, including when they were sharing a bedroom and when the victim’s mother left the house. That is also plainly distinguishable from the present case.
As is Thu v The Queen, where the applicant was regarded as a very trusted member of a local religious community. He abused that trust by obtaining permission from the first victim’s mother to take the victim to the shops, before taking the victim to his bedroom and sexually assaulting her. The second, third and fourth victims were students at a language school where the applicant taught and assisted with transport.
These decisions do not advance the Director’s position.
The matters relied upon in aggravation must be proved beyond reasonable doubt,[28] and we are not satisfied that there was sufficient evidence here to conclude that the relationship between the applicant and Erin constituted one of a position of trust. Simply put, the invitation to and attendance at the party did not create a position of trust between the applicant and Erin.
[28]R v Storey [1998] 1 VR 359, 370–1 (Winneke P, Brooking and Hayne JJA and Southwell AJA), cited in Strbak v The Queen (2020) 267 CLR 494, 508 [32] (Kiefel CJ, Bell, Keane, Nettle and Edelman JJ); [2020] HCA 10.
In terms of the second ground, that of denial of procedural fairness, at no time during the plea hearing was the question of the applicant’s purported position of trust raised by counsel for the Director, or by the sentencing judge. It was not addressed by the judge or counsel. Indeed, in the Director’s additional submissions, it was conceded that leave to appeal should be granted for ground 2.
We are satisfied that the errors identified in grounds 1 and 2 are made out. The circumstances of the birthday party and the relationship between the applicant and Erin did not give rise to a position of trust. Moreover, if they did, and the judge proposed to use that relationship as an aggravating factor (as he in fact did), then procedural fairness required that the applicant and his counsel be put on notice of that fact. They were not.
But that is not the end of the matter. Even if this Court considers there may be a reasonably arguable ground of appeal, s 280 of the CPA reads:
(1) … may refuse an application for leave to appeal under section 278 in relation to any ground of appeal if—
(a) there is no reasonable prospect that the Court of Appeal would impose a less severe sentence than the sentence first imposed; or
(b) there is no reasonable prospect that the Court would reduce the total effective sentence despite there being an error in the first sentence imposed.
(2) An application may be refused under subsection (1) even if the Court of Appeal considers that there may be a reasonably arguable ground of appeal.
Here, whilst both grounds 1 and 2 are reasonably arguable, the question remains as to whether the proviso contained in s 280(1) is engaged.
The sentence imposed by the sentencing judge was the standard sentence for the offence of rape — namely, 10 years imprisonment. The maximum for the offence is 25 years imprisonment.
On behalf of the applicant, the following matters were said to have been put on the plea. They were relevant to an amelioration of the sentence:
(a)He is Aboriginal, and the youngest of 11 children;
(b)He left school at the end of Year 10 and has had a limited work history, with employment in maintenance for two and a half years in his late teens;
(c)Prior to being incarcerated was in receipt of a carer’s pension;
(d)He has one child from a previous relationship;
(e)He cares for his father, who has cognitive issues subsequent to a heart attack;
(f)He has been socially isolated since his incarceration in 2006;
(g)He has engaged in problematic levels of drinking since his early 20s;
(h)He met the criteria for avoidant and dependent personality disorders;
(i)At the time of sentence, he was presenting with symptoms of severe depression with suicidal ideation;
(j)The impact of the offending would result in effective ostracism within the Indigenous community;
(k)The applicant’s father would in all likelihood pass away during the sentence; and
(l)Imprisonment at Ararat would result in social and cultural isolation.
It is clear from the judge’s sentencing remarks, however, that the matters referred to above were taken into account. The sentencing judge said:
There is an element of extra-curial punishment involved in this, as it is the situation when these things do happen within an Aboriginal community. You are, essentially, ostracised, and that will last, I would have thought, for a very long period of time. …
So far as your background is concerned, your mother, who is now deceased, was Yorta Yorta, and your father was Gunnai. … In your life, you have fathered a young boy named A.J, and after you separated from his mother you became his full-time parent and went to the Family Court and got that custody. …
Your father you continued to live with, till he moved back to Lake Tyers, which is where he comes from, and he just simply, as I understand it, wanted to go home. He had suffered a brain clot and was well enough to go home, and you went to live in Lake Tyers to look after him as a carer.
I take into account that the circumstances will be very difficult for you because of the inability to have proper contact with your son, and also I understand that, from an Aboriginal person’s point of view, the odds are very, very high, I would have thought, that your father is going to die whilst you are in custody and you will be unable to attend the funeral. A.J has now been taken to Adelaide, where he is being cared for by other relatives, and I am sure is being cared for well. …
I take into account that in, certainly, the initial aspects of this custodial sentence you will undergo in COVID conditions. Everyone is well aware of what they are in these circumstances and I do not really have to list them. There was a psychologist’s report tendered on your behalf, and I have read that and taken it into account. It describes the circumstances of your family of origin and also your son A.J. You apparently have secondary education to the completion of Year 10, and you clearly do not have any matters related to the principles in Verdins or Bugmy or anything along those lines.
You were rated low on sexual deviation. I am well aware, of course, that you have no prior convictions. You have a history in more recent times of suicidal attempts and poor coping during remand. And, again, that is a matter that causes me great concern, for somebody in your particular circumstances. You have abused alcohol in the past and it would seem pretty clear you had abused it on this night, to give you the Dutch courage or whatever the appropriate expression would be.[29]
[29]Reasons, [14], [17]–[21].
But, balanced against these were the following considerations:
(a)The applicant does not have the benefit of a discount for a plea of guilty.
(b)There is little evidence of remorse on the part of the applicant.
(c)Erin was a 14-year-old child who was not sexually active. This was and will forever be her first experience of sex.
(d)Erin was in her own home, a place where she was entitled to feel safe.
(e)The applicant sought Erin out in the bedroom where she lay. When he got on top of her, he put his hand over the victim’s mouth, most likely to prevent her screaming or calling for help.
(f)The applicant whispered ‘rude stuff’ to Erin as he raped her.
(g)The act of penile/vaginal penetration was painful.
(h)Immediately after raping her, the applicant threatened Erin that if she told anyone what had happened, he would hurt the family.
(i)The offending was brazen. It was committed whilst Erin’s mother and other adult guests of the party were present in the same house and whilst her cousins lay sleeping in the same bed with her.
(j)Erin was vulnerable, by virtue of her age and also her character, being a gentle and withdrawn child.
(k)The sentence imposed was the standard sentence
The applicant relied upon the sentence imposed in DPP (Vic) v Beck (‘Beck’), where two charges of rape had been committed against a vulnerable victim who was intellectually disabled and 16 weeks pregnant.[30] The accused had a history of repeated sexual offending against vulnerable victims and poor prospects of rehabilitation. A Crown appeal against a sentence was allowed, and the sentence was increased from six years to eight years.
[30][2021] VSCA 88.
It was pointed out by the Director, in this Court, that in Beck, the victim was an adult, and the accused had the benefit of a plea of guilty, which carried with it the increased value that applied during the COVID-19 pandemic. The Director submitted that rather than bolstering the applicant’s case, Beck showed that the 10-year sentence imposed on the applicant was within the appropriate range. We accept that submission.
In our view, the gravity of the applicant’s offending is objectively serious. It was committed against a young girl on what should have been a joyous day, a day of celebration for her own birthday. Plainly, general deterrence, denunciation and just punishment were all factors which needed to be given due recognition in the sentence imposed.
Put another way, we consider that whilst the sentence imposed by the judge took into account an irrelevant matter — the aggravation caused by abuse of a position of trust — the total effective sentence of 10 years imprisonment with a non-parole period of 7 years 6 months is well within the permissible range given the other matters we have just adverted to and excluding any allowance for breach of trust as an aggravating factor.
We are not persuaded that there is a reasonable prospect that this Court would reduce either of the sentences, nor the total effective sentence.

Ground 3 — Did the judge err in directing himself that the standard sentencing scheme prevented him from setting a non-parole period below 60 per cent of the total effective sentence?

Given our determination as to the effect of the proviso in relation to grounds 1 and 2 this question does not, strictly speaking, need to be answered. However, given that this was fully argued we should set out our views on its resolution.
Section 11A of the Sentencing Act 1991 provides:
11A Fixing of non-parole period for standard sentence offence
(1) This section applies to a court when fixing, in accordance with section 11, a non-parole period—
(a) for a standard sentence offence …
(4) Unless the court considers that it is in the interests of justice not to do so, the court must fix a non-parole period of at least…
(c) 60% of the relevant term if that term is a term of less than 20 years.
The applicant submits that by remarking in the course of the plea, ‘I’m not allowed to go below 60 per cent on the minimum term’, the judge misdirected himself in relation to the effect of s 11A of the Sentencing Act 1991.
In our view, that submission is without foundation. First, these were off-the-cuff remarks of the judge during sentencing submissions which did no more than correctly summarise the basic principle underpinning this provision. It may have been different if counsel for the applicant wished to put a proposition concerning ‘the interests of justice’ but none was raised — even faintly. Indeed during the plea, counsel for the applicant agreed with the judge’s remark that he could not impose a non-parole period below 60 per cent of the total effective sentence. Counsel, in contending for a less severe sentence, responded: ‘Working within those constraints.’
Second, the judge fixed a non-parole period of seven and a half years, and the total effective sentence was 10 years. Thus, he imposed a non-parole period of 75 per cent of the total effective sentence, which was well above the minimum set by s 11A(4)(c) of the Sentencing Act 1991.
The applicant then sought to submit that the judge viewed the 60 per cent minimum as a ‘guidepost’, and that such a perception would have meant that the 75 per cent non-parole period that he ultimately fixed was fixed with reference to the 60 per cent figure in s 11A(4)(c).
There are two problems with this submission.
First, as the Director rightly submitted, the minimum imposed by s 11A(4)(c) plainly does not operate as a guidepost. It is a floor. It sets the lower limit of what the sentencing judge may fix by way of a non-parole period subject to consideration of the interests of justice.
Second, even if s 11A(4)(c) were to be viewed as a guidepost, the error the applicant alleges is that the judge did not appreciate that he was permitted to go below 60 per cent in fixing a non-parole period. But even if the judge were so mistaken, that would not have moved the guidepost from 60 per cent. The only thing that would change in the judge’s mind would be whether he understood that he was permitted to go below 60 per cent if the interests of justice required it — a non-issue on this plea. But the fact remains that the only numerical figure which is in s 11A(4)(c) is 60 per cent. That figure would still be the relevant guidepost, even if the applicant’s submission, that the judge mistook the operation of s 11A(4)(c), be accepted (which we do not).

For all of these reasons, ground 3 must fail.

Ground 4 — Manifest Excess

The manifest excess ground also fails for the reasons expressed at [67]–[75].

Conclusion

For the reasons expressed above, orders to the following effect will be made:
(1)Leave to appeal on grounds 1, 2, 3 and 4 is refused.
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[2023] VSCA 203

1 September 2023