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[2019] VSCA 21
Court of Appeal (Vic)
2019-02-14
Mr J, Beach JA
Original judgment source is linked above.
CRIMINAL LAW - Conviction - Application for leave to appeal - Judge's charge - Whether judge's charge unbalanced - Application to discharge jury before charge completed - Application to discharge jury ruled premature by judge - Application to discharge jury not renewed at completion of charge - Consideration of whole charge - Charge not unbalanced - Exceptions to charge not taken - Error, irregularity or miscarriage of justice contended for by applicant not reasonably arguable - Application for leave to appeal refused.
CRIMINAL LAW - Sentence - Appeal - Rape (2 charges), intentionally cause injury, threat to kill and common assault - Sentenced to total effective sentence of 21 years with non-parole period of 17 years - Serious sexual offender - Protection of community - Prior convictions for rape - Revenge rape - Offending while serving suspended sentence - Offending in breach of intervention order - Not guilty pleas - No remorse - Sentence not manifestly excessive - No error in sentence - Appeal dismissed.
1 On 1 November 2017, following a nine-day trial in the County Court, the applicant was found guilty of one charge of common assault (charge 1), one charge of making a threat to kill (charge 2), two charges of rape (charges 3 and 6) and one charge of intentionally causing injury (charge 4).
2 On 22 March 2018, the applicant was sentenced as follows:
Make threat to kill (Crimes Act 1958 s 20)
Rape (Crimes Act 1958 s 38(1))
Intentionally cause injury (Crimes Act 1958 s 18(1))
Rape (Crimes Act 1958 s 38(1))
3 Pursuant to s 6F of the Sentencing Act 1991, the applicant was sentenced as a serious sexual offender in respect of charges 3 and 6. The applicant was sentenced as a serious sexual offender because he had previously been convicted of three counts of rape for which he had been sentenced to a term of imprisonment.[1]
4 The applicant now seeks leave to appeal against his conviction and sentence. The sole proposed ground of appeal against conviction is:
The trial miscarried by reason of the judge's charge in particular:
(a) The judge's charge was so unbalanced that it resulted in a substantial miscarriage of justice.
(b) The judge's charge put forward arguments the prosecutor did not make, resulting in a substantial miscarriage of justice.
The proposed grounds of appeal against sentence are as follows:
5 Between 2010 and August 2014, the applicant and the complainant were in what was described at trial as an 'on and off' relationship. During the course of the relationship, there were occasions when the applicant was violent and verbally abusive towards the complainant. The relationship ended following an incident in Williamstown which resulted in the applicant being charged with a number of offences of violence against the complainant.
6 On 18 February 2015, following a plea of guilty to the offences of recklessly causing injury to the complainant and conduct endangering serious injury to the complainant, the applicant was sentenced to an aggregate term of imprisonment of 15 months. Six months of this sentence was suspended by the magistrate. On the same day, an intervention order was made in favour of the complainant against the applicant.
7 On 10 May 2015, the applicant was released from custody, having served the unsuspended portion of his sentence.[2] Upon the applicant's release, he had 6 months' imprisonment remaining in suspension for the 12 month operational period of the sentence.
8 On Sunday 31 May 2015, the complainant moved into a unit in Maidstone occupied by Douglas Shannon. The events giving rise to the charges against the applicant were alleged to have occurred at Mr Shannon's unit on Friday 5 June 2015. The Crown case was that on the morning of that day (5 June), the applicant arrived at the unit. He had a box of cask wine with him, and also a copy of the brief of evidence relating to the Williamstown matter. The applicant, Mr Shannon and the complainant all commenced drinking wine soon after the applicant arrived.
9 At approximately 10.30 am, Mr Shannon left his unit with a social worker to attend an appointment. He was away until about 12:00 pm. Mr Shannon gave evidence at trial that he did not witness any of the events giving rise to the charges against the applicant.
10 At trial, the complainant gave evidence that the applicant committed the various acts alleged by the Crown that constituted the offences with which the applicant was charged.
11 In summary, the complainant gave evidence that, while they were at the unit, the applicant confronted her in relation to her having gone to the police following the Williamstown incident. She said that he verbally abused her. She said that he then struck her in the face with the Williamstown brief of evidence (charge 1 - common assault). She said the applicant then threatened her, saying words to the effect, 'If you go to the police again, I will kill you' (charge 2 - making a threat to kill).
12 The complainant then said that she was sitting on a chair in the lounge room. She was menstruating at the time. The applicant pulled down her tracksuit pants and underwear, put on a condom and put his penis into her vagina. The complainant did not want him to have sex with her. She said to the applicant, 'Please don't do this' (charge 3 - rape). While the applicant was having non-consensual sex with the complainant, he placed a lit cigarette against her upper inner thigh, resulting in immense pain (charge 4 - intentionally cause injury). The applicant eventually took the condom off, put it into a plastic bag and left the unit with it.
13 The complainant gave evidence that the applicant returned a short while later and again brought up the topic of the complainant going to the police. He slapped her face with his hand several times. By this time, the complainant had been to the bathroom and had put her pants back on.
14 As the complainant sat on a chair, the applicant suddenly pulled her towards him and then forced her to turn over. He flipped her over so that she was bent face down, kneeling over the chair. The complainant said, 'Please don't. Please stop'. The applicant then forced his penis into her anus (charge 6 - rape). It was very painful. The applicant ejaculated into a towel which he put into a shopping bag. He took the bag out the front door, before returning empty handed. The complainant gave evidence that the applicant 'seemed very happy with himself'; 'He just laughed'.
15 The principal witness at the trial was the complainant. In addition to police and forensic evidence, the Crown also called Mr Shannon, the social worker who took Mr Shannon to his appointment on 5 June (Mr Farley), a witness to whom the complainant spoke at Salvation Army Social Housing later on 5 June, and the person who drove the complainant to Mr Shannon's unit on 31 May, a Ms Sammut.
16 Evidence was tendered at trial of a physical examination carried out on the complainant on the evening of 5 June. The physical examination revealed various bruises, some small irregular scars around the complainant's groin and inner buttocks, 'a small blistered section visible at the inner upper right thigh', and 'two extensive areas of abrasion to the anus at the 12 o'clock and 6 o'clock positions'.
17 The complainant gave the medical examiner a history of the sexual assaults she alleged had been committed by the applicant. In that history, she said that there had been a penile/vaginal penetration, a penile/anal penetration and an ejaculation onto her breasts. Swabs from various parts of the complainant's body were taken and later submitted for DNA analysis. The evidence was that the swab taken from the complainant's breast area was found to contain the applicant's DNA. The applicant's DNA was not found in the other swabs taken by the medical examiner.
18 The applicant did not call any witnesses or give evidence at trial. No record of interview was tendered. The applicant's position at trial was that the complainant was a liar and should not be believed in relation to any of her allegations against him. Consistently with that position, the applicant's counsel cross-examined the complainant at length, putting many propositions to her and suggesting to her that she had told lies in her evidence.
19 The cross-examination of the complainant included a suggestion that she performed oral sex on the applicant on 31 May, after which he ejaculated on her chest or top; a question about whether she had showered or washed between that time and 5 June; a question about whether she had ever harmed herself by burning her vagina with cigarettes; and a question about whether she had penetrated her own anus with an object during the time she was at Mr Shannon's unit. All of these questions were answered in the negative by the complainant. Similarly, many propositions that were put in cross-examination, that appeared to be asked for the purpose of attempting to show that the applicant had not committed the charged offences, were denied.
20 During a break in the cross-examination of the complainant, and in the absence of the jury, the judge expressed concern to defence counsel about the form of his cross-examination. The form of the cross-examination appeared to the judge to give rise to an issue about what was, and was not, evidence. Specifically, the judge was concerned that propositions that were being put as 'what [the accused] says happened', and what was '[the accused's] version of events', was not evidence. The judge told defence counsel that she was going to have to say something about this to the jury. Defence counsel said that he would stop saying to the complainant that it was part of his job to put what the accused says happened. He also said he would stop saying to the complainant in cross-examination that he was 'obliged to put [the accused's] version of events'.
21 In final address, the prosecutor referred to defence counsel's cross-examination of the complainant. He characterised the cross-examination as 'trivial nibbling around the edges'. He submitted that the jury should accept the complainant as an honest and reliable witness about the main events, and that her evidence had independent support from the medical examination and subsequent finding of the applicant's DNA on the complainant's breast area.
22 In his address, defence counsel said that the 'crux of the case' was the credibility, reliability and honesty of the complainant. He then identified 12 to 15 matters that he relied upon in support of his contention that the complainant's version could not be accepted. In advancing these submissions, defence counsel referred to 'inconsistencies' between the evidence of the complainant and other witnesses, matters which he contended were 'implausible' and internal 'inconsistencies' in the complainant's account.
23 The judge's charge went for a little over a day. Having regard to the proposed ground of appeal against conviction, it is necessary to describe parts of the charge in some detail.
24 The charge commenced shortly prior to lunch on the first day, continued for the balance of the afternoon, continued the following morning, and concluded shortly after lunch on its second day. At the commencement of her charge, the judge said:
These directions, it is called a charge, this charge will be done essentially in three parts, although there will be multiple directions and there may be some overlap between the parts. But the first will be I will remind you of several important principles of law that apply to the case.
...
Second, I will tell you the issues that you need to decide and I will refer you to some of the evidence that relates to those issues and to the arguments from the prosecution and defence counsel. In doing this, I will have to be selective, that is in my references to the evidence I will have to be selective. The mere fact that I do not mention certain parts of the evidence does not mean that evidence is not important.
...
Third, I will explain what verdicts you may return in the case and how you may wish to approach your discussion of the case in the jury room.
25 A short time later, the judge gave a conventional direction that the jury was bound to follow her directions of law, but was not bound by any comments that she might make about the facts or the evidence. The judge then reviewed the role of counsel, saying that comments and arguments are not evidence. She then spent a little time giving a standard direction that it is the answer to the question that is the evidence, and not the question itself. The judge used the example:
Imagine counsel says to a witness, 'The car was blue, wasn't it?' and the witness replies, 'No it wasn't'. Given that answer, there is absolutely no evidence that the car was blue.
26 Shortly after lunch on the first day of the charge, the judge turned to the suggestions made by the accused's counsel during the cross-examination of the complainant. The judge said:
Now, first let me summarise. A number of suggestions were made in cross-examination of [the complainant] by [the accused's counsel] that may have left you with an impression, a false impression about the state of the evidence.
27 Her Honour then, in approximately 25 pages of transcript, clearly delineated those suggestions made in cross-examination which had not been acceded to by the complainant, saying that these were not evidence. During the course of this part of the charge, the judge made references to prosecution arguments and made comments that were favourable to the prosecution. For example, the judge said in relation to the DNA finding:
But again, it is a comment from me, in order for that DNA to have been deposited by a sexual act in the way hypothesised, not only would it have to be there, but it would have to stay there, and that is why it has been put she did not have a shower, you might think, in between. Her evidence is she did have a shower in between the first day of arriving and the date of this incident.
So if you accept the unchallenged DNA evidence given by Bianca Laan, the results of the swab taken from [the complainant's] breast area showed the presence of the accused's DNA in the sperm fraction. If his DNA was deposited on [the complainant's] breast area, how did it get there? How long has it been there? And you know that very soon after the alleged incident on 5 June, [the complainant] spoke to the police and she spoke to the doctor and she told the doctor that the accused ejaculated on her breasts, possibly on her top.
So that is the Crown evidence. [The complainant's] evidence in the final analysis is, no, she did not perform oral sex. No one witnessed her performing oral sex on the accused on the Sunday or the Monday. The most it gets is that on one version, but which she, [the complainant], disputes, is there was kissing, but there is no eyewitness to any such oral sex.
28 A little later (and still within the same 25 or so pages of transcript) the judge turned to the subject of inferences and circumstantial evidence. The judge identified 'some of the inferences and the circumstantial evidence that the Crown relie[d] upon in support of its case of guilt of the accused'.
29 Shortly before the mid-afternoon break, the judge said:
Anyway, so the Williamstown incident, it is not in dispute. The prosecution says there are a number of ways that evidence is relevant. It not only goes to motive, but the prosecution case is that it puts into context the charged events, namely, that the accused had possession of the brief, he had the opportunity to commit the crimes, he had motive to commit the crimes, he showed the brief to Mr Shannon, they both called her a dog, that Mr Shannon knew what the consequence of that was and [the complainant] full well understood what it meant to be called a dog.
On top of that the prosecution says the finding of the accused's DNA evidence, the DNA from the sperm fraction on the chest, the physical injuries that were found to her anus, I have gone through that, all together circumstantial evidence and direct evidence that the prosecution says should lead you to conclude that the incident did happen, and it happened the way [the complainant] says it happened and for the reason that the Crown argues.
Regarding the calling of [the complainant] as a dog, I remind you of the text, SMS messages, they are in your jury folders. The evidence-in-chief is found at p 59. I will not take you to it. I think you will remember the evidence. Page 74, the meaning of 'dog'. This is [the complainant's] evidence. Cross-examination, well, you will remember all of that as well.
30 An exception was then taken by counsel for the accused. The exception, and her Honour's response, was as follows:
[ACCUSED'S COUNSEL]: Your Honour, the situation is that, in my understanding, we're some two and a bit hours into Your Honour's charge and we have yet to hear any of the arguments that I've put forward. In my respectful submission, the charge stands at this stage, it's wildly unbalanced.
HER HONOUR: Well, you'll have to wait till the end because I will be putting the arguments in. Has any direction that I have given, wrong in law at this stage?
[ACCUSED'S COUNSEL]: No, Your Honour, but
HER HONOUR: Is there any evidence misstated?
[ACCUSED'S COUNSEL]: No, Your Honour, but can I say this? In relation to the two directions you gave in relation to the assessment of the credibility of the witnesses, being Shannon and [the complainant], immediately after you said, 'This is how you assess their credibility', you posed the arguments that [the prosecutor] made in relation to [the complainant's] credibility and why she should be accepted. You did not direct - well, in my respectful submission, would be the logical place for my arguments to be put. In relation to Mr Shannon, Your Honour did the reverse. Can I say this, at the moment it's wildly unbalanced. I do not think it can be fixed, Your Honour, and I flag, at this early stage - well, I make an application now that this jury be discharged. They would be under no allusions as to Your Honour's view of these matters, no allusions at all.
HER HONOUR: Well, there's no high degree of necessity to discharge the jury at this point in time. In my view, I have not yet completed my charge. I haven't even got to the onus and standard of proof at this stage, I've not gone to the specific charges yet, there are other matters, general matters that need to be covered and I've not turned to the arguments generally either. I will ensure, as I have in my prepared charge, that both sides are put. Thank you. I won't call on you, [Mr prosecutor].
31 The charge continued for the rest of the afternoon on the first day and into the following day without objection. At lunchtime on the second day, the judge asked for exceptions. There were no exceptions. The accused's counsel said that he would wait until the end of the charge. He said he still had 'real concerns about the unbalanced nature of the first part of the charge and [he did not] think they [could] be fixed at [that] stage'. The judge then said that she thought her summary of Mr Shannon's evidence was more favourable to the accused. Counsel for the accused responded, 'This afternoon, yes'.
32 The judge concluded her charge by summarising the addresses of counsel. She summarised the address of the prosecutor first, and then the address of the accused's counsel. The jury retired to consider its verdict. Counsel were asked whether they had any exceptions. The accused's counsel responded that he had no exceptions. There was, however, a redirection as a result of an issue taken by the prosecutor. No issue about that redirection arises in this Court.
The application for leave to appeal against conviction
33 The application to discharge the jury was made approximately an hour and 20 minutes into a charge that ultimately took approximately five hours. At the point at which the application was made, there was some force in the submission that the charge was not balanced. A fair reading of the trial transcript, however, demonstrates that the lack of balance was largely due to the difficulty created by the form of the accused's counsel's cross-examination of the complainant.
34 The judge was rightly concerned that the jury may have had some difficulty separating the evidence actually given by the complainant from the assertions made to her in cross-examination. To that end, the judge set about clarifying the position. It is, perhaps, unfortunate that in so doing her Honour referred at times to arguments of the prosecution without putting the countervailing defence arguments.
35 The complaint made to the judge, upon which the discharge application was made, was a relatively limited one. It related to the recitation by the judge of the prosecutor's arguments in relation to the acceptance of the complainant's evidence and the non-acceptance of aspects of Mr Shannon's evidence. The judge responded by saying that the discharge application was premature because she had not charged on a number of topics, or given that part of her charge that summarised counsels' arguments. Indeed, the judge was barely one-third of the way through her charge when the discharge application was made.
36 In oral argument in this Court, senior counsel for the applicant broadened the area of complaint about the lack of balance in the early part of the judge's charge.
37 First, he submitted that an additional vice in the charge was that the section impugned at trial (and again in this Court) was given in the first part of the charge - a part that the judge had told the jury would be a reminder of 'several important principles of law that apply to the case'. It was submitted that, notwithstanding the judge's directions about comments made by the judge not being binding, the jury would have taken the judge's comments and what the judge said about prosecution arguments as being principles of law. Immediately, it may be observed that no such complaint or submission was made by the accused's counsel at trial.
38 Secondly, it was submitted that, while the judge referred to the defence arguments later in her charge, her references were cursory and not sufficient to redress the lack of balance that had been created in the early part of the charge. Put shortly, the applicant submitted in this Court that the judge's ultimate summary of the defence case and arguments was inadequate, and that the judge should have dealt with these issues more fully and in greater detail. Again, it may be observed that no such submission was made by defence counsel to the judge. To the contrary, at trial, the summary of Mr Shannon's evidence was accepted by defence counsel to be fair and, when exceptions were called for, no issue was taken about the judge's summary of the defence case and arguments of counsel.
39 There is no substance in either of these arguments. There was no reasonable possibility that the jury could have thought that the judge's recitation of some of the prosecutor's arguments constituted the conveying of some 'important principle of law'. The judge told the jury that there would be some overlapping in parts of her charge. Nothing she said could have been understood as conveying that there were discrete parts of the charge during which the judge was only performing one of the three tasks she identified at the commencement of the charge.
40 Similarly, the complaint that the judge's treatment of the defence case and arguments was inadequate must be rejected. In our view the judge's summary of defence arguments in her charge was appropriately detailed and thorough. We are fortified in this view by the fact that defence counsel who was immersed in the atmosphere of the trial did not make any complaint to the judge about her treatment of his client's case and arguments at the conclusion of the charge.
41 In his written case and oral submissions, the applicant advanced two further arguments that again were not advanced by defence counsel to the judge.
42 First, it was submitted that the lack of balance in the early part of the charge gave rise to a substantial miscarriage of justice because the statements sought to be impugned occurred at an early point in the charge 'when the jury's concentration upon the judge's words was likely to be at its greatest'. Reliance was placed upon an observation of Batt JA to this effect in The Queen v Mathe.[3] We interpolate, however, that Mathe was a very different case from the present case, involving (as Mathe did) the immediate trenchant criticism by the trial judge, at the start of a charge, of a final address that had only just then concluded.
43 Secondly, in his written case, the applicant asserted that the judge advanced an argument in support of the prosecution case that was not advanced by the prosecutor. The applicant contended that the judge attributed to the prosecutor an argument the prosecutor had not made. The argument involved an explanation of how the DNA findings fitted with the account of the complainant, by inviting the jury to accept the complainant's history to the medical examiner of an ejaculation on her breasts. Again, as we have said, no such complaint was made by defence counsel at trial.
44 There is no substance in either of these two arguments. As to the first argument, there is no basis for suggesting that the jury's concentration on that part of the charge the applicant seeks to impugn was (or may have been) any different from its concentration during the short period after lunch on the second day of the charge when the judge summarised the addresses of counsel. As to the second argument, while it may be said that the judge put the argument about the prosecution's reliance on the DNA evidence more succinctly than was put by the prosecutor, it is not correct to say that the argument was not put by the prosecutor. A fair reading of the prosecutor's address shows that the argument summarised by the judge was one that was relied upon by the prosecutor. Moreover, if in fact the argument had not been put by the prosecutor then we would have expected defence counsel to raise that matter with the judge.
45 A complaint about a lack of balance in a charge requires this Court to examine the whole of the charge in the context of the trial. It may be accepted that there was an initial lack of balance in the charge brought about by the judge's attempt to deal with the cross-examination of the complainant so as to make clear to the jury what was and was not evidence in the trial. The problem was largely created by the form of the cross-examination of the complainant. That said, when referring to arguments of the prosecutor during this part of the charge, it would have been preferable for the judge to also refer to any countervailing argument that had been made by the defence.
46 Such lack of balance as there was in the charge at the time objection was taken was, however, removed by the remainder of the charge, delivered over the rest of the first day of the charge and during its second day. Taken as a whole, in our view it cannot be said that the charge was unbalanced. The judge faithfully summarised the evidence and the arguments of counsel. The initial imbalance complained about by trial counsel was corrected.
47 When one examines the charge as a whole, there is no reasonable basis for contending that there was an error or an irregularity in the trial or, for some other reason, any substantial miscarriage of justice.[4] Again, we are fortified in this conclusion by the fact that trial counsel immersed in the detail and atmosphere of the trial did not renew his application for a discharge, and did not make any complaint as to a continued lack of balance, after his arguments had been summarised or at the conclusion of the charge.[5]
48 As has been said many times before (and particularly since the commencement of the Jury Directions Act 2015), it is the role of trial counsel to determine, in the context of the particular trial, whether a particular matter ought be the subject of objection or submission to the trial judge. Where exception was not taken by trial counsel, it may ordinarily be inferred that trial counsel made a forensic judgment, based on the atmosphere and context of the trial, that the particular matter was not detrimental to the interests of the accused at trial, and did not infringe, or adversely effect, the right of that accused to a fair trial.[6]
49 For these reasons, the application for leave to appeal against conviction must be refused.
The application for leave to appeal against sentence
50 In 1996, the applicant was convicted in the County Court on three charges of rape and one charge of recklessly causing injury. He was sentenced to a total effective term of 10 years and 9 months, with a non-parole period of 8 years and 9 months.[7] While, as the judge said, the applicant has a lengthy list of prior convictions and court appearances (including for offences such as armed robbery, aggravated burglary and contravening a family violence intervention order), it was his prior convictions for rape that resulted in him being sentenced as a serious sexual offender in respect of charges 3 and 6.[8]
51 In her reasons for sentence, the judge summarised the applicant's personal history.[9] The applicant was aged 51 at the time of sentencing. He was the subject of abuse as a child. He was educated to the age of 13 or 14. By the age of 14 he had commenced drinking alcohol.
52 The applicant's first court appearance was at age 15. As the judge put it, he was 'first institutionalised at age 15 on a charge of possessing LSD'.[10] By the age of about 15 or 16, the applicant had become a user of a number of illicit drugs. Despite his use of illicit drugs, the applicant was able to hold down a number of jobs during his working life. In approximately 1990, he formed a relationship that produced children born in 1993 and 1995.
53 On the plea hearing before the judge, it was submitted on behalf of the applicant that there were significant periods in the applicant's life during which he did not offend and that he had demonstrated a capacity to stay out of trouble. The judge rejected this submission, concluding that such gaps as there were in the applicant's offending were largely explained by corresponding periods during which he was in custody.[11]
54 The judge concluded that the applicant's criminal history 'did not bode well' for his prospects of rehabilitation.[12] The judge noted that the applicant's record demonstrated that he had failed to comply with court orders. The judge concluded that the applicant was a person who did not appear to respect court orders, 'much less ... to respect the rights of women to refuse [his] sexual advances'.[13]
55 The judge noted that on charges 3 and 6 she was required to have regard to the protection of the community from the applicant as the principal purpose for which sentence was to be imposed.[14] The judge also observed that, in order to achieve that purpose, she was permitted to impose a sentence longer than that which is proportionate to the gravity of the relevant offence considered in the light of its objective circumstances.[15] The judge noted, however, that the prosecution did not seek a disproportionate sentence. She went on to say that she took that concession into account, but also observed that she was not bound by it ― saying that she was required to apply the law and come to her own conclusions based on the evidence about what was necessary to give effect to the express purpose of the serious sexual offender provisions in the Sentencing Act.[16]
56 The judge recorded defence counsel's submission as to why she should not impose a disproportionate sentence.[17] Specifically, the judge recorded the applicant's submissions as follows:
57 The judge then dealt with defence counsel's submissions in the following terms:
The gap between your prior rape convictions and the current convictions do not reduce the need to protect the community from you. To the contrary, in my judgment, despite a lengthy period in custody you clearly continued to pose an on-going risk of re-offending in like manner, a risk that materialised almost two decades later when you raped [the complainant]. True it is that there are differences between the circumstances of your prior rape convictions and the current ones, but I do not agree that I should view a savage revenge rape following the breakdown of a personal relationship as any less heinous than a rape on a stranger. As mentioned, many of the mitigating factors that were present in the previous matter are absent here.
On the question whether I must be satisfied beyond reasonable doubt that you would pose a risk to the broader community (that is to say to persons in addition to [the complainant]), I first note that I am satisfied beyond reasonable doubt that you pose a risk to [the complainant]. The term of imprisonment imposed upon you in respect of the Williamstown incident was your motivation to exact revenge on [the complainant].
As to the broader risk to the community, you have raped a stranger, you have raped a person you claimed to have loved. The risk you pose is not confined to [the complainant].
Assessing as I do that your prospects for rehabilitation are extremely poor and that you lack regard for court orders, I consider that the principal sentencing objective of protection of the community from you on these charges is not only the statutory requirement, but also the very real imperative.[18]
58 The judge concluded her sentencing remarks by noting, among other matters, that:
59 In his proposed grounds of appeal, the applicant makes two complaints. In proposed ground 1 there is a complaint that the judge erred in finding that the applicant posed a continuing risk to the community such that a disproportionate sentence may be imposed. In proposed ground 2, the applicant makes complaint that the individual sentences, orders for cumulation, total effective sentence and non-parole period are manifestly excessive.
60 There is no substance in proposed ground 1. While the judge analysed in detail the issue of whether a disproportionate sentence could be imposed upon the applicant, at no point did she say that she intended to (or did) impose a disproportionate sentence. Accordingly, a complaint premised on the application of a disproportionate sentence cannot succeed.
61 In his submissions with respect to both proposed grounds of appeal, the applicant contended that the judge was wrong to find that he posed (or would pose on his release from custody) a continuing risk to the community. It was submitted that the applicant's original three rapes were committed many years ago and in entirely different circumstances from those committed against the complainant. Additionally, it was submitted that even if there was some continuing risk to the complainant, it was not a relevant risk to the community, or a risk from which the community required protection. The applicant contended that the judge erred in concluding to the contrary. We have already set out the judge's reasoning on this issue.[20] With respect, the judge was plainly correct in her conclusion. The contrary is not reasonably arguable.
62 We turn now to the applicant's complaints of manifest excess.
63 The applicant submitted that the sentences of 12 years for the anal rape and 10 years for the vaginal rape were manifestly excessive. There is no substance in that complaint. The sentences were imposed following a trial, on a man who had three prior convictions for rape, who had shown no remorse and who had offended while serving a suspended jail sentence. Additionally, the offending was committed in breach of an intervention order, the purpose of which was to protect the complainant. In all the circumstances, it is not reasonably arguable to say that sentences of less than half the maximum penalty for the offence of rape were wholly outside the permissible range open to the sentencing judge. The sentences were plainly well within range.
64 The real issue in this application is the cumulation of seven years of the sentence on charge 3 (the vaginal rape) on the sentence on charge 6 (the anal rape). That level of cumulation is very high for offending that occurred on the same day and in a relatively confined timeframe. That said, as the judge observed, there was a break in the offending as the second rape occurred after the applicant had left the premises following the first rape and then returned.[21]
65 The fact that the level of cumulation is high (or even very high) does not answer the question of whether it was manifestly excessive, or whether it led to a total effective sentence that was manifestly excessive. The issue remains whether the level of cumulation ordered by the judge was wholly outside the permissible range of sentencing options open to her, and then whether, by reason of the sentences and orders made, the total effective sentence or non-parole period was manifestly excessive.
66 The question of whether the seven years cumulation ordered on charge 3 was manifestly excessive is, in our view, reasonably arguable. Accordingly, there should be a grant of leave to appeal on ground 2. Having reviewed all of the circumstances to which we have already referred, however, we are not persuaded that the order for cumulation was manifestly excessive. In our view, the circumstances of the applicant's offending, the objective gravity of the offending, and the applicant's history justified the judge in sentencing the applicant to the sentences imposed.
67 Finally, we should say that we see nothing in the applicant's complaint about the non-parole period that was fixed by the judge. The applicant relied upon this Court's decision in R v Barnes[22] in support of an argument that the non-parole period was manifestly excessive. Barnes was a case involving the imposition of a disproportionate sentence. The offender was sentenced to a term of imprisonment of 10 years with a non-parole period of nine years. Callaway JA (with whom Buchanan and Eames JJA agreed) observed that a head sentence of ten years with a non-parole period of nine years was 'very unusual' and 'invite[d] scrutiny'.[23] Additionally, his Honour said that if a disproportionate sentence is imposed for the purpose of protecting the community then 'the gap between the head sentence and the non-parole period [was] likely to be greater rather than less than would otherwise be the case'.[24]
68 Barnes is not relevant in the present case. First, there is nothing about the non-parole period imposed by the judge in this case that is 'unusual' or that 'invites scrutiny'. Secondly, as we have already said, there is no basis for contending that the judge imposed a disproportionate sentence in the present case. In our view, the non-parole period fixed by the judge was within range. No lesser non-parole period was required.
69 The application for leave to appeal against conviction will be refused. The application for leave to appeal against sentence will be granted. The appeal against sentence will, however, be dismissed.
[1] See R v Bolton [1998] 1 VR 692.
[2] At the time of sentencing, the applicant had already served 191 days by way of presentence detention.
[3] [2003] VSCA 165 [32] ('Mathe').
[4] Cf s 276(1)(b) and (c) of the Criminal Procedure Act 2009.
[5] In our view, the facts and circumstances of the present case are very different from those in the very recent decision of the High Court handed down on 13 February 2019 in McKell v The Queen (2019) HCA 5.
[6] See generally R v Luhan [2009] VSCA 30 [37]; R v Momcilovic [2010] VSCA 50; (2010) 25 VR 436, 479-80 [160]-[163]; MB v The Queen [2012] VSCA 248 [25], [33], [41]; NJ v The Queen [2012] VSCA 256 [43]-[47]; Cavanagh v The Queen [2016] VSCA 305 [100]-[102]; Arico v The Queen [2018] VSCA 135; Henson (a pseudonym) v The Queen [2018] VSCA 283 [41].
[7] An application for leave to appeal was subsequently refused: see R v Bolton [1998] 1 VR 692.
[8] While the judge did not sentence the applicant as a serious sexual offender in respect of charge 2 (as she could have), making a threat to kill was a 'relevant offence' in relation to the sentencing of a serious sexual offender: see paragraph (d) of the definition of 'relevant offence' in s 6B(3), the definition of 'violent offence' in s 6B(1), clause 2(c)(iv) of Schedule 1 and s 6F(1) of the Sentencing Act 1991.
[9] DPP v Bolton [2018] VCC 385 ('Reasons') [101]-[113].
[14] See s 6D(a) of the Sentencing Act 1991.
[15] Reasons [126]. See s 6D(b) of the Sentencing Act.
[22] [2003] VSCA 156 ('Barnes').
Bolton
The Queen [2019] VSCA 21
(2010) 25 VR 436