B B A v The Queen [2010] VSCA 174

1 The appellant, BBA, pleaded guilty in the County Court at Melbourne, on 10 April 2008, to three counts of rape (counts 1, 3 and 5), three counts of administering a drug with the intention of rendering a person incapable of resistance and thereby enabling the appellant to take part in an act of sexual penetration with that person (counts 2, 4 and 6), one count of setting fire to a house with the intention of endangering life (count 7), and one count of having recklessly caused serious injury to another (count 8). The victim in all counts was MJA, the appellant's wife from whom he had separated, but with whom he was living at the time. The appellant was sentenced as a serious sexual offender on counts 3, 4, 5 and 6.

2 The appellant was sentenced, on 17 April 2008, as follows:

3 The appellant and his wife were married in 1975. They separated in February 2007. The appellant moved out of the matrimonial home. However, in April 2007, the appellant returned to live in the matrimonial home by reason of his ill health, and because he could not be cared for elsewhere. The appellant and his wife maintained their separation, and slept in separate bedrooms during this time.

4 The appellant's wife worked as a personal care attendant at a local nursing home. In mid April 2007, after she returned home from work, the appellant prepared a cup of tea for her. Unbeknown to her, the appellant had 'spiked' the tea with sleeping tablets. The wife occasionally took these tablets to assist her in sleeping. This was the subject of count 2.

5 After drinking the tea, the wife became drowsy and lost consciousness. While in that state, the appellant penetrated her vagina with his penis. The wife had no idea at that stage, or indeed on the following day, that she had been raped. She had gone to bed with her underpants on, but woke to find that they had been removed. She asked the appellant about that. He told her that he had removed her underpants 'to make her more comfortable'. This offending was the subject of count 1.

6 A week or so later the same scenario played out. On this occasion, the wife was still conscious when she went into her bedroom. She was aware of the appellant removing her underpants. She tried to push him away, and he responded 'I'm trying to help you'. She then lost consciousness. Once again, the wife was oblivious to what had then occurred. The appellant's actions gave rise to counts 3 and 4.

7 On 24 April 2007, a similar pattern of events took place. On this occasion, however, the wife did not immediately lose consciousness. Although disoriented, and having no control over her body, she was aware that she was being raped. Shortly after having been penetrated, she lost consciousness. The appellant's conduct on this occasion gave rise to counts 5 and 6.

8 On the same evening, immediately after having raped his wife, and while she was still unconscious and lying on her bed, the appellant doused her bedroom with petrol and set fire to the room. That act gave rise to count 7.

9 The wife woke to the sensation of being burnt. Her bedroom was ablaze, and she managed to roll out of the window to escape the flames. She suffered grade 2 burns to nine per cent of her body, and also back injuries from the fall. The appellant's conduct in abandoning his wife after setting fire to the house, and thereby causing her serious injury, gave rise to count 8.

10 In his Full Statement of Grounds, filed on 25 June 2009, the appellant relies upon the following grounds of appeal:

1. The sentence is manifestly excessive.
2. The learned sentencing Judge erred in his assessment of the relevance of the psychiatric evidence.
3. Abandoned.
4. The learned sentencing Judge erred in failing to pass a sentence that avoided a double punishment given the common factual elements to the offending the subject of Counts 7 and 8.

11 The sentencing judge commenced by observing that the offences to which the appellant had pleaded guilty were all serious, having regard to the maximum penalties available for those offences. The Crown had submitted that the most serious of them was count 7, the count of arson with the intention of endangering the life of the appellant's wife. His Honour accepted that submission, characterising the appellant's conduct as a 'serious example of a serious offence'. He noted that an accelerant had been used, and that extensive damage had been done to the house. The appellant had been fully aware that his wife was unconscious inside the bedroom at the time he lit the fire.

12 The judge then went on to observe that the appellant's wife had suffered significant burns, and back injuries, which were the subject of count 8. He accepted that count 8 overlapped to some degree with count 7, but regarded the two as distinct.

13 His Honour said that an aggravating feature of counts 7 and 8 was that they 'arose out of the breakdown of a long relationship'. He did not elaborate upon that proposition. He correctly described the appellant's conduct as 'outrageous'.

14 With regard to the various counts of rape, and administering a drug for the purposes of sexual penetration, his Honour described these as forming a 'serious pattern of conduct'. Because the wife declined to provide a victim impact statement, the judge concluded that the effects upon her of this aspect of the appellant's offending had not been long-lasting. It is important to note that the wife gave evidence that she was prepared to resume the marital relationship. Nonetheless, as his Honour said, the offences committed constituted a violation of her bodily integrity, and a breach of the terms upon which she was prepared to have the appellant back in the matrimonial home in his time of need.

15 In assessing the appellant's moral culpability, the judge noted that there had been a history of depression, and an attempted suicide about three years before the commission of these offences. Shortly before the commission of these offences, there had been a recurrence of the appellant's depression, so much so that in late March 2007 he had written a suicide note to his eldest daughter.

16 On 21 April 2007, the appellant telephoned his employer, and indicated that he would not be in again. On one view, and in the context of all that was happening, that was an intimation on the part of the appellant that he intended to kill himself. On 23 April 2007, his employer sent him home from work. The employer considered the appellant to be irrational, and told him to obtain medical assistance. The following day, the appellant spoke to his employer again. The appellant said that he had seen a doctor, and that he had been referred for counselling. The appellant's wife said that during the time he was staying at the matrimonial home, in April 2007, he was saying strange things.

17 During the course of the plea, the appellant's counsel tendered a psychiatric report from Dr Lester Walton. Dr Walton was of the view that, at the time of the offending, the appellant had been suffering a 'major depressive disorder'. One of the factors leading to that condition was the appellant's inability to deal with his wife's gambling problems. Dr Walton said:

And it seems that, perhaps until quite recently, she has shown little inclination towards addressing the issues herself. This situation led to [BBA] becoming suicidally depressed around five years ago and the same emotional state re-emerged leading up to the offending, the situation being additionally aggravated by the fact that [BBA] had succumbed to a serious bout of cardiac disease as well. In this context it is not surprising that what must have been this man's long term experience of considerable anger surrounding his wife's misconduct finally surfaced and was expressed in his destructive behaviour. This does not amount to a formal defence of mental impairment, although it is getting close. I certainly would see this man's misconduct as substantially a psychiatric phenomenon, rather than conventional criminality as such...

I believe it would be open to the sentencer to apply the principles enunciated in Verdins. It is most reassuring that [BBA] is not a generally irresponsible person, quite the opposite seemingly. It certainly is my view that his depressive condition made a central contribution to his misconduct and now that the condition has improved substantially, that will also contribute to lowering the risk of recidivism. I doubt that undue weight would need to be placed on specific deterrence, at least from a psychiatric perspective.[1]

18 The appellant's wife confirmed a number of elements of Dr Walton's report, in particular, that she had a gambling problem which had resulted in financial stress to the family.

19 It was submitted on behalf of the appellant that this was indeed a case that called for the application of the principles in R v Verdins.[2] In particular, it was said that the appellant's depression ought to be regarded as reducing his moral culpability for these offences. His Honour said that he accepted Dr Walton's opinion that the appellant was suffering from a major depressive disorder. However, he went on to say:

On the issue of the causal connection between your depressive condition and the criminal conduct here, the opinion of Dr Walton which I have quoted is somewhat equivocal when he refers to "...what must have been this man's long-term experience of considerable anger surrounding his wife's misconduct finally surfaced and was expressed in his destructive behaviour."

What does this mean? If it refers to a motive for your conduct in committing arson, endangering life and recklessly causing injury, it is understandable. It is consistent with the threats that you had made previously. I infer from the opinion that it means that your ability to exercise proper judgment and make calm and rational decisions and choices was impaired. The Crown submitted however that you must be taken to have known of the impact of taking sleeping tablets. You had done the same thing on two previous occasions and had taken them yourself. There was on the Crown's submission a degree of premeditation in relation to the conduct covered by Counts 1-6. Further, Dr Walton does not specifically address the effect of your mental condition on your sexual misconduct. He makes no reference to your own admission in the record of interview that your motivation was sexual gratification. Dr Walton, also refers to the fact that you advised him that you were drinking on the night, yet in your record of interview, you deny drinking.

In relation to the sex related offences, I am not satisfied on the basis of the report of Dr Walton and the submissions of your counsel that your moral culpability is lessened substantially. In relation to Counts 7 and 8, Dr Walton does provide support for the proposition that the offending was "substantially a psychiatric phenomenon", and thus your moral culpability is somewhat lessened.[3]

20 His Honour then summarised the appellant's personal circumstances. He noted that the appellant was aged 53 at the time of the plea, that he had been fully employed throughout his working life, that he had six children, the youngest of whom was aged 15, and that his relationship with his wife had been tumultuous. He further noted that the appellant had no prior convictions, that he had been a hard worker and had always been the breadwinner throughout the relationship.

21 The judge next observed that the appellant had suffered a stroke in 2005, and that he had been admitted to hospital for a heart condition in March 2007. While on remand, earlier in 2008, the appellant had suffered a second stroke, and spent several weeks in a medical ward at Port Phillip Prison. He was still suffering from residual symptoms of that latest episode.

22 The sentencing judge regarded as important the evidence given by the appellant's wife. She freely acknowledged her part in the difficulties of their relationship and indicated, as we have said, that she was prepared to reconcile with the appellant. She said that she was addressing her gambling problem, and added that it had taken the various incidents which led to the appellant's having been charged with these offences to give her insight into her own responsibility for what had occurred.

23 Having heard submissions from both the Crown and the defence, his Honour identified the relevant sentencing considerations. He took into account the appellant's early plea of guilty, entered at the first opportunity, and he found that there was remorse. The appellant had made full admissions to the police on the day of the final offending and his Honour concluded that, but for those admissions, the Crown would have had difficulty in prosecuting the first six counts. He described that latter factor as being strongly in the appellant's favour.

24 His Honour found, contrary to the Crown's submission, that the appellant had reasonable prospects of rehabilitation. He took into account the lack of prior convictions and the evidence of good character.

25 With regard to Verdins, the judge concluded that the appellant's mental condition, during April 2007, lessened his moral culpability for the arson and recklessly causing serious injury counts. However, he specifically found that those of the Verdins principles concerned with reduced moral culpability (that is, principles 1 to 4) were of only minimal relevance to any of the first six counts. Nonetheless, he accepted that principles 5 and 6, those dealing with the extra burden of imprisonment imposed upon the appellant by reason of his mental state, were relevant in relation to all counts.

26 In our opinion, there is no substance to ground 1. Each of the individual sentences imposed, as well as the total effective sentence, was within range. The sentencing judge specifically took into account the appellant's early plea of guilty, his remorse, his lack of prior convictions, his work history, his mental state, and the forgiveness offered by his wife. He synthesised each of these mitigating factors to produce a result that, in our view, was within the range, and indeed might well be regarded as moderate.

27 The sentencing judge had regard to all relevant sentencing principles and, especially, the importance in a case such as this of general deterrence and denunciation. These were all serious offences, each of them aggravated by the fact that they involved a breach of trust. A total effective sentence of nine years for offences of this gravity cannot in any meaningful sense be described as 'manifestly excessive'.

28 The conduct embodied within count 7, in particular, required a significant measure of punishment. For the appellant to have set fire to his wife's bedroom at a time when he well knew that she was lying unconscious in bed, having earlier been drugged by him, was an act of wanton depravity.

29 As Maxwell P recently observed in R v Abbott:[4]

It follows that the ground of manifest excess will only succeed if it can be shown that no reasonable sentencing judge could have imposed this sentence on this offender in these circumstances. That is a stringent requirement, difficult to satisfy.[5]

31 This ground has given us some cause for concern. The evidence of Dr Walton was that the depressive condition suffered by the applicant in April 2007 'made a central contribution to his misconduct'. In other words, his mental state should be viewed as lessening his moral culpability. The sentencing judge accepted that evidence but, as has been seen, only in relation to counts 7 and 8.

32 His Honour did not specify, with any degree of precision, why Dr Walton's opinion carried less weight when applied to the sexual offences than it did in relation to the arson and serious injury counts.

33 There is nothing inherent in the nature of sexual offending which makes it appropriate to give less weight to a major depressive disorder in reducing moral culpability than would apply in relation to offences of a different order. Seemingly, the sentencing judge took the view that counts 7 and 8 involved a loss of self-control, and that the appellant's condition explained his impaired judgment. His Honour was not prepared to make the same allowance in relation to the sexual offending, presumably because he regarded that conduct as, to some degree, rational and premeditated.

34 With respect, the distinction that his Honour drew can only partially be maintained. Verdins is capable of applying to premeditated offending, just as it is to spontaneous acts of violence. The Verdins principles ought not to have been artificially confined in the way that they were.

35 However, even if it be accepted that this amounted to specific error, it does not follow that the appeal should be allowed. Section 568(4) of the Crimes Act 1958 (Vic) empowers this Court to quash a sentence passed below, and pass such other sentence 'in substitution therefor', but only if the Court 'thinks that a different sentence should have been passed'.

36 We are not persuaded that the error embodied in his Honour's reasons regarding this point materially affected the sentences actually imposed on counts 1 to 6. These sentences were, both individually and collectively, very light, even making allowance for the appellant's distressed condition. Depression would not have affected, to any significant degree, the appellant's cognitive capacity in relation to these offences. In our view, it is inconceivable that any lesser sentence could be appropriate. If anything, the re-sentencing process might lead to a heavier sentence being imposed in relation to those counts.

37 For these reasons, even if ground 2 is made out, it does not lead to the appeal being allowed.

38 We are not persuaded that this ground is made out. The elements of the two offences are separate and distinct. So too is the conduct which constitutes the actus reus of each offence. In a sense, it can be said that a cause of the serious injury was the failure of the appellant to take steps to rescue his wife after he had lit the fire in the bedroom.

39 It is one thing to set fire to a building, thereby endangering someone else. It is quite another to have that action result in serious injury to that person. The sentencing judge was entitled, in our view, to treat these two offences as warranting a measure of cumulation. It was open to make part of the sentence on count 8 cumulative upon the base sentence imposed on count 7, and also to do so to the degree that his Honour did.

40 For these reasons, the appeal should be dismissed.

[1] R v [BBA] (Unreported, County Court of Victoria, Judge Murphy, 17 April 2008), [16].

[2] [2007] VSCA 102; (2007) 16 VR 269 ('Verdins').

[3] R v [BBA] (Unreported, County Court of Victoria, Judge Murphy, 17 April 2008), [18] - [20] (emphasis from original).

[4] [2007] VSCA 32; (2007) 170 A Crim R 306.