Director of Public Prosecutions v Sims [2004] VSCA 129

Director of Public Prosecutions v Sims [2004] VSCA 129 - VSCA 2004 case summary — Zoe

[8]

At about 2 a.m. the next day, Sunday 30 November, the complainant awoke to find a male person in the act of cunnilingus upon her. Her legs had been pulled off the couch and the male was kneeling on the floor between them. The room was in darkness. The complainant did not know who the person was. She grabbed his head and pulled it away. At that point he forced a kiss upon her, placing his tongue inside her mouth. (This constitutes the indecent assault.) The complainant pulled away and said "No" and turned her face away from his face. She believed he took that to mean that she wanted more oral sex. He went to do that again and she grabbed his head and pulled it away and said "No, no," a few times. She thought he might have said that he was sorry. By that time she had got up off the couch and was asking him to leave. However, while she was still on the couch, he had put his fingers deep into her vagina. She was aware that it was more than one finger, as this hurt her. She could feel that his fingers were all the way inside her, as she pulled his hand away and said that she did not want to do that. Trying to remain calm and polite for fear that the intruder might become violent, the complainant several times asked him to leave or told him to go. She walked over and opened the front door and told him to leave, but he remained seated on the couch. Eventually he came over to her at the door and, incoherently and after a few attempts, said that he would really like the chance to explain himself. She at first said that she was not interested, but in the end allowed him to do so. He told her that he had entered the complex and seen her exposing herself through the window and so had come in. He said that he was drunk and "stoned" on drugs. She then asked him to leave a few more times and he did. It was about 2.30 a.m. The complainant was very scared. She cried throughout a telephone call made to a male friend after the intruder left. The police had difficulty understanding her when she called them as she was crying hysterically.

[19]

In support of the appeal it was submitted for the appellant, correctly, that the respondent's criminal conduct constituted both an uninvited invasion of the complainant's own home and an uninvited invasion of her own body. The commission of offences of this nature in the sanctity of the victim's home constituted an aggravating factor. The submission continued that the offences the subject of counts 2, 3 and 4 were committed in circumstances where she was both alarmed and extremely frightened. The violation of her in breach of her right not to engage in any sexual activity was particularly grave. She suffered indignity, humiliation, distress and fear. Offending of the nature in question was offensive, repugnant and intolerable. The foregoing matters were, it was said, scarcely recognised in his Honour's sentencing remarks. It was submitted that in a case such as the present the sentencing principles of retribution, denunciation, general deterrence and punishment assumed a real significance and each ought to have been given much weight by the sentencing judge. Condign punishment was required. Turning from the offending to the offender, it was submitted that, although a number of matters in mitigation were relied on, this was nevertheless a case in which weight was required to be given to the sentencing principle of specific deterrence. It was then submitted that, notwithstanding the mitigating factors relied on for the respondent on the plea and accepted by the judge, when regard was had to the nature of the sentence imposed, the overall sentence and each of the four individual sentences, they could only each and all be described as manifestly inadequate. The offences (presumably excluding that the subject of count 3, considered by itself) were serious examples of offences of this nature and his Honour failed to impose sentences commensurate with the degree of criminality involved. In short, they were each and all so disproportionate to the gravity of the criminal conduct that the exercise of the sentencing discretion had miscarried to such an extent that this Court must intervene in the interests of maintaining appropriate sentencing standards for offences of this type. The fact that the respondent fell to be sentenced as a serious sexual offender on counts 3 and 4 was certainly not reflected in the individual sentence imposed on count 4 for a rape committed after the complainant had told the offender to stop[4] and in a particularly bold and gratuitous manner in callous disregard for her. Orally, Mr Holdenson, summing up the appellant's case, submitted that the wholly suspended sentence was manifestly inadequate both in its term and in its suspension. There should have been no suspension both because the aggregate period of imprisonment should have exceeded three years[5] and because his Honour could not properly have been satisfied that suspension was "desirable ... in the circumstances".[6]

[39]

I understood Mr Priest to accept the propositions quoted from the cases cited and also the applicability of the three sentencing purposes referred to a little earlier, but to contend that in this case there were exceptional circumstances. I take the submissions, already summarised, that the circumstances of this case were highly unusual and that there were several features which in combination divorced it from the ordinary to mean that. I turn to consider whether the contention is made out. Looking at the features enumerated by counsel, I am bound to say that I do not regard the fact that the offences resulted from diminished inhibition so far at least as that resulted from the ingestion of alcohol or drugs (including a drug of arousal) as in any way mitigatory. As to the brevity of the offending, that is by no means an unusual feature of rape. Nor is the frankness of an interview by any means unusual. It is not correct that the respondent left the premises when asked, but only after numerous requests. It is true that there was no force or violence, or threat of violence, other than that necessarily involved in the offending, but it is clear from the victim's statement that the digital rape hurt her. Whilst the respondent's remorse was genuine and undoubtedly great, I am not satisfied, to judge by what I have seen in my judicial experience, that it is right to call it "extraordinary". (The judge made no such finding or evaluation.) Having considered the individual features relied on I now consider them in combination, as, naturally, they must be considered. I do not regard them when so considered as amounting to circumstances that are extraordinary, highly unusual or out of the ordinary. In the context of this case, the very seriousness of the offences, involving as they did the invasion of the home and security, and the body, of the young woman victim, overwhelmed other considerations, including rehabilitation. It follows that immediate imprisonment should have been ordered. Inasmuch as the judge was satisfied (as, implicitly, he must have been) that it was desirable in the circumstances to suspend the sentence of imprisonment totally, his Honour's discretion accordingly miscarried. Further, in my view, that discretion should not have been available because an aggregate period of imprisonment exceeding three years should have been imposed for the sentence to be within the range available in the exercise of a sound discretionary judgment. A term of 18 months was manifestly inadequate for each of the two rapes, if not also for the aggravated burglary. With appropriate directions for cumulation upon the sentence on count 4 the aggregate sentence had, I consider, to exceed three years comfortably. The cases show that silence of the prosecutor on this point in no way binds this Court.

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Judgment (82 paragraphs)

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Cases Cited (1)