Zachary Underwood (a pseudonym)[1] v The Queen
[2017] VSCA 282
•3 October 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0129
| ZACHARY UNDERWOOD (A PSEUDONYM)[1] | Applicant |
| V | |
| THE QUEEN | Respondent |
[1]To ensure that there is no possibility of identification of the applicant, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.
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| JUDGE: | SANTAMARIA JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | On the papers |
| DATE OF JUDGMENT: | 3 October 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 282 |
| JUDGMENT APPEALED FROM: | DPP v [Underwood] (Unreported, County Court of Victoria, Judge Dyer, 26 May 2017) (Sentence) |
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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE (DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009)
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CRIMINAL LAW – Application for leave to appeal against sentence – Applicant convicted of indecent assault and rape – Sentence of 8 years and 2 months’ imprisonment with non-parole period of 5 years and 8 months – Whether sentence manifestly excessive – Whether orders for cumulation manifestly excessive – Whether principle of totality offended – Leave to appeal granted in part.
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| APPEARANCES: | Counsel | Solicitors |
| On the papers |
SANTAMARIA JA:
The applicant, now aged 36, stood trial in the County Court and was convicted of one charge of indecent assault and three charges of rape. On 26 May 2017, he was sentenced as follows:
Charge on indictment Offence Maximum penalty Sentence Cumulation 1 Indecent Assault
[Crimes Act 1958 s 39(1)]10 years’ imprisonment 6 months’ imprisonment 2 months 2 Rape [Crimes Act 1958 s 38(1)] 25 years’ imprisonment 5 years’ imprisonment 18 months 3 Rape [Crimes Act 1958 s 38(1)] 25 years’ imprisonment 5 years’ imprisonment Base 4 Rape [Crimes Act 1958 s 38(1)] 25 years’ imprisonment 5 years’ imprisonment 18 months Total effective sentence: 8 years and 2 months’ imprisonment Non-parole period: 5 years and 8 months’ imprisonment Pre-sentence detention declaration 52 days Other relevant orders Sentenced as a ‘serious sexual offender’ pursuant to s 6F of the Sentencing Act 1991
The applicant now seeks leave to appeal his sentence.
Circumstances of the offending
The applicant and the elder sister of the victim had been living together in a relationship. The victim’s sister was pregnant to the applicant.
Sometime in April 2015, the victim, then aged 19, had arranged with her sister to stay at the premises shared by her sister and the applicant in Kings Park. At the time, the victim had been experiencing difficulties in her own relationship.
On 27 June 2015, the applicant picked up the victim from her address in Lalor and drove her to the premises in Kings Park. The victim’s sister was absent, visiting a relative that day.
Soon after arriving at the premises, the victim sat on the couch and began to watch a movie. She was wearing underwear, tights and a black shirt. The applicant said that he was going to have a shower.
The applicant came out of the bathroom and sat on the couch with the victim. He began to make sexual remarks to her about a transgender woman whom he said he knew. He then told the victim a number of times that he was ‘horny’. The victim asked him to stop telling her that he was horny and suggested that he call his girlfriend, the victim’s elder sister.
Not long after that exchange, the applicant made mixed alcoholic drinks for himself and the victim. The victim sipped on the drink as she watched the movie. The applicant then got up from the couch to get some snacks. On the way, he slapped the victim on the thigh. When he returned, he sat closer to the victim. He urged her to drink quicker and offered her another drink. She told him that she was in no hurry and that she would take her time.
After they had finished their drinks, the applicant again told the victim that he was horny.[2] The victim told the applicant that ‘nothing is going to happen’. He pleaded with her, asking for ‘just two minutes’. She refused and threatened to message her sister. Later, the applicant again asked the victim to have sex with him.
[2]By this stage, the applicant had consumed two glasses of the mixed alcoholic drink.
The applicant began touching the victim. He pulled the right side of her tights down. She protested and tried to pull them back up. He tried to pull the left side down, but to no avail. He then pulled her pants down from behind. She protested and told the applicant that he had a child on the way, referring to the victim’s pregnant sister. The applicant told the victim not to tell her sister and continued pleading to have sex with her for two minutes.
The applicant then pulled down the victim’s underwear to her ankles. At this time, the victim sent a text message to her sister. The victim sat up in order to pull her underwear back up, only for the applicant to push her back down. She continued to protest as he pushed her down onto her back and pulled her underwear off at the same time. He then pushed her bra down and sucked the nipple on her right breast.[3] He used his hands to force her legs open, but she was able to close them. He knelt down and used his arms to open her legs and began to lick her vagina and clitoris. He forced his tongue into her vagina.
[3]This act formed the factual basis for the charge of indecent assault.
The victim kept trying to push away the applicant’s head and chest with little success. She begged him to stop. He then put his body weight on her and forced his penis into her vagina. She pushed her hands into his lower abdomen to push him off, but he pushed harder into her. He continued for about five minutes.
The applicant then tried to lift the victim off the couch to move her to a different position. He grabbed her by the wrists and forced her upright on the couch. Her legs were in a kneeling position, and she was unable to move. He then pushed her so that her back hit the couch and raised her hands above her head, forcing his body onto her. It was at this point that he inserted his penis into her vagina again. The penetration lasted about five minutes. She continued to resist. He then whispered in her ear that this was the first time that he had ever raped someone, to which she replied, ‘Are you fucking serious? I hope you got the wish you wished for.’ She started crying.
The applicant and the victim then moved to the other end of the couch. He inserted his penis into her vagina again. The victim continued crying and started yelling loudly at the applicant, telling him to stop. She also told him that she did not want to have sex with him because she had only come to his house to live. During this instance of penetration, the victim held a cushion over her face while she continued to cry and protest.
The applicant suddenly stopped and removed himself from the victim. He then tried to touch her thigh with his hand. She told him not to touch her, to which he replied, ‘What’s wrong?’ The victim got up from the couch, grabbed her clothes and phone and ran to the bathroom. The applicant twice told the victim not to tell her sister what had happened: once in the bathroom while the victim was showering and again by text message. The victim sent text messages to her sister and her partner. She spoke to her sister over the phone and reported the incident to police. By the time that the police arrived, the applicant and his vehicle were no longer at the premises. The police found the victim to be sober and visibly upset.
Personal circumstances of the applicant
The applicant was 35 at the time of the offending. He was born in the Punjab region of India and arrived in Australia in 2008 on a spousal visa. Since 2009, following a breakdown in the relationship the subject of that visa, the applicant resided in Australia as an unlawful non-citizen. He moved in with the victim’s elder sister in April 2014.
The applicant had worked in the ‘black economy’ as a truck driver between 2009 and 2015, largely doing long-haul work. He had sent approximately half of his income to his family in India. He was responsible for the ongoing care of his 30-year-old sister who lived with her elderly father in India. The applicant had no particular ties to Australia.
The applicant had been held in immigration detention since 2015. He had no prior convictions in Australia or India.
Sentencing remarks
The sentencing judge made the following observations regarding the applicant’s case at trial:
It is clear from the defence conducted in this matter that you maintained a belief in her consent to the sexual acts you performed upon her. Nevertheless you have been convicted following a trial and I accept that the circumstances are as described essentially in [the victim’s] evidence-in-chief.[4]
[4]DPP v [Underwood] (Unreported, County Court of Victoria, Judge Dyer, 26 May 2017) (Sentence) [4] (‘Sentencing remarks’).
The sentencing judge described the applicant’s offending as ‘inherently violent, notwithstanding that there were no long term physical injuries’ to the victim.[5] The judge had regard to the circumstances of the offending, the age disparity between the applicant and the victim, the victim’s ‘obvious emotional state’ prior to the offending and the applicant’s physical stature compared to the victim.[6] At trial, counsel for the applicant described the offending as a situation where ‘passion overcame reason’. The judge accepted this as a reasonable description of how events unfolded but nonetheless said that the offending was ‘inherently a violent attack upon any victim’.[7]
[5]Ibid [5].
[6]Ibid.
[7]Ibid [6].
The sentencing judge accepted that the applicant’s conduct after the incident in asking the victim if anything was wrong ‘is perhaps consistent with [his] lack of appreciation of the serious nature of [the] offending.[8] Referring to comments that are contained in a victim impact statement signed by the victim on 19 April 2017, the judge noted that the offending has had a severe emotional impact upon her.[9]
[8]Ibid [7].
[9]Ibid.
Having noted that the applicant had no particular ties to Australia, the sentencing judge said that it had not been argued on behalf of the applicant that ‘the sentence should take into account that [he had] been deprived of the ability to continue living legally in this country’.[10] The judge said that he was assisted in this regard by the Court of Appeal decision in Nguyen v The Queen.[11]
[10]Ibid [9].
[11]Ibid, citing Nguyen v The Queen (2016) 311 FLR 289.
The sentencing judge was satisfied that the applicant’s prospects of rehabilitation are ‘relatively good’.[12] In this regard, he noted that the applicant had no prior convictions and said that he was ‘still a relatively young man’.[13]
[12]Sentencing remarks [10].
[13]Ibid.
The sentencing judge turned to the sentencing guidelines in s 5(1) of the Sentencing Act 1991. He regarded general deterrence and denunciation of the offending as the primary sentencing considerations. He also considered that the applicant’s ‘previous good record’, his reasonably good prospects of rehabilitation and the circumstances of his lack of citizenship status ‘militated against the need to have particular regard to considerations of specific deterrence or community protection’.[14] The judge was also mindful of the impact of the offending upon the victim.[15]
[14]Ibid [11].
[15]Ibid.
The sentencing judge also addressed current sentencing practices for rape. He examined the sentences imposed in a number of cases to which counsel for the applicant at trial had drawn his attention.[16] The judge concluded:
In your case I regard the offending in respect of the three charges of rape as fitting within the mid-range of seriousness. I accept that there are few aggravating features, although the offending involved three separate charges, and the principle of totality must be considered where the entirety of the offending occurred over a period of probably no more than 30 minutes.
The circumstances of the offending in relation to Charge 1, that is the indecent assault, could reasonably be described as coming within the lower range for that offence.
Nevertheless the various authorities relied upon by [counsel for the applicant] cannot ultimately determine the exact sentence which punishes an offender to the extent and in a manner which is just in all the circumstances. This task must fall to the discretion of the sentencing judge after taking into account the relevant legal principles. It remains ultimately an exercise of instinctive synthesis.[17]
[16]Ibid [12]–[19]. The cases were DPP v Lockington [2016] VCC 1082; DPP v Bullmore [2016] VCC 956; DPP v Coronado [2015] VCC 1859; Singh v The Queen [2014] VSCA 250; Anderson v The Queen (2013) 230 A Crim R 38; Hajar v The Queen [2015] VSCA 233.
[17]Sentencing remarks [20]–[22] (citation omitted).
Proposed ground of appeal
The applicant seeks leave to appeal his sentence on the ground that the sentences imposed on the charges of rape, the orders for cumulation, non-parole period and total effective sentence: (a) are manifestly excessive, (b) are outside the range of sentences reasonably open in the circumstances of the offence and the offender, (c) are inconsistent with current sentencing practice for rape and (d) resulted in a total effective sentence and non-parole period that was manifestly excessive.
The applicant’s submissions
The applicant contends that the sentences imposed on the individual charges of rape are manifestly excessive. In support of this contention, the applicant points to the objective circumstances of the offence and, in particular, the following matters in mitigation:
(a) his prior good character;[18]
[18]The applicant cited [15] of the Sentencing remarks in support of this factor; however, nowhere in the Sentencing remarks did the sentencing judge comment on the character of the applicant.
(b) his having no prior, or subsequent, convictions or pending matters in Australia or in India;
(c) his employment history as a long-haul truck driver in Australia;
(d) the fact that he is facing his first term of imprisonment;
(e) as a foreign national who cannot speak English, his experience in prison potentially being more onerous;
(f) his service of nearly two years in immigration detention, which is not counted as pre-sentence detention pursuant to s 18 of the Sentencing Act 1991;[19]
[19]See Transcript of Plea, DPP v [Underwood] (County Court of Victoria, Judge Dyer, 11 May 2017) 22. The applicant argued on the plea that the time that he had spent in immigration detention could be taken into account ‘in a Renzella-type way’, referring to R v Renzella [1997] 2 VR 88. The judge later told the prosecutor that the period of immigration detention is ‘a matter that [the judge] would nevertheless have to put into the mix’, to which the prosecutor replied, ‘I agree … It’s relevant in the general sense … It’s part of the overall factors as to the accused’s position … His life situation is one where he’s been in Commonwealth detention as a result of being an illegal immigrant for a period of two years … One can’t ignore that. It’s a relevant circumstance to take into account’: at 27. However, the prosecutor said that this situation was different to a situation in which Renzella could apply. The judge concluded that he could do nothing more than say that it was a life factor that he will take into account in sentencing the applicant: at 28–9.
(g) isolation from his family members in India, including his father, who is elderly and has heart problems;
(h) there being little need to have regard to specific deterrence or community protection, given the applicant’s circumstances; and
(i) the applicant’s relatively good prospects of rehabilitation.
In respect of the objective gravity of the charges of rape, the applicant contends that the offending was not protracted,[20] but rather spontaneous and unpremeditated.[21] Further, the applicant contends that his conduct after the incident in asking the victim if anything was wrong is relevant to the assessment of his moral culpability. It is to be recalled that the sentencing judge said that this conduct ‘is perhaps consistent with [his] lack of appreciation of the serious nature of [the] offending.[22]
[20]The applicant relies upon the sentencing judge’s finding that ‘the offending occurred over a period of probably no more than 30 minutes’ (Sentencing remarks [20]).
[21]The applicant relies upon the sentencing judge accepting that the offence was one in which ‘passion overcame reason’ (Sentencing remarks [6]).
[22]Sentencing remarks [7].
In relation to current sentencing practices for rape, the applicant contends that ‘the sentence imposed was beyond, or in excess of, the punishment that would ordinarily be imposed for offending of this nature and quality.’ He argues that the sentences imposed in Singh v The Queen,[23] Hajar v The Queen,[24] Anderson v The Queen[25] and Coronado v The Queen[26] are relevant to the assessment of current sentencing practices for rape.[27] The applicant submits that the sentences imposed on the individual charges of rape, and the total effective sentence, are inconsistent with current sentencing practice and are manifestly excessive.
[23][2014] VSCA 250.
[24][2015] VSCA 233.
[25](2013) 230 A Crim R 38.
[26][2016] VSCA 86.
[27]These authorities were provided to the sentencing judge as a sample of cases that were consistent with current sentencing practices for rape.
Finally, the applicant contends that the orders for cumulation were excessive. According to the applicant, the offending was effectively ‘one transaction’.[28] The applicant argued that, if some cumulation was required because of his designation as a ‘serious offender’, ‘the question of totality still loomed large’.[29] The proper application of the totality principle meant that concurrency ‘should have run much further’. The applicant says that there was not insignificant cumulation on every indictable charge, leading to a sentence that was disproportionate and excessive, especially where there was a powerful subjective case and in the light of the importance of totality as a limiting constraint on sentencing power.
[28]See Transcript of Plea, DPP v [Underwood] (County Court of Victoria, Judge Dyer, 11 May 2017) 22. The applicant made this submission on the plea. The judge said that he was ‘mindful of that’.
[29]In this regard, the applicant cited McCartney v The Queen (2012) 38 VR 1 and Postiglione v The Queen (1997) 189 CLR 295.
Analysis
To establish the ground of manifest excess, the applicant must demonstrate that the sentence or sentences imposed by the sentencing judge were wholly outside the permissible ranges of reasonable sentences.[30] In DPP (Cth) v Brown,[31] this Court said:
[30]R v Boaza [1999] VSCA 126 [42].
[31][2017] VSCA 162.
Given the discretionary nature of sentencing, the grounds of manifest excess and manifest inadequacy are difficult to establish. In Karazisis, Ashley, Redlich and Weinberg JJA said:
As with the ground of manifest excess, the ground of manifest inadequacy is a stringent one, difficult to make good. Error of this kind will not be established unless the appellate court is persuaded that the sentence was ‘wholly outside the range of sentencing options available’ to the sentencing judge. Put another way, it must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he/she did if proper weight had been given to all the relevant circumstances of the offending and of the offender.
Sentencing is a discretionary power confided to the sentencing judge and reasonable minds will differ as to what is the appropriate sentence in a particular case. There is no ‘correct’ sentence. Consideration of current sentencing practices assists in promoting consistency of approach. But sentences in other cases of the same offence are not precedents. Where those sentences can be seen to fall within a range, that range informs, but cannot determine, the appropriate sentence in a particular case.
Fairness demands that there should be reasonable consistency in sentencing. Further, in the absence of such reasonable consistency, the administration of justice is brought into disrepute. It is for the Court to determine what sentences should be considered in order to satisfy the norm of reasonable consistency. In practice, a court is assisted in fulfilling this obligation when the parties bring to the court’s attention cases which are said to be comparable to the case in hand. Usually, this is done by the preparation of tables of comparable cases. The utility of such tables will depend on how informative they are. Bare sentencing statistics may suggest a range in respect of sentences for a particular offence. But such statistics will not reveal the circumstances peculiar to a particular case.
Sentencing requires consideration of comparable cases: ‘Equal justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect.’ In Pham, the High Court identified the twofold purpose in the use of comparable cases:
(a)they ‘provide guidance as to the identification and application of relevant sentencing principles’; and
(b)analysis of them ‘may yield discernible sentencing patterns and possibly a range of sentences against which to examine a proposed or impugned sentence’.
In Nguyen v The Queen, Redlich JA (with whom Tate and Whelan JJA agreed) said:
These purposes advance the requirement of reasonable consistency. They advance the underlying value of equality under the law and the search for unifying principles. By the requirement that a discretionary decision must be made in conformity with well settled principles, the law promotes consistency in decision making and diminishes the risk of arbitrary and capricious adjudication.
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Reasonable consistency is thus achieved by the maintenance of an appropriate relativity between the impugned sentence and similar comparators. Manifest inadequacy or excess is usually demonstrated when an appropriate relativity is absent between the nature of the offending and matters personal to the offender, and sentences imposed in the most closely comparable cases. Thus for example, in Dao v The Queen Nettle JA (as he then was) emphasised that the consistency stated in Wong required that the impugned sentence be in step with ‘relevant comparators’.[32]
[32]Ibid [55]–[59] (emphasis added, citations omitted).
In the present case, the applicant has contended that the sentences imposed in respect of the individual convictions for rape are manifestly excessive. In my opinion, that cannot be made out. Other cases in which offenders have pleaded not guilty have involved sentences in the vicinity of five years.[33]
[33]See, eg, Flora v The Queen (2013) 233 A Crim R 320; Ali v The Queen [2013] VSCA 294; Evans (a pseudonym) v The Queen [2016] VSCA 11. In the latter case, the sentencing judge had imposed individual sentences of between four years and six months’ imprisonment and six years and six months’ imprisonment in respect of several rapes. The case concerned an application for an extension of time to apply for leave to appeal against sentence. This Court (Redlich and Beach JJA) refused leave. In doing so, the Court said (at [21]): ‘In our view, the applicant has no prospects of establishing any complaint of manifest excess in respect of the sentences and orders made by the judge. Contrary to the applicant’s submissions, we think that the individual sentences, the total effective sentence and the non-parole period imposed by the judge were entirely appropriate.’ See also Arie Frieberg, Fox and Frieberg’s Sentencing: State and Federal Law in Victoria (Lawbook, 3rd ed, 2014) 448 [6.225].
However, it does seem to me that it is reasonably arguable that the orders for cumulation are manifestly excessive. The applicant was sentenced as a ‘serious sexual offender’ from charge 3 onwards.[34] Section 6D(a) of the Sentencing Act 1991 provides that, in sentencing a serious offender, the Court, ‘in determining the length of that sentence, must regard the protection of the community from the offender as the principal purpose for which the sentence is imposed’. Further, s 6E presumes, in the case of a serious offender, total cumulation between any sentences in the absence of an order to the contrary. It provides:
Every term of imprisonment imposed by a court on a serious offender for a relevant offence must, unless otherwise directed by the court, be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed on that offender, whether before or at the same time as that term.
Accordingly, the sentencing judge had to take into account the parliamentary provision in determining whether to order any concurrency in respect of those charges.
[34]Sentencing remarks [28].
That said, the three rape convictions all arose out of a single incident which lasted slightly less than half an hour. It is reasonably arguable that the principle of totality was given insufficient consideration. I am fortified in this conclusion by the concession made by the respondent that it is reasonably arguable that the orders for cumulation are manifestly excessive.
The same circumstance also makes it reasonably arguable that the total effective sentence has offended the principle of totality.[35]
[35]Mill vThe Queen (1988) 166 CLR 59, 62–4; Azzopardi v The Queen (2011) 35 VR 43, 61–3 [61]–[69] (Redlich JA, with whom Coghlan and Macaulay AJJA agreed).
Conclusion
I would refuse leave to appeal on the ground that the individual sentence imposed in respect of each of the three convictions for rape is manifestly excessive.
I would grant leave to appeal on the ground that the orders for cumulation are manifestly excessive and that the total effective sentence infringed the principle of totality. If the appeal were allowed, it may be necessary to revisit the non-parole period.
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