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[2008] VSCA 256
Court of Appeal (Vic)
2008-12-11
MAXWELL P, BUCHANAN and REDLICH JJA
Original judgment source is linked above.
CRIMINAL LAW - Sentencing - Rape - Adequacy of non-parole period of nine years -Crown appeal - Six separate incidents over four months - Sentencing judge sought assistance on sentencing range - Whether Crown constrained on appeal by position adopted on plea - Relevance of repeat offending - Relevance of community fear occasioned by repeat offending - Whether considerations of youth and rehabilitation relatively less significant because of gravity of offending - Appeal allowed - Non-parole period increased to 11 years.
Mr S Ward, Acting Solicitor for Public Prosecutions
1 The respondent ('Avci') pleaded guilty in the County Court to 13 charges arising out of attacks on six separate occasions, each time on a different female victim. On four of the six occasions, the victim was raped. Avci pleaded guilty to seven counts of rape, two counts of indecent assault, three counts of robbery and one count of aggravated burglary. The maximum penalties for these offences are as follows:
2 The sentencing judge imposed a total effective sentence of 16 years, and directed that Avci serve a minimum of nine years before becoming eligible for parole. The individual sentences were as set out below:
3 The Director's appeal concerns only the non-parole period, which is said to be manifestly inadequate. No complaint is made about any of the head sentences or about the total effective sentence. This is a matter to which reference will be made below.
4 The Director's notice of appeal gives what might be described as 'the usual particulars' of manifest inadequacy. It states that, in fixing the non-parole period, the sentencing judge failed to give adequate weight to those factors requiring a longer sentence (the gravity of the offending; specific deterrence; general deterrence; denunciation; protection of the community; aggravating features; multiple victims; effect on victims) and gave too much weight to mitigating factors (in this case, Avci's age and his prospects of rehabilitation).
5 As counsel for Avci pointed out, while a complaint of manifest inadequacy is a proper basis for a Director's appeal, manifest inadequacy alone is not enough to warrant appellate intervention. As was observed in DPP v Bright by Redlich JA (with whom Chernov and Vincent JJA agreed):[1]
[A]n appeal should not be brought unless the sentence reveals such "manifest inadequacy or inconsistency in sentencing standards as to constitute error in principle". An examination of authorities suggests, as was conceded by the Director in argument, that manifest inadequacy alone will not be sufficient to warrant appellate intervention. Something more is required to ensure that prosecution appeals do not unduly circumscribe the sentencing discretion of judges. The inadequacy of the sentence must be "clear and egregious", the sentence being so disproportionate to the seriousness of the crime as to shock the public conscience and "undermine public confidence in the ability of the courts to play their part in deterring the commission of crimes".
6 In order to put in proper context the issues raised on the appeal, it is necessary first to recount in some detail the circumstances of each attack. To that end, an edited version of the Crown summary presented at the plea hearing appears as Appendix 1. In accordance with accepted practice, the full summary provided the factual foundation for the sentencing in the Court below.
7 Counsel for the Director argued that the manifest inadequacy of the non-parole period was such as to constitute error of principle by the sentencing judge. Counsel pointed out that the non-parole period fixed was only 56 per cent of the total effective sentence. Unsurprisingly, the submission emphasised the gravity of the offending. Reliance was placed on what was said by the Full Court in 1994 in R v Hall[2] ('Hall'), as follows:
... [C]ommunity concern about the prevalence and seriousness of rape and like crimes has undoubtedly hardened. And the need for salutary sentences to punish offenders has undoubtedly increased. This change of attitude is reflected in the increase in the maximum sentence that from time to time has been fixed for the crime of rape. Whilst not giving way to public clamour for revenge, the courts in turn are expected to recognise clearly defined and rational community expectations by the sentences that they impose.
8 The Director argued that the course of conduct in this case represented a grave example of this kind of offending, both because there was a series of rapes and sexual assaults and because of the manner in which the offences were committed. A number of aggravating features were said to characterise each of the six sets of offences, as follows:
(a) all but one of the attacks occurred at night, or in darkness, and all in circumstances where the victim was alone, vulnerable and limited in her ability to defend herself;
(b) in each case, Avci threatened his victim that he would use a knife if she did not comply with his demands;
(c) in each case, the victim was grabbed forcibly from behind, or by the neck, and Avci threatened her with violence to ensure that she did not behave in such a way as to attract attention;
(d) the effect on each victim was profound, as revealed by the victim impact statements.
Additionally, the Director submits, each incident had its own specific aggravating features. I set out below the judge's findings on these matters.[3]
9 The Director submitted that the protection of the community[4] and the need for denunciation were sentencing considerations of particular importance. Because the offending continued over several months, increasing in seriousness on each occasion, it was such as to engender fear in the community. In the circumstances, so it was argued, Avci's youth (he turned 19 shortly before committing the first of the offences) and prospects for rehabilitation were not pre-eminent sentencing considerations, so as to lessen the relative significance of specific and general deterrence, denunciation and community protection. It was not a case where the general propositions accepted in R v Mills[5] had application.[6]
10 The Director argued that specific deterrence was of particular importance because of the persistent nature of Avci's conduct.[7] There was no material placed before the sentencing court which suggested that the principles of general or specific deterrence should be moderated in their application. As the sentencing judge said:
I do not understand why you embarked on such a cowardly, aggressive and violent campaign against decent, kind and defenceless women. No real explanation was proffered for your conduct. However, this does not reduce your moral culpability.[8]
In the Director's submission, the non-parole period imposed failed to give sufficient weight to the number of victims, the serious nature of the offending - on each occasion and overall - and the effect of the offending on each of the victims.
11 The effect on the victim, particularly in offences of this kind, is recognised as a significant sentencing consideration. The Director relies on what Vincent JA said in DPP v DJK[9] (which concerned sexual offences against a child), about the important part played by victim impact statements in achieving
what might be termed social and individual rehabilitation ... of those persons who have sustained loss and damage by reason of the commission of an offence ... [T]he imposition of a sentence often constitutes both a practical and ritual completion of a protracted painful period. It signifies the recognition by society of the nature and significance of the wrong that has been done to affected members, the assertion of its values and the public attribution of responsibility for that wrongdoing to the perpetrator. If the balancing of values and considerations represented by the sentence which, of course, must include those factors which militate in favour of mitigation of penalty, is capable of being perceived by a reasonably objective member of the community as just, the process of recovery is more likely to be assisted. If not, there will almost certainly be created a sense of injustice in the community generally that damages the respect in which our criminal justice system is held and which may never be removed. Indeed, from the victim's perspective, an apparent failure of the system to recognise the real significance of what has occurred in the life of that person as a consequence of the commission of the crime may well aggravate the situation.
Eames JA agreed that, in sentencing, the interests of the victims and the consequences to them of the criminal conduct were matters of particular importance.[10]
12 Counsel for Avci submitted that, in discharging a 'very difficult sentencing task', the judge had considered and properly weighed all relevant matters. He conceded that the offending was very serious and deserving of denunciation; it required just punishment, and weight to be given to deterrence and protection of the community. But, counsel argued, the offender was a very young man with no prior convictions, who had pleaded guilty, was remorseful and had good prospects of rehabilitation.
13 Other than expressing her view that Avci 'would benefit from a longer period of parole,' the sentencing judge did not give reasons for fixing the non-parole period at nine years. Counsel for Avci submitted, however, that her Honour should be seen to have taken the view that it would be preferable (in counsel's words)
to allow for the possibility of [Avci's] reintegration back into the community over a longer, rather than a shorter, period of conditional freedom on parole, should the Parole Board consider him fit for release at some early time during the potential parole period. Such a potential is preferable to a comparatively shorter potential parole period because it is likely to result in the respondent's continuing, in custody, to work towards release at the earliest possible time, (but not before 9 years) and, upon his release, in his having close supervision within the community for a longer period of time, thereby enhancing the twin and interrelated objectives of rehabilitation and community protection. For the community's ultimate and long term protection must come through the respondent's rehabilitation.
14 It was further submitted that, even if the non-parole period were thought to be lenient or even inadequate, it could not be regarded as a 'very clear and rare' case, or as a 'clear and egregious' case of inadequacy, such as would warrant allowing the Director's appeal.[11] Alternatively, it was submitted, the appeal should be dismissed in the exercise of the court's overriding discretion to decline to intervene. Particular reliance in this context was placed on the stance taken by the prosecution on the plea when the sentencing judge invited submissions on the appropriate sentencing range.
The request for assistance on sentencing range
15 In the course of submissions on the plea, the sentencing judge asked defence counsel whether he wished to make any submissions about 'the appropriate range'. Counsel suggested, and her Honour agreed, that the question might first be directed to the prosecutor, with the defence then having an opportunity to respond. The prosecutor submitted:
... [R]eally the Crown shouldn't ... be giving your Honour specific figures as to what we would say is appropriate because obviously that is your Honour's task in terms of the sentencing task that you must perform.
However, if your Honour requires me to give you a range, the range that I will be giving effectively is one whereby the Crown submits that your Honour would not be falling into sentencing error if it was a certain level. But that range will be rather broad and it is not to be inferred ... that is sort of the bottom line ... But I am really in your Honour's hands as to whether you want me to provide you with figures or what your Honour requires.
Of course the use of statistical information has its limitations, because no two cases are alike. However the Court of Appeal has recently said that sometimes it can be of assistance and it will be a matter for me to decide how much assistance any statistical material offers. But of course I don't want just statistics. I would appreciate that you give me helpful information about the range for this type of offence, similar offence as alleged and similar age of offender.[12]
(In R v MacNeil-Brown[13] this Court recently reaffirmed the principle, first enunciated by the Full Court in the 1980s, that the Crown has an obligation to assist a sentencing judge who seeks guidance on the sentencing range appropriate to the particular case. In MacNeil-Brown itself, the prosecutor had exhibited a similar reluctance to respond to a request from the sentencing judge for assistance on sentencing range.[14])
PROSECUTOR: [I]n terms of rape, a single rape, that the average sentence would be a minimum of six years, five years and with a maximum of seven - anything between seven and 10 years, but of course your Honour would be well aware that those depend on the circumstances of the case, and there are particularly aggravating features in relation to this matter, and in terms of a range it's submitted in respect of any minimum term ... that it would require at least double figures and then the head sentence accordingly.
...
HER HONOUR: Is it your position that you will not suggest a range for this case?
PROSECUTOR: No, I can do that, your Honour. Does your Honour require head sentence range, minimum term range? I can do both.
HER HONOUR: Head sentence range.
PROSECUTOR: Head sentence range anything between 13-17 years, your Honour.[15]
... [T]rying to be as realistic as one can be in these circumstances ... a figure in the vicinity of the maximum sentence of about 13-14 years would be appropriate ...
18 In her sentencing reasons, the judge said that both counsel had
acted with utmost integrity and honour in suggesting a proper range for the head sentence. I was very much assisted by their efforts, and I wish to acknowledge that.
Having referred to the competing submissions, her Honour continued:
In my view, both counsel have soundly identified the appropriate range. It is now a matter for me to assess the actual term to be imposed taking into account all the relevant circumstances and applying the relevant sentencing principles.[16]
19 The submission for Avci in this Court was that a non-parole period of nine years could have attracted no legitimate complaint had the judge fixed a head sentence of 13, 14 or even 15 years because, in those circumstances, a non-parole period of nine years would have been 'within orthodox bounds'. Since the total effective sentence of 16 years was within the range suggested by the prosecutor, the appeal should be dismissed in the exercise of discretion because the judge had
imposed a non-parole period that is comparatively short and which is still within the range of non-parole periods implicit in the prosecution's submission as to the range of total effective sentences ...
Counsel for the Director conceded that, if the total effective sentence had been 13 years, a non-parole period of nine years would have been unimpeachable. The judge having fixed the head sentence at 16 years, however, a non-parole period of nine years was outside the range.
20 Before I deal with the substance of this argument, it is important to make clear the manner in which the prosecutor's stance on the plea was relied on by counsel for Avci on the appeal.
Relevance of position adopted by Crown on the plea
21 Mr Croucher pointed out, quite correctly, that the approach of the prosecution at a sentencing hearing may be a factor relevant to the exercise of the discretion to dismiss a Crown appeal against sentence. At least since the advent of Crown appeals against sentence, it has become universally accepted that the Crown should play an appropriate part in the sentencing process. The conferral on the Crown of the right to appeal is seen to have as its corollary an obligation to assist the sentencing court to avoid appellable error.
22 The further corollary, relevant to the present appeal, is that the Crown may be denied appellate intervention to correct a sentencing error if the conduct of the Crown on the plea contributed to - or failed to prevent - the error.[17] In DPP v Waack[18] ('Waack'), Phillips JA (with whom Batt and Chernov JJA agreed) reviewed the authorities and summarised the applicable principles as follows:
[T]he Crown is not debarred on appeal from taking a stance different from that adopted at first instance but the appellate court, in the exercise of its discretion, is entitled to take account of the fact that at first instance the Crown acquiesced in the course that was taken by the sentencing judge, if that be the fact. Even a concession made by prosecuting counsel, if inappropriate, will not be necessarily fatal to an appeal by the Director ... The better view appears to be that on a Crown appeal against sentence it is ultimately a matter for the court's discretion what weight to accord to the position taken by the Crown at first instance, if different, and such weight will vary from case to case according to the facts. The degree of the departure must be a relevant consideration, as also the seriousness of the criminal conduct being punished and the magnitude of the sentencing error identified on the appeal - that is, the degree to which the appellate court thinks that the sentencing judge fell into error.[19]
23 In my opinion, no question of discretion arises in the present case. There has been no change of position by the Crown on the non-parole period. The prosecutor was not asked to make a submission about the available range for the minimum term. As the above extracts make clear, the judge sought - and the prosecutor made - a submission on 'head sentence range' only. In fact, the prosecutor had earlier submitted that 'in respect of any minimum term ... it would at least be double figures...', meaning that the bottom end of the range for the non-parole period was 10 years. Given that the judge imposed a head sentence near the top of the range suggested by the prosecutor, it is not a change of position for the Crown to argue on this appeal that there was error in fixing a non-parole period which was a year below the bottom end of the range suggested by the prosecutor.
24 As noted earlier, the Director has not appealed against any of the head sentence, nor against the total effective sentence. It may be that the Director felt constrained by the fact that the total effective sentence of 16 years was at the upper end of the range submitted by the prosecutor. As the decision in Waack makes clear, however, it would have been open to the Director to argue in this Court that heavier sentences should have been imposed.
25 That would, of course, have been a change of position, but the Director could have invoked discretionary considerations of the kind referred to in Waack, most relevantly 'the seriousness of the criminal conduct being punished.' After all, the gravity of Avci's offending was at the heart of the Director's attack on the non-parole period. The submission that this was 'a grave example of this kind of offending' could, with equal force, have been advanced to support a review of the head sentences and the total effective sentence.
26 In his submissions, the Director rightly emphasised the fact that Parliament has fixed a maximum penalty of 25 years' imprisonment for rape.[20] This is the highest maximum provided for by the Crimes Act.[21] The fixing of such a high maximum reflects the community's abhorrence of this crime. As noted earlier, the Full Court in 1994 expressed the view that, in the 14 years which had passed since an earlier decision in R v Vaitos[22] ('Vaitos'), community concern about 'the prevalence and seriousness of rape and like crimes' had undoubtedly hardened, and there was a greater need for salutary sentences to punish those who committed such crimes. Difficult though it is to generalise about community attitudes, I have little doubt that community concern about rape and like crimes, and the need for salutary sentences to punish and to deter, are stronger than ever.
27 This point was forcefully made in 2006 by Vincent JA (with whom Buchanan and Neave JJA agreed) in DPP v FHS:[23]
The courts, when dealing with [rape] cases, must have regard to the vindication of the community's social values, pre-eminent among which are the protection of the personal integrity and physical safety of its citizens. They must punish, justly, those whose criminal conduct causes harm to others, and, through the sentencing process, endeavour to deter potential offenders from acting in this fashion ... [W]hen [these considerations] cannot be seen to be reflected in the responses of the courts, not only ... does the individual victim justifiably feel betrayed and devalued, but the criminal justice system itself fails to achieve its objectives.[24]
28 In the present case, the periods of imprisonment imposed for the respective rape offences were as follows:[25] incident 2: 5 years, 5 years; incident 3: 7 years; incident 4: 6 years, 6 years; incident 5: 6 years, 10 years. A sentence of 5 years is only 20 per cent of the maximum. The amount of cumulation ordered was modest, given the separate criminality represented by each successive attack. In these circumstances, the Director might well have concluded - notwithstanding what the prosecutor had submitted on the plea - that the public interest required appellate scrutiny of all aspects of the sentence and not just the non-parole period.
29 By reason of his statutory functions, the Director is, with this Court, the custodian of sentencing standards in this State. Prosecutors must therefore be appropriately instructed so that they can assist sentencing judges to avoid sentencing error. If current sentencing practices need to be changed, that is the place to start.
Was the non-parole period manifestly inadequate?
30 In my opinion, the non-parole period of nine years was manifestly inadequate, and should be quashed. In re-sentencing I would substitute a non-parole period of 11 years. My reasons are as follows.
31 This was a horrific series of crimes. The terror, pain and humiliation which the victims experienced is quite appalling, the long-term damage immeasurable. The sentencing judge set out the following list of what she considered were aggravating features of Avci's conduct:
32 Her Honour also listed the following 'indignities' as aggravating features of the offences against the individual victims:
The circumstances leading up to the charged offences instilled fear as "LH" was forced to continue walking into the park at night. You threatened her with a knife. You humiliated and degraded her by ejaculating into her mouth.
The offences against "LK" involved acts of degradation and humiliation. You wiped your penis over her mouth and ejaculated into it. Just when she thought the incident was over, you forced her to return to the scene of the rape to search for your ring.
You digitally raped "LM" but at the same time required her to touch your penis. You demanded that she swallow your semen.
"EH" was trying to help you but you deceived her. When she tried to escape, you threatened to shoot her.
"SH" was nothing but friendly to you and you repaid her kindness by entering her house and robbing her. The offences were committed in the presence of her young children. She told you that she was pregnant.
33 As I have already pointed out, these matters were just as relevant to the head sentences, and to the orders for cumulation, as they were to the non-parole period, and could properly have been relied on to support a challenge to the total effective sentence.[27]
34 I draw attention to the judge's findings concerning the escalation in gravity of the conduct, and the fear which this string of attacks engendered in the local community. Hall likewise concerned a serial rapist - in that case, there were 16 victims - and what Crockett and Southwell JJ said then applies with equal force to the present case:
...[I]f ever there were a case in which condign punishment was called for then this is that case. Not only are the circumstances of each individual case horrendous but they were repeated with a chilling frequency. The result was that widespread fear existed throughout the community until the [offender] was apprehended. It is plain that but for his detection and apprehension his law breaking would have continued.[28]
In the present case, the sixth incident took place on 17 August 2005. The applicant was arrested and interviewed two days later, on 19 August 2005. Here, as in Hall, there is every reason to assume that the sequence of offending would have continued had Avci not been arrested.
35 The Full Court in Hall appeared to regard it as relevant that the repeat offending in that case had caused 'widespread fear' in the community. In the present case, the sentencing judge made a similar finding and properly treated it as an aggravating circumstance.[29]
36 On the plea, as on this appeal, it was submitted for Avci that his youth was the key factor favouring a lower sentence. In response, the prosecutor referred the judge to the decision of Kellam J in R v Hakeem[30] ('Hakeem'), where the accused had pleaded guilty to seven counts of rape. There had been three separate incidents over a three day period, involving four victims. Like Avci, the accused was 19 at the time of the offending. In sentencing, Kellam J said:
Whilst it is true that rehabilitation, in the case of youthful offenders, is in most cases the most important sentencing principle, there are cases where just punishment, general deterrence and other sentencing objectives are at least equally important. This, by reason of the seriousness of your offences and by reason of the repetitive nature of your offending, even if over a short period, is one of those cases.[31]
The prosecutor submitted that, for similar reasons, the significance of rehabilitation as a sentencing objective in the present case was 'outweighed by other considerations such as deterrence, denunciation, just punishment and protection of the community.'[32] The judge recorded this submission in her reasons but expressed no view about whether it should be accepted. (As will appear, I consider that it should have been.)[33]
37 A key feature of the prosecutor's submission - and of the reasons of Kellam J on which the submission relied - concerned the repetitive nature of the offending. In Hakeem, there were three incidents over three days. In the present case, there were six incidents in a period of four months. (The intervals between the attacks were, respectively, 11 days, 10 days, eight days, 37 days and 49 days.) Responding to an argument for Avci that the offences were out of character, the prosecutor urged the judge to consider
the circumstances of this offending in terms of its continuing over a period of time, continuing to do sexual acts to vulnerable women ...
38 As Kellam J pointed out in Hakeem, the fact of repeat or persistent offending is relevant to the protection of the community:[34]
... [T]he nature of your offences, their repetition, and the manner in which they were conducted raises the issue of the protection of the public from you as a most relevant factor.[35]
Repeat offending may reveal a 'dangerous propensity', requiring the sentencing court to pay particular attention to specific deterrence and community protection.[36] Moreover, as her Honour correctly noted, the terms of imprisonment imposed on counts 1 and 2 had the consequence that, in respect of the remaining rape and indecent assault counts, Avci fell to be sentenced as a serious sexual offender.[37] In consequence, in determining the length of the terms of imprisonment on the subsequent sexual offence counts, she was required by statute to regard the protection of the community as the principal purpose for which those sentences were imposed.[38]
39 A question arose during argument on the appeal about whether an offender's culpability could be said to increase each time conduct of this kind was repeated. At the request of the court, helpful supplementary submissions were provided by both sides addressing that question.
40 By his own admission, Avci was a person who, when his sexual drive was heightened and his girlfriend was 'relatively unavailable', would prey on an innocent woman for his own sexual gratification. On each subsequent occasion when seeking out a new victim, Avci would doubtless have been aware of the fear and distress occasioned by his previous attack(s). It seems to me to be reasonably arguable that such awareness made the next attack more blameworthy than the last. As counsel for the Director argued in his supplementary submission, there was nothing in the psychiatric report tendered, or in the circumstances of the successive attacks, which would have prevented Avci from understanding the effect on his victims of what he had done to them.
41 Nor can there be much doubt that he would have appreciated, from the beginning, that what he was doing to his successive victims was unlawful. In this sense, I think, the repetition of the conduct could be regarded as evidencing 'a continuing attitude of disobedience of the law.'[39] Contrary to the respondent's submission, I would not regard the absence of prior convictions as necessarily precluding that characterisation.
42 In the end, however, it is unnecessary to formulate any new principle of culpability in order to resolve this appeal.[40] It was both necessary and sufficient for the judge to take account of the increasing seriousness of the attacks in determining the individual sentences, and to take account of the separate criminality constituted by each separate attack in making orders for cumulation. As I have said, the question whether the individual sentences, or the orders for cumulation, were adequate does not arise on this appeal.
43 What the course of conduct did starkly reveal was a persistent attitude on Avci's part that he was entitled to disregard entirely the rights of any woman he might select for his purposes. Moreover, these were not spontaneous incidents. As the judge found, there was an element of planning involved. Finally, the fact that the severity of the attacks increased over time only underlines the dangerous propensity which they revealed. For all these reasons, conventional considerations of denunciation, specific deterrence and community protection were of particular importance in this case, as the Director submitted.
44 As to general deterrence, I have already referred to the importance of courts continuing to send the clearest possible message to the community that preying on innocent females, whether in their homes or on the streets, will be treated as offending of the utmost seriousness.
45 According to the report of Dr Lester Walton, consultant psychiatrist, tendered by the defence on the plea:
Mr Avci stated that it was in the aftermath of taking amphetamine when the hyperactivity was wearing off that he experienced an elevated sexual drive. He would approach women whom he seems to have regarded as potential sexual partners, routinely he being rebuffed by them and that would prompt him to behave aggressively and force them into a range of sexual activities.
Typically Mr Avci's girlfriend would be relatively unavailable to him at the material times.
46 This explanation by Avci might well have founded an argument for the prosecution that his continued taking of amphetamine, at least after the first attack, was an aggravating feature of the subsequent offending. That is, it could be inferred from what Avci told Dr Walton that he continued to take amphetamine in the knowledge that, when its effect was wearing off, he would experience 'an elevated sexual drive' which, if his girlfriend were 'unavailable to him', would cause him to seek out and attack another victim. There is an obvious parallel here with 'reckless intoxication' and with drug-induced psychosis where the drug-taker has foreknowledge of the probable consequences of the drug-taking.[41]
47 For unexplained reasons, no such point was taken by the prosecutor on the plea. In the circumstances, the Crown quite properly eschewed the point on the appeal.
48 As to remorse, the judge set out the following extract from a letter of apology written by Avci to his victims. The letter was read aloud in court:
To all whom I have caused harm,
I write this letter to express my deepest sympathy to what I have caused to your lives. To say "sorry" is simply not enough to heal the heartache and pain I have caused to your lives and families lives ... I completely understand all the anger, frustration and revenge you all feel towards me ...
As I have said before there is no good excuse for what I have caused upon you all. I will say I'm sorry and remorseful for my actions, but I don't believe it is enough ... "I'm so sorry"!
49 Her Honour noted that Avci had undertaken a number of courses aimed at reducing re-offending. She also referred to Dr Walton's report which said:
Mr Avci is well aware that a protracted custodial sentence awaits him. That will provide the opportunity for participation in a sex offenders' education and rehabilitation program and there would seem to be no reason why Mr Avci might not make good use of that involvement.
50 Inevitably, however, the efficacy of these programs in Avci's case is uncertain, as his counsel acknowledged on the plea:
HER HONOUR: Well, the problem is the conduct is wholly unexplained but for a connection alleged to amphetamine abuse. That would seriously call into question, wouldn't it, the risk he poses and the need to protect the community unexplained on your own case?
DEFENCE COUNSEL: Yes. Your Honour, what Your Honour says is very difficult to counter save as to this that he is having treatment in prison; those three documents I tendered indicate he is being treated and one does not know what the future holds.
51 As noted earlier, her Honour's only stated reason for fixing the non-parole period of nine years was that Avci 'would benefit from a longer period of parole'. On appeal, his counsel has argued that this statement reflected the legitimate view that a long period of conditional freedom on parole was conducive to Avci's rehabilitation and, hence, to the protection of the community. The sentencing judge concluded that Avci had good prospects of rehabilitation
because of your acceptance of responsibility for your actions, your return to religion, your true remorse and the efforts you have made at self-improvement whilst on remand.[42]
52 In the case of a youthful offender, rehabilitation is usually far more important than general deterrence.[43] In my view, however, the gravity of the offending in this case was such that the sentencing court had no alternative but to view considerations of youth and rehabilitation as subjugated to other considerations. Youth and rehabilitation must
take a "back seat" to specific and general deterrence where crimes of wanton and unprovoked viciousness ... are involved ... This is because the offending is of such a nature and so prevalent that general deterrence, specific deterrence and denunciation of the conduct must be emphasised.[44]
the prisoner's punishment is mitigated in favour of his conditional freedom, when appropriate, but only after the prisoner has served the minimum term that justice requires having regard to the circumstances of the case.[45]
Although the factors that weigh heavily in fixing a head sentence will generally be weighted differently in the context of a non-parole period, the latter has an important punitive aspect.[46]
54 The quashing of the non-parole period means that the sentencing discretion is reopened. There having been no challenge to the head sentences or the total effective
sentence, they should be reimposed. Making allowance for double jeopardy, I would direct that a minimum term of 11 years be served before Avci is eligible for release on parole.
56 I agree with the disposition of the appeal in the manner proposed by the President for the reasons he has given.
The victim was walking alone when Avci ran up to her and put his arms around her from behind. He said, "Relax or I'll stab you. I just want to suck your tits." He started rubbing the victim's breasts with both his hands, over the top of her clothing. He then moved his hand down in between the victim's hips and thighs. He put his left hand on the victim's left breast slightly inside her clothes. He started rubbing the victim's breast and pulled her top aside and then sucked on her left breast and nipple. He then licked her breast (Count 1). Whilst Avci was doing this he had his right hand covering the victim's mouth. He then pulled the victim in towards his body and said, "Do you want to give me a blow job?" The victim said, "No." He walked around behind the victim and simulated sexual intercourse from behind.
Three people on pushbikes came long and disturbed Avci and he ran off.
The victim was walking alone, with her dogs. It was dark but there was street lighting. Avci walked past the victim, then grabbed her from behind. He put his left arm around the victim's neck and shoved her towards the brick fence. He then said, "Don't say anything, I just want to feel you, I'm not going to hurt you, don't make me use my knife." When Avci said, "I just want to feel you" the victim felt his right hand go under her shirt and bra and he played with her left nipple.
Avci rubbed his penis against the victim's right hip, simulating sexual intercourse. He also rubbed the victim's breast area and licked her left nipple. He then put his right hand down the front of the victim's pants and then inserted two fingers inside the victim's vagina and moved his fingers in a circular motion inside her vagina. At this point the prisoner was rough and the victim told him "No, this is too painful." The prisoner then withdrew his fingers (Count 2).
He then said, "Will you go down on me?" The victim replied, "No, I don't want to do that." Avci said, "We're going to take a walk to the park OK." He repeated this a few times as well as telling the victim to "relax." He then pushed the victim forward from behind her. As he was doing this, he said, "We're going for a walk, I just want to talk, will you be with me and sit in the park?" The victim said, "No, I just want to go." The prisoner then said something like, "Just don't get me to use my knife ok, just relax, relax."
As the prisoner forced the victim to walk towards the park she saw a couple of people walking in front of the park on the opposite side of the street. At this stage the prisoner covered the victim's mouth and said, "Don't you dare scream." The prisoner made the victim walk across the road, with his hand around her neck and mouth. The prisoner then made the victim sit on a bench, facing the children's play area. He sat on the victim's right side and at this stage took his erect penis out of his dark coloured tracksuit pants. He then said to the victim "Will you go down on me, I just want you to go down on me." He repeated this a few times, to which she replied, "No."
The prisoner then pulled the victim's face towards his erect penis with his hand and forced her to perform oral sex on him. He stated, "You're pretty good at this" and then he said, "Would you mind if I came in your mouth." She said "No", he then ejaculated in the victim's mouth. The prisoner then withdraw his penis from her mouth and she said, "Are you done, is it over?" (Count 3). He grabbed the victim by her neck again with his left hand and walked her through the park towards the street. As the prisoner escorted the victim out of the park the victim could hear voices of people in a house. The prisoner immediately tightened his grip around her neck and told her again, "Don't you dare scream." The prisoner then told the victim to go into the street and she walked "very quickly away."
Counts 4 (Oral rape - representative) and 5 (Indecent assault)
The victim was walking home alone when she was grabbed on the nose and mouth from behind by Avci. He said that he would let her breathe and took his hand off her nose but kept it over her mouth. He then said, "Don't scream, I have a knife in my pocket." Avci then told the victim that they were going to walk over to the trees (which are located in a nearby Reserve). At this time Avci was standing behind the victim with his right hand over her face. He had his left hand down her shirt and was fondling her right breast. The victim started struggling and Avci said, "Don't touch me, I've got a knife." He then said, "I just want to touch and suck your breasts." He still had his left hand down the victim's top and was trying to get his head in underneath her top from the left side.
Avci then started pushing the victim from behind towards the Reserve. Whilst they were walking he said, "I'm not going to rape you, I just want to touch you and I want you to suck me off." The victim replied, "That would be a rape." As they were walking he unbuttoned the black jacket that she was wearing and started grabbing her bottom and tried to masturbate her from outside her pants. Avci demanded the victim to suck him off which she refused. He then threatened her by saying, "You're going to suck me off or I'll stab you." Avci then walked around in front of the victim and took his penis out of his pants and told her to open her mouth. At this time the victim was sitting down and he was standing over her with an erect penis. He put his penis into her mouth and pushed it deep into her throat (Count 4R). The victim started coughing and he said, "Don't cough." Avci then sat down beside the victim on her left and made her keep sucking his penis (Count 4R). The victim twisted around and Avci had his hand on her head and guided her head toward his penis. The prisoner forced her head up and down on his erect penis. Some people walked past in the laneway and he told her not to make a noise and if she did he would harm her.
A short time later Avci asked the victim to move around and kneel in front of him. He was still forcing the victim to suck his penis (Count 4R). The prisoner took his penis out of her mouth and wiped it over her face and lips. He then told the victim that she could stop and that he wanted to suck on her breast. He pulled the victim's top up just above her breasts and started groping her breasts and sucking them (concentrating mostly on the right one) (Count 5). The victim started to shiver and told the prisoner that she was cold and he stopped playing with her breasts and pulled her top back down.
The prisoner then forced the victim to suck on his penis again (Count 4R) and asked her if she "wanted a tit fuck." The victim said, "No." A couple of minutes later the prisoner again lifted the victim's top up and grabbed hold of her shoulders and pulled her down towards his penis. He then made the victim push her breasts together and with his penis in between and he moved back and forward.
The prisoner then made the victim suck on his penis again (Count 4R). He kept his hand on her head again and gave the victim instructions to go deeper. He kept pushing her and making her go faster. He asked the victim if she was "going to swallow?" she said, "No." He then told the victim that he was going to blow in her mouth and asked her if she wanted him to blow in her mouth. She said, "No." He asked again and she said, "No." He said, "Do you want me to blow in your face?" she said "mouth." The prisoner then ejaculated in the victim's mouth (Count 4R). When he had finished he told the victim that she could spit his ejaculation out. The victim turned her head to the right and spat onto the ground and in doing so also spat across her backpack.
The prisoner stood up and told the victim to pick up her things. He reached into the pockets of the victim's jacket and told her that he wasn't going to rob her, but he had dropped something and he was looking for it. He then made the victim walk back to the tree where he had raped her and made her look around on the ground. The victim asked what she was looking for and the prisoner said that it was a "ring." He then accused her of stealing it and checked her pockets again. He then took the victim's mobile telephone and used the light from the screen to look on the ground. After about five minutes he told her to go back to the end of the lane. The victim then walked away and made her way home.
Counts 6 (Digital rape), 7 (Oral rape), 8 (Robbery)
The victim was walking home alone from the supermarket. She turned and noticed Avci walking behind her. He then grabbed her on the face from behind and held her so she could not move. He forcibly closed her mouth with his hand and twisted her neck. Avci said, "Don't scream." The victim screamed. He then dragged her towards houses twisting her neck harder, causing her excruciating pain and fear that her neck would be broken. Avci then verbally threatened the victim, saying, "I have a knife. Be quiet if you don't want me to use the knife. I'll use the knife if you scream." The victim stopped screaming.
The victim said, "Money, wallet. I have money. I'll give you everything, just let me go." The prisoner said, "Put it back in the wallet and put the wallet in the bag. I don't want money. I want you. I want to touch you and spend time with you." He then told the victim to walk and he walked behind her still holding her and he continually said that he had a knife. Avci then said, "If you be quiet and do what I ask you to do, I will let you go." Avci told her to talk to the playground. He told her to sit down and she sat down on a wooden platform. He then said something like, "I want to touch your breasts." The prisoner touched the victim's breasts and nipples, by moving his right hand under her sweater and into her bra. He put his hand into the top left side of her bra and touched her nipple. He touched it quite firmly and twisted it. He then lifted up the victim's jumper and pulled the victim's bra down a little. He sucked her nipples, mainly concentrating on her left breast.
Avci then said, "Open your jeans, yourself." The victim undid the button and zip of her jeans. He then penetrated the victim's vagina with two fingers from his right hand (Count 6). Avci then opened his pants zip. He was standing up on the victim's right side. He then grabbed the victim's right hand with one of his hands and put it on his penis. He then moved her hand up and down on his penis. When the prisoner initially placed the victim's hand on his penis it was aroused but then it became fully erect.
The prisoner then said, "Suck it." When Avci said this he was standing in front of the victim who was still sitting. He pulled the victim's sweater up and her bra down. He then grabbed her breasts with both hands and pulled her breasts together. He then put his penis between the victim's breasts. He then said, "Put it in your mouth" and he put his penis into the victim's mouth. He said, "Suck it, suck it, you're a b." The prisoner then ejaculated in the victim's mouth. The victim then spat the ejaculate onto the ground and upon seeing this, he demanded that she swallow it (Count 7).
The prisoner then walked the victim to a main street where he released her. He told her to go quietly and not look back. He also told her to give him her money. She gave him $150. (Count 8) She went straight home and requested the security officer to contact the police.
Counts 9 (Oral rape), 10 (Penile rape), 11 (Robbery)
The victim was about to drive off in her car when Avci signalled to her. He asked her if she would ring a friend he said he was due to meet. After she did so, Avci took a step towards her car and opened the car door with his right hand. He then grabbed her mouth and the back of her neck with his hand. He then put his right hand over the victim's mouth and his left hand behind her neck. He kept saying "Shut up, be quiet." Avci half sat on top of the victim and half sat on the driver's seat. He then wrapped his left arm around the victim's neck, and pulled the door shut with his right hand. He reached over with his right hand and put the victim's car into park, whilst saying "turn your car off and park it." The prisoner had his right hand back over the victim's mouth.
Avci kept asking the victim to "be quiet." He put his right hand down the victim's top. At this stage she tried to push him away. He said, "I'm not going to rape you, I'm just going to touch your tits." He then put his hands down the victim's top again and felt her breast. The prisoner then directed the victim to move into the front passenger seat, which she did. He then pulled the victim's upper body towards him and put his right hand down her top and touched her breasts again.
Avci then said, "I'm not going to rape you, I just want to suck on your tits." He then grabbed the victim's left breast with his hand and put his face down to it and kissed and sucked her breast around the nipple area. The victim struggled and Avci then put his right hand over her mouth again. He then said, "Shut up or I'll stab you, I've got a knife." He then undid his pants and pulled down on the victim's neck with his left hand, pulling her head towards his penis. He said, "Suck my cock" and he exposed his penis. He then pulled the victim's head down and pushed her head onto his penis, inserting it into her mouth. He pushed her head up and down about three times (Count 9). Avci then pushed the victim back into the passenger seat and sucked on her left breast again. He placed his left hand over her shoulder and placed his right hand between her legs on her vagina on the outside of her clothing.
The victim then unlocked the door and attempted to escape out of her car. The prisoner then grabbed her by her jacket and pulled her back into the car, he said, "You bitch. Don't try that on me again, or I'll shoot you." He then said, "Close the door", as he put his hand over her mouth again. The victim then closed the door.
The prisoner then put his right hand down her top again and told her to take her pants off. He reached down with his right hand and attempted to unbutton her pants. He was unable to and said, "you do it." The victim then undid her pants and pulled them down to her knees. He then told the victim to turn over and then said "lift your arse up in the air." He lay on top of the victim and partially penetrated her vagina with his penis (Count 10R) He then withdrew his penis and tried to penetrate her vagina again. He used his right hand to insert his penis into the victim's vagina. As he did this he said, "Have you got your period?" She said "Yes." Avci said "Take out your tampon" and then he attempted to remove her tampon. Avci then put his penis back inside the victim's vagina (Count 10R) and used his right hand to grab the victim's breasts. He said, "Oh yeah, your tits." After a few seconds he masturbated until he ejaculated on the victim's buttocks area.
The prisoner asked the victim where her mobile phone was and asked if she had any money. The victim replied, "I think my phone dropped out of the car." A vehicle then drove past and the prisoner grabbed the victim's mouth again and said, "Don't say a word", and "Shut up." The prisoner demanded the victim's phone. She stated that she thought she dropped it outside. He asked, "How much money do you have?" She said, "I think that I have 50 dollars, but I can't find my wallet." She then handed the prisoner the cash from her purse in $5 and $10 denominations (Count 11). The prisoner then got out of the car and told the victim not to look and he ran off.
Counts 12 (Aggravated burglary) and 13 (Robbery)
The victim was on the front porch of her home, reading, when Avci walked past and said "hello" to her. She said "hello" and then went inside her home without shutting the door to tend to her two young children who were then aged 3 and 4 years old.
A short time later she was in the hallway of her home when she was grabbed from behind by Avci (Count 12). He placed his arms around her body and held her tightly with her back against the front of her body. He said, "I don't want to hurt you, I have a knife in my pocket, I want money for drugs." He said that he wanted to go upstairs and that he wanted jewellery. He continued insisting that they go upstairs. She told Avci that her purse was in the kitchen and gestured with one of her hands towards the kitchen. Avci told the victim that he didn't want to go into the kitchen because she might call the police.
She was then forced by Avci into the kitchen area where she handed him her wallet containing a $20 note and numerous credit cards. Avci removed the cash and the victim offered him her car keys, but he declined. She then handed the prisoner a mobile flip phone. She was hysterical by this stage. Avci then forced the victim to the bottom of the stairs. At this stage she revealed to him that she was pregnant. Her 3 year old daughter was also near the bottom of the stairs and the victim picked her daughter up. The prisoner then pushed the victim up the stairs to the master bedroom. Once inside the bedroom the victim showed the prisoner some of her jewellery but he did not seem interested in it and did not take any of it. The victim's children were present and crying and the prisoner told her to get rid of the kids. The presence of the victim's children appeared to infuriate Avci and he demanded that she get rid of the children and then walked down the stairs and left.
[1] [2006] VSCA 147; (2006) 163 A Crim R 538, 542 [10] (emphasis added; footnotes omitted).
[2] (1994) 76 A Crim R 454, 475 (Crockett and Southwell JJ).
[5] [1998] 4 VR 235, 242 (Batt JA): 'In the case of a youthful offender rehabilitation is usually far more important than general deterrence.'
[9] DPP v DJK [2003] VSCA 109, [18].
[11] _DPP v Johnston_e [2004] VSCA 150; (2004) 10 VR 85, 96 [28] (Ormiston, Batt and Chernov JJA) adopted by Redlich JA in DPP v Bright [2006] VSCA 147; (2006) 163 A Crim R 538, 542 [10].
[16] R v Avci [2007] VCC, [76]-[79].
[17] R v Tait and Bartley (1979) 24 ALR 473, 476-7 (Full Court); followed by Full Court in R v Casey and Wells (1986) 20 A Crim R 191. See MacNeil-Brown [2008] VSCA 190, [15]-[22].
[18] [2001] VSCA 108; (2001) 3 VR 194, 207.
[20] As to the significance for sentencing purposes of the maximum penalty, see R v AB (No 2) [2008] VSCA 39.
[21] The same maximum is provided for armed robbery, aggravated burglary and trafficking in a commercial quantity of a drug of dependence.
[27] The Sentencing Advisory Council's June 2007 Sentencing Snapshot (No 26), Sentencing trends for rape in the higher courts of Victoria 2001-02 to 2005-06, reports that in one case in 2004-05, a man aged 40 years was sentenced to 20 years for each of seven counts of rape. He was given a total effective sentence of 26 years with a twenty-year non-parole period. In R v Hakeem [2007] VSC 5, discussed below, the total effective sentence was 24 years with a non-parole period of 17 years.
[28] R v Hall (1994) 76 A Crim R 454, 474 (emphasis added).
[35] [2007] VSC 5, [40].
[36] Cf Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465, 477 (Mason CJ, Brennan, Dawson and Toohey JJ).
[37] 'Serious sexual offender' means an offender (other than a young offender) who has been convicted of two or more sexual offences for each of which he has been sentenced to a term of imprisonment: Sentencing Act 1991 s 6B.
[39] Cf Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465, 477; R v O'Brien and Gloster [1997] 2 VR 714, 718 (Charles JA).
[40] Cf R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566, 573-4 [21]-[26] (Spigelman CJ).
[41] DPP v Smeaton [2007] VSCA 256, [14] (Nettle JA); R v Martin [2007] VSCA 291, [21]-[30] (Maxwell P, Nettle and Redlich JJA).
[43] R v Mills [1998] 4 VR 235, 241 (Batt JA).
[44] DPP v Lawrence [2004] VSCA 154, [22] (Batt JA); see also DPP v McCloy [2006] VSCA 99, [56]-[63] (Ashley JA, with whom Warren CJ and Buchanan JA agreed).
[45] R v Tran and Tran [2006] VSCA 222, [28] (Redlich JA, with whom Warren CJ and Nettle JA agreed) (emphasis added); Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525, 536-8 Dawson, Toohey and Gaudron JJ).
[46] R v Detenamo [2007] VSCA 160, [27] (Redlich JA, with whom Warren CJ and Maxwell P agreed).
DPP
Avci [2008] VSCA 256
(2004) 10 VR 85
(1979) 24 ALR 473
(2001) 3 VR 194
(1988) 164 CLR 465
(2006) 66 NSWLR 566
(1990) 169 CLR 525