Director of Public Prosecutions v Brown [2004] VSCA 133

5. So far as the offender himself was concerned, it was very significant that he had several prior convictions for relevant offences, namely, burglary, attempted burglary and attempted armed robbery, though, admittedly, none for sexual offences. Whilst the mitigating factors relied on by counsel for the respondent were proper to be taken into account by her Honour, as she did, and whilst her Honour accepted the submission that it could not be said that the respondent did not have some prospects of rehabilitation, I consider that the mitigating factors received more weight in her Honour's instinctive synthesis than they were entitled to.

8. Given the seriousness of the firearms offence the subject of counts 2 and 6 as is shown by the maximum custodial penalty of seven years' imprisonment and the prevalence of the unlawful and unnecessary carrying of firearms, it is reasonably arguable that the sentence of one year's imprisonment on each of counts 2 and 6 is

manifestly inadequate. However, I do not decide that point, for, in my opinion, it is clear that the rape sentences and the directions for cumulation were so manifestly inadequate as to constitute error in principle. I agree with Vincent, J.A.'s characterisation of the rape offences. As to cumulation, in my opinion, some cumulation of the sentence imposed for armed robbery (count 5) was required, as that offence constituted conduct of an entirely different kind from the other offences committed on that night and was a serious example of that serious offence, being committed at night, in the victim's home, with premeditation, against the sole adult occupant, a woman, in the presence of or in close proximity to her tearful five-year old son and in a mask and with the threat of use of the firearm if necessary. It is immaterial that little money was obtained. In my opinion, but for what is called the principle of double jeopardy, some cumulation would be appropriate also of the sentence for the firearm offence committed on the later day (count 6), as that involved quite distinct criminality.

12. I agree with the disposition of the appeal proposed by Vincent, J.A.

17. The respondent pleaded guilty in the County Court at Melbourne on 23 March 2004 to two counts of rape (counts 3 and 4), one count of aggravated burglary (count 1), one count of armed robbery (count 5) and two counts of being a prohibited person carrying a firearm (counts 2 and 6). He also pleaded guilty to two summary offences relating to the unsafe manner in which he stored this firearm and some associated ammunition in his home.

20. The respondent admitted 41 previous convictions from five Magistrates' Court appearances and two County Court appearances between 9 January 1989 and 4 December 1998. They include, 13 convictions for theft, six for burglary, one for attempted burglary, four for attempted theft and three convictions for attempted armed robbery. On one of these occasions, he was placed on a Community Based Order which he breached and was sentenced to imprisonment. On another he was

released upon entering in a recognizance to be of good behaviour for a period of 12 months. On two occasions he was sentenced to terms of imprisonment, the service of which was wholly suspended, and on three other occasions sentences requiring immediate incarceration were imposed. I have referred to these different forms of disposition as they indicate that more than once significant leniency appears to have been extended to the respondent.

24. After hearing a plea in mitigation of penalty, the learned sentencing judge, on 14 May 2004, imposed the following sentences of imprisonment upon him:

The respondent was sentenced to a term of imprisonment of one month on each of the summary counts. Her Honour directed that 12 months of the sentence imposed on each of counts 3 and 4 were to be served cumulatively upon each other and upon the sentence imposed on count 1. This created a total effective sentence of nine years' imprisonment in respect of which a non-parole period of seven years' imprisonment was fixed.

34. The Director of Public Prosecutions has appealed, pursuant to s.567A of the Crimes Act 1958, against these sentences. The single ground of appeal relied upon reads:

"The sentence imposed in respect of each count, the total effective sentence and the non-parole period are each manifestly inadequate.

PARTICULARS

In imposing the individual terms of imprisonment for each count and in making the orders with respect to cumulation and in fixing the non-parole period the learned sentencing judge - (a) failed to adequately reflect the gravity of these offences generally and in this case in particular; (b) failed to take into account or sufficiently to take into account the aspect of general deterrence; (c) failed to take into account or sufficiently to take into account the aspect of specific deterrence; (d) gave too much weight to factors going to mitigation; (e) gave insufficient weight to the premeditated nature of the offending; and (f) gave insufficient weight to the effect of the offending upon the complainant and upon her son."

39. At the time of the commission of the offences, the respondent was awaiting a committal hearing on seven charges of rape alleged to have been committed in April and September of the previous year. There had been a committal mention hearing in relation to those matters at which he presumably appeared only 10 days earlier. I will return to the significance of those proceedings. He resided at Mulgrave with his wife and daughter and his wife's son from a previous marriage. The adult victim (to whom I will refer as "T") lived in Brunswick with her two young children aged eight and five years respectively.

42. On 5 April 2003, the victim engaged a builder, Tony Tsaousis, to perform alterations, additions and improvements to the rear of her home. The front living area of the house in which she continued to reside was blocked off while this work was being undertaken.

45. On 19 April 2003, the respondent, who had experience and some training but was not a qualified carpenter, telephoned Mr Tsaousis and inquired as to the availability of work of that kind. An appointment was made for them to meet at the victim's home on Monday 21 April. Mr Tsaousis showed the respondent whom he employed as a sub-contractor around the site and indicated what had to be done. The respondent commenced to work at the house on the following day. He worked for three days (22, 23 and 24 April) but was unable to continue due to some problem concerning the necessary council permits. Nothing further was done until 11 May.

48. In order to secure the premises, the existing living area was separated from the extension by the respondent and another carpenter. This was achieved by fixing plywood floor sheeting and a thinner piece of chipboard flooring to the lounge room/dining room doorway. Another doorway at the end of a hall extending to the rear of the house was also boarded up. T then fixed black plastic on the inside of the doorways with tape, presumably to provide further insulation and reduce dust penetration.

51. Much of the external timber cladding had been removed from the rear section of the house due to the building work, leaving only the framework in some areas. Sisalation was affixed to fill the gaps. However, a gap of about 30 centimetres in width and two-and-a-half metres in height was left to permit access from the backyard to the work area. It was also possible to gain access to the extension by crawling underneath the incomplete flooring.

54. On Saturday 10 May 2003, T and her two children went to her mother's home for dinner. The children were to remain overnight with their grandmother as they had for the previous four weeks while the work was proceeding. However T's son (the younger of them) expressed the desire to stay with his mother. Accordingly after the evening meal, T and the young boy returned to the house arriving there at around 7 p.m. They spent the evening watching a football match on television and went to bed in T's bedroom at about 10.30 p.m. after the telecast had finished.

57. At about 8 p.m. on that evening, the respondent, with his wife and their daughter, attended a birthday party at a neighbour's home in Mulgrave. The respondent told the police, when later interviewed, that he drank beer and a substantial quantity of scotch whiskey during the night. He also said that he had smoked a number of "bongs" of cannabis L during the afternoon.

60. At about 2 a.m. the respondent, his wife and daughter left the party and returned home. He told the police that, after his wife and daughter went to bed, he smoked some marijuana. When he noted that they had fallen asleep, he retrieved a sawn-off semi automatic .22 rifle and a balaclava that he kept in his garage and left the premises, driving an orange-gold patterned Holden utility. He said that he had previously cut down the firearm in order to conceal it. He then drove to the home of the victim in Brunswick.

63. On arrival there, he put on his balaclava and, armed with the sawn-off rifle, entered the backyard of the house by climbing over the gateposts of an adjoining property onto the garage on T's property and then dropping down into the yard. He entered the extension by crawling under the flooring. The plywood and chipboard sheets blocking the lounge room/dining room doorway had been attached only with a couple of nails and offered the easiest point of entry. He easily ripped this material from the doorway. The resultant noise awoke T who screamed. This in turn awakened the young boy. They both lay still under the covers, clearly terrified in the pitch-dark room. She lay face down over the child to protect him as best she could.

66. The respondent entered the bedroom, walked over to the left-hand side of the bed, moved onto the bed and knelt over them. He said "I won't hurt you; just give me your cash." T responded that she did not have much money but that her bag was in the lounge room. He said, "I've been told you've got lots of cash here." She replied she did not, and implored him to go to the lounge room and take whatever was in her wallet. The respondent stepped off the bed and directed T to stand up and not to scream. She told the little boy, who was crying in fear, to stay in bed. The respondent demanded that she show him where her bag was. As I have mentioned, the room was in total darkness and both the respondent and T had to feel for each other as she followed his directions.

69. There was no blind on the lounge room window, enabling T to see the respondent for the first time. She saw a man wearing a balaclava with cut out eye and mouth holes and dressed entirely in black. He was holding a gun that she described as black and about 30 centimetres in length in his left hand. He must have presented a truly nightmarish sight. He threatened T with the gun and directed her to do as he said. She repeatedly pleaded with this intruder not to hurt her or her son and she told him that he could take whatever he wanted. The respondent directed her to take the money out of her handbag. She handed a $20 note to him and said that that was all she had. He then asked "what, is that all, $20? What about EFTPOS? Don't you have EFTPOS?" She said "No, I haven't." She offered her jewellery, her computer and "anything he wanted to take". He said that he did not want any of those things. T's son was still crying. The respondent directed her to tell the boy that everything was "OK" and she did so.

72. He then ordered her to get on her knees and she complied. She began to feel sick as she observed him unzip his fly and pull out his erect penis. He directed her to put it in her mouth. He put his hands at the back of her head and pulled it towards his penis. She pleaded with him not to do this, but to no avail. She submitted and commenced to perform fellatio as she was required. He removed his hand from the back of her head, but made her continue this activity for a couple of minutes.

75. The respondent then ordered T to get up turn around and bend over. Again T pleaded with him to stop. She felt physically ill and told the respondent that this was the case. She asked him to wear a condom. Her son was heard crying again. The respondent again directed her to tell the boy that everything was OK and for him to stay in the bedroom. Again she complied. He then pulled down her pyjama pants and underwear as she faced away from him. He bent her forwards and inserted his erect penis into her vagina. She continued to plead with him. He said "Let me play with your boobs" and reached under her pyjama top and caressed her left breast. His penis was still inside her while he did this. T persisted with her requests to him to stop and asked him not to ejaculate inside her. He removed his penis from her vagina but did not ejaculate. He zipped up his fly while she pulled up her underwear and pyjamas.

78. The respondent asked T for her telephone. She retrieved it and gave it to him. He asked her if there was another telephone in the bedroom. She said that there was no extension there. He ordered her to go back into the bedroom and to get into the bed, lie down for ten minutes and not to move. She heard him trying to open the front security door and called out to him indicating how to do it. He then left with the $20 cash that he had taken from her purse and her cordless telephone handset. T waited for a few minutes while she attempted to console her son. She then got out of bed and closed the front door. She looked out the window to see if he had left and heard, but did not see, a car. She returned to her bedroom and, using her mobile telephone, at 4.11 a.m. she reported the incident. The police arrived a short time later.

81. The respondent arrived home at around 6 a.m. and went to bed.

84. On Tuesday 13 May 2003, Sexual Crime Squad Detectives obtained from Mr Tsaousis, who was working on a site at Brighton, a list of all contractors who had performed work at the victim's home. This list included the name of the respondent, who was present at that particular work site. The detectives then spoke to him. At that stage, he denied any knowledge of the incident and provided an alibi. As they were leaving, however, he turned to them and informed them that he was at that stage awaiting a committal hearing on rape charges.

87. On Wednesday 21 May 2003, police members executed a search warrant at the respondent's home. He was arrested at this time. A number of items were seized. They included a black jacket, jeans, runners, a black balaclava, a sawn-off .22 long self-loading rifle, two attached magazines containing cartridges and two boxes of .22 long rifle calibre cartridges. He was taken to the Sexual Crime Squad office and, in a tape-recorded interview, made admissions. He stated that his reason for going to the house was to rob T so that he could pay solicitors' bills relating to his other charges. He offered no explanation as to why he raped her, save that he said it was a spur of the moment action, after he had blacked out from drink. He said that he was unable to recall anything that he had done to T or her child. He said that he stopped his attack after "coming around". He stated that he had obtained the firearm about two years earlier and cut it down to conceal it. The weapon was loaded but there was no cartridge in the chamber.

91. In support of the contention that the sentences imposed upon the respondent were manifestly inadequate in the circumstances, Mr McArdle, who appeared on behalf of the Director, argued that the offences committed by the respondent should have been regarded, and dealt with, as among the most serious examples of the type of conduct involved.

94. There was, he pointed out, a forcible entry into the victim's home at night. It involved, premeditation, planning and the use of a weapon.

97. The crimes were committed in the presence of, or close proximity to, the five year-old son of his intended victim.

100. He argued that the respondent's conduct had to be considered against his background of serious criminality, involving convictions for theft, burglary or attempts to commit those offences and attempted armed robbery. This was a case in which specific deterrence clearly assumed considerable importance, he submitted.

103. Turning to the sentencing judge's assessment of the weight given to the seriousness and significance of what had happened from the victim's perspective, he submitted that, save for a single reference in her sentencing remarks to the effect that the respondent's conduct "terrorized the victim during the period he was in her home", little recognition is evident in those remarks of the almost indescribable experience of horror to which T and her young child were subjected on that night. While it was conceded that it was necessary for the sentencing judge to give full weight to matters militating in mitigation of penalty, including the respondent's personal circumstances, he contended that there was a remarkable imbalance between the judge's treatment in her sentencing remarks of the considerations personal to the offender and the situations of the two victims. Although there was no victim impact statement before the Court, there can be little doubt, Mr McArdle argued, that an experience, of the kind to which each of the victims here was subjected, must be expected to have long-term and very serious effects on them.

106. There were, he said in summary, no mitigating features, of any kind associated with this offending.

109. Mr Holdenson, in his submissions on behalf of the respondent, unsurprisingly did not argue otherwise with respect to the seriousness of his client's conduct, but he drew attention to a number of matters which were before the learned sentencing judge at the time of the plea and which had to be and were taken into account by her in the proper exercise of her discretion. In this context, he referred to the respondent's level of co-operation with the investigating police officers. He pointed out that when they attended at his home, the respondent showed them where relevant items were located. In his record of interview, the respondent accepted responsibility for his conduct and expressed sorrow for the victim and her plight. He pleaded guilty at the first reasonable opportunity available to him. It was, Mr Holdenson submitted, plainly open to the sentencing judge to give a substantial discount for this plea. He had, counsel submitted, experienced difficulties while remanded in custody and was currently being held in a protection unit where he was likely to remain for the remainder of his period of custody. Accordingly, incarceration could be seen to be more burdensome than it would be for most other prisoners.

112. Counsel drew attention to the respondent's difficult and disadvantaged early life. His father was in prison for most of his early years. His mother was an alcoholic. He was subjected to physical and sexual abuse from his stepfather. The respondent was also sexually abused by his father and an uncle. He was placed in foster care as a consequence of these various forms of maltreatment between the ages of 11 and 13 years.

115. Although he had prior convictions for offences of violence and dishonesty, counsel pointed out that the respondent had no such convictions for any sexual offence. He had demonstrated a real capacity to obtain employment. He had undertaken counselling programs whilst in custody and showed that he was keen to take advantage of the opportunities for educational improvement available in the prison system. It cannot be said, he continued, that the respondent did not have some prospects of rehabilitation and it was appropriate for her Honour to take those prospects into account.

118. In all of the circumstances, counsel contended, the sentence imposed upon the applicant was within the range available to the sentencing judge in the proper exercise of her discretion.

121. The principles upon which this Court must approach an appeal by the Director of Public Prosecution against sentence have been the subject of consideration and application on many, many occasions. They are well known and require no elaborate restatement here. They are to be found in the judgment of Charles, J.A. in R v. Clarke.[2] It is however necessary, I think, because the nature of the role performed by this Court is not always understood, to draw attention to some significant features of that role. The primary responsibility for the determination and imposition of an appropriate sentence in a given case is reposed in the sentencing judge dealing with the matter. This Court is not entitled to substitute its own views simply because it takes a somewhat different view of the situation or even because it regards the sentence as inadequate. This Court can only interfere if there is such manifest inadequacy in the sentence that some departure from principle can be inferred, or if it is shown, that the sentencing judge has fallen into an identifiable error in a material way.

124. In the present case, Mr McArdle has not contended that the learned sentencing judge failed to have regard to any relevant sentencing principle in her consideration of the proper sentences to be imposed or when deciding what orders for cumulation should be made or that her Honour took into account some irrelevant circumstance or consideration. Rather, he submitted that, giving full weight to all matters militating in favour of mitigation of penalty, the dispositions at which her Honour arrived simply did not reflect the appalling seriousness of the respondent's conduct.

130. The respondent was given access to the home of his two victims in order to perform work for T. As a matter of practical necessity, trades persons and others providing services are, as a matter of course, afforded such access to every home and office in this country. Occupants should be able to permit that access without fear. To use information so gained, or the opportunity for access itself, for the purpose of planning and committing crimes of any kind in the premises is, accordingly, a serious aggravating circumstance. To use information in this way to terrify and rape the isolated and totally vulnerable occupant attracts a level of criminality of the highest order.

133. As I indicated much earlier in this judgment, the respondent, who was 30 years of age at the time, has a history of serious criminal offending that extends over a period of more than 14 years and he can reasonably be assumed to have had a full appreciation of the significance of his conduct. The sentencing judge understandably rejected the respondent's explanation that his intention in going to the house was to rob T and that his actions, once there, were opportunistic and undertaken at a time when he was severely influenced by alcohol. He had, of course, waited until his wife was asleep, secured a balaclava to disguise his features and a weapon with a loaded magazine to enforce his demands. So equipped, he travelled many kilometres, put on his balaclava, climbed over gateposts onto a garage roof and then dropped down into the backyard while carrying his firearm. He then broke into the premises by crawling under the floor and removing material covering a doorway. Through his actions and statements, the respondent demonstrated that he

137. Not only was the respondent not deterred by the fact that there was an obviously extremely upset little boy in the house, but there are clear indications that he used the child's presence to control T whom he had come to rape.

140. Although whether the respondent was guilty of any of the charges mentioned in the Magistrates' Court only some days earlier has yet to be determined, and no inference of guilt or possible guilt can be drawn from the fact that those charges have been laid, there can be no doubt whatever that, at least following the laying of those charges and a proceeding that was fresh in his mind, he fully appreciated the true significance of his conduct and the possible consequences of engaging in it on the occasion with which this Court is concerned. That consideration too has a bearing on the level of criminality involved.

143. Notwithstanding the presence of a number of mitigatory features related to the respondent's background and personal circumstances and the other matters earlier mentioned, in my opinion the sentences imposed upon him on the two counts of rape were manifestly below the range of those reasonably available to the sentencing judge in this case. This Court has on a number of occasions[3] stated that the premeditated nocturnal invasion with criminal intent of a person's home will always be regarded as extremely serious. Where, as here, that invasion has been effected for the achieved purpose of raping the occupant, it is, in my mind, unthinkable that the imposition of condign punishment would not follow. Additionally, I consider that an order for partial cumulation was required to reflect the criminality involved in the commission of the different and, in its own right, serious offence of armed robbery. The seriousness of that offence in the circumstances, and particularly when regard is had to the respondent's offending history, must be regarded as substantial and, in no way reduced by the fact that he

147. I would allow this appeal, set aside the sentences imposed in the Court below and in lieu thereof substitute the following sentences:

I would reimpose the sentences imposed on counts 1, 2, 5 and 6 and in respect of the summary charges. I would order that one year of the sentence imposed on count 1, one year of that imposed on count 4 and one year of that imposed on count 5 be served cumulatively upon each other and upon the sentence imposed on count 3. This would create a total effective sentence of 11 years' imprisonment in respect of which I would fix a non-parole period of nine years.

153. I wish to make clear that, were it not for the necessity to have regard to the principle of double jeopardy, I would have proposed that a longer sentence be imposed for each of the two counts of rape and that there should be a greater increase in both the total effective sentence and the non-parole period.

158. The complexity of the task which faces sentencing judges is clearly demonstrated by the very detailed, lengthy and careful reasons for sentence of the sentencing judge in this case. I have concluded, for the reasons given by Vincent. J.A., that notwithstanding the conscientious way in which she approached the task her Honour was in error in the sentence which she finally imposed, but I acknowledge the difficulties which confronted the sentencing judge in her efforts to address the multiplicity of considerations which she was obliged to evaluate.

161. Sentencing would be a very easy task if judges had to consider no sentencing principle other than denunciation of criminal conduct, and if judges were to be permitted to impose sentences without having regard to the individual history and

circumstances of the offenders on whom sentence was to be imposed[4]. The substantial and interlinking provisions of the Sentencing Act 1991, however, reflect a mature community awareness that individual sentencing is both desirable and difficult, and that the community would not be well served by a sentencing regime which placed little or no value on mitigating factors such as those the judge had to assess in this case.

165. Her Honour described the respondent's behaviour as appalling and as a terrorising and gross invasion of the safety and security of the victim in her home. Her Honour did not have the benefit of a victim impact statement, which is a serious disadvantage for a sentencing judge, but in this case significant consequences for the victim and her son could be presumed. Her Honour said that the offences were particularly serious, but, as she recognised, she had to also address the mitigating factors such as the pleas of guilty, the co-operation with investigating police, the significant disadvantages of the respondent's upbringing in a violent and abusive environment, and the fact that he would serve his sentence in protective custody. Those and other factors discussed more fully in the judgment of Vincent, J.A., had to be weighed as part of the sentencing process. It is in the community's interest that such a process of evaluation be conducted in a calm and objective way and that the sentencing judge not lose sight of the fact that it is also in the interests of the community that guilty pleas be encouraged from offenders. That is how the judge approached her task, with care and conscientiousness.

168. In my opinion, in this case the relevant prior convictions and the dreadful and calculated nature of the conduct, including the use of a disguise and of a firearm (the respondent making, it seems, a conscious decision to bring bullets with him for his gun), in addition to the fact that the offences occurred in the near presence of a young child, all meant that this had to be regarded as a case where condign punishment had to be imposed. I have concluded that the judge got the balance wrong in this case in evaluating the many relevant sentencing factors, and that this court must intervene notwithstanding the importance of restraint when an appeals court considers a Director's appeal. In this case, despite the care with which her Honour approached her task, the sentences imposed, if left to stand, would, in my respectful opinion, state a wrong principle as to the appropriate sentences for offences of this degree of seriousness, even after all mitigating factors were properly weighed and taken into account.

171. I agree with the re-sentencing proposed by Vincent, J.A.

[1] R. v. Cran (unreported, Court of Appeal, 28 March 1996), p.6; R. v. Uwland (unreported, Court of Appeal, 29 August 1996), p.6; Director of Public Prosecutions v. Buhagiar and Heathcote [1998] 4 V.R. 540 at 546; R. v. Singleton [1999] VSCA 139 at para.[9]; and Director of Public Prosecutions v. Akkari [2003] VSCA 98 at para.[18].

[2] [1996] VICSC 30; [1996] 2 V.R. 520 at 522. Approved in GAS v. The Queen [2004] HCA 22; (2004) 78 A.L.J.R 786 at [14] and [17] per Gleeson, C.J., Gummow, Kirby, Hayne and Heydon, JJ.

[3] See R. v. Cran, unreported, Supreme Court of Victoria Court of Appeal, 28 March 1996 per Brooking, J.A. at 6; R. v. Uwland, unreported, Supreme Court of Victoria Court of Appeal, 29 August 1996 per Brooking, J.A. at 6; DPP v. Buhagiar and Heathcote [1998] 4 V.R. 540 at 546 per Batt and Buchanan, JJ.A. at 5; R. v. Singleton, [1999] VSCA 139 at [9].

[4] The diversity of instances of offences which come before sentencing judges may be illustrated by contrasting this case with D.P.P. v. Sims [2004] VSCA 129. Sims was also a Director's appeal, and was heard the day after the hearing of the present case, by the same appellate judges. In Sims there were fewer counts but they included, as in this case, counts of rape and aggravated burglary. Among the many stark differences between the offenders and the conduct constituting the offences in each case, the respondent in the present case intended to terrify his victim and knew he had done so. That was an essential element in what was a carefully planned and particularly cruel attack. Contrast Sims, at [27], [29].