DPP v Daly [2004] VSCA 63

5. Mr. Tehan, who appeared for the respondent, submitted that the impugned sentence was within the range of sentences properly available to his Honour, and in support of that claim he referred to a number of cases where, he said, the sentences imposed for rape were low or moderate relative to the impugned sentence given that the circumstances of the offending in those cases were more aggravating than those here. In my view, however, this argument should be rejected. True it is that courts should strive to achieve consistency in sentencing, but the sentences imposed in the

cases to which counsel referred do not establish a relevant benchmark and they are not a useful guide for present purposes. The relevant circumstances in those cases were materially different from those that applied here. Given the circumstances of this case, I am of the firm view that the sentence imposed on the applicant plainly does not reflect the criminality of his conduct and is thus relevantly inadequate. This Court has made it plain that those who physically and otherwise abuse persons who are, for whatever reason, in a vulnerable position, such as the complainant was in the present case, should expect to be justly punished if caught. The prevalence of attacks on various "soft targets" requires that such offending be met with the imposition of a sentence that appropriately reflects the principles of general deterrence, just punishment and denunciation by the courts.[1] I agree with Bongiorno, A.J.A. that, in the circumstances, the sentence should be increased as he proposes. I consider that, but for the operation of the principle of double jeopardy, a higher sentence would have been appropriate.

10. I agree that this appeal should be allowed and the sentences proposed by Bongiorno, A.J.A. be substituted for those imposed in the Court below.

15. On 3 March 2003 Michael Boyd Daly was found guilty by a jury in the County Court of three counts of rape. He was acquitted of one count of rape and one count of theft. All of these offences related to events which occurred on 4 March 2001 and were perpetrated upon a single female victim. On 4 June 2003 Daly was sentenced to imprisonment for 18 months, three years and three years on each of the counts upon

which he was found guilty. The trial judge ordered that one year of the sentence imposed in respect of the second count should be served cumulatively upon the three years imposed in respect of the third. Thus Daly received a total effective head sentence of four years imprisonment. A non-parole period of two years was fixed by the trial judge.

19. The Director of Public Prosecutions, having formed the opinion that the sentence imposed by the trial judge was inadequate, instituted an appeal to this Court pursuant to s 567A of the Crimes Act 1958. The Director's notice of appeal specifies two grounds. The first is manifest inadequacy. The second, which really provides particulars of the first, asserts five specific sentencing errors which led to the alleged inadequacy.

22. In the early hours of Sunday 4 March 2001 the victim of each of the offences of which Daly was convicted, who I shall refer to as J, was conducting her trade as a street prostitute at the corner of Robe and Grey Streets in St Kilda when Daly approached her, riding his motorcycle. He had ridden to St Kilda from his home in Ascot Vale after having, earlier in the evening, had a minor disagreement with his then girlfriend. Daly approached J and agreed with her that she would provide "oral and sex" for $80 for half an hour. She told Daly that she always used condoms and that kissing and anal sex were not included in the services to be provided.

25. Daly asked J to come with him to his place in Brighton although, in fact, he had no such place. J declined this request and Daly agreed to take her to a beachside location near the Ormond Esplanade in Elwood. She travelled on the pillion seat of his motorcycle and they rode towards the beach. The number of Daly's motorcycle was recorded by an associate of Js, one Skeels, who was seated in a car near the intersection.

28. Although J tried to direct Daly towards her preferred beachside location he continued to ride towards Brighton and eventually parked his motorcycle in Gould Street, off the Brighton Esplanade. J and Daly then went to a clearing off a sandy track near the beach where the offences were committed.

31. Sexual activity between Daly and J commenced with J's unsuccessful attempts to place a condom on his semi-erect penis. J's insistence that he had to wear a condom was met by Daly's placing his penis in her mouth without a condom on. He pulled her hair and kicked her and demanded that she call him "master". These events formed the basis of the first count upon which Daly was convicted.

34. At the point at which the oral rape occurred Daly had not ejaculated and J suggested to him that she would return his money so that he could find another girl. He declined this invitation and demanded various changes of position during which time he made comments which J took to be a request for anal penetration. He said that she had a "nice arse" and that he wanted to "break it in and watch it bleed". He then asked her to lay down on her back following which he inserted his semi-flaccid penis into her vagina. He was still not wearing a condom. J did not consent to this activity. It formed the factual basis for the second count upon which Daly was convicted.

37. The third count upon which Daly was convicted arose from the fact of his inserting his finger into J's anus five or six times after she pleaded with him not to do it. However he was acquitted of a further count of penile/anal rape and one of theft of J's handbag which she believed he took with him when he fled the scene. Before doing so however he had ejaculated, without wearing a condom, in J's vagina and against her thigh.

40. It now appears that at the time these events were occurring another male person was in the vicinity observing Daly and J. When Daly left, that person raped J again. There is no suggestion by the Crown that this person was in any way associated with Daly. It would seem that Daly realised he was there about the same time as J did. At the time he fled the scene he knew that the other person was still in the general area. When he did flee he apparently dropped his wallet, which was later recovered and tendered in evidence against him.

43. In due course Daly was interviewed by the police. He denied any vaginal or anal intercourse with J. He denied any anal penetration whatsoever although admitted that he placed his fingers around her anal area. He admitted that he may have slapped her on the buttocks and said that he left the scene because he was concerned that the other person who was then in the vicinity might have been going to assault him. He denied taking J's handbag. In essence he maintained that any activity which occurred on that night between him and J had occurred pursuant to a commercial agreement for her to provide sexual services to him for payment.

46. On his trial Daly gave evidence largely along the lines of his police interview. He denied the offences with which he was charged and repeated his assertion that all sexual activity which occurred had been consensual and for money.

49. On the plea in mitigation which was presented on Daly's behalf a report from Mr Ian Joblin, forensic psychologist, was tendered. It detailed Daly's background and was not challenged by the Crown. It contained an extensive history which was relied upon by the trial judge in fixing the sentences he imposed.

52. Daly was born on 11 January 1971, so that he was 32 at the time he was sentenced. His early life was spent largely with his mother as his parents separated when he was about 10 years of age. He was educated to Year 11 and, as a young adult had a number of unremarkable relationships with women. Mr Joblin considered that at the time of these offences Daly was emotionally and psychologically stable. He had a job in the photographic industry that he enjoyed and he had a strong and positive relationship with a current girlfriend. Mr Joblin regarded his resort to commercial sex as a conundrum explicable only by reference to his dissatisfaction with his girlfriend's reticence in accommodating his sexual desires. Mr Joblin excluded any psycho-sexual disorder. He did not consider that the offences were representative of anger or other psychological factors of concern operating at the time they were committed.

55. The sentencing judge also had, in evidence before him, a number of written references from friends and family of the respondent including one from his then current girlfriend supportive of him. There was also, in evidence, an articulate victim impact statement written by J, Daly's victim. It graphically described the effect of these offences upon her against the background of her having taken to prostitution by reason of an expensive heroin habit. It also acknowledged that in the period between the offences occurring and the victim impact statement being prepared (just over two years) J had stopped using heroin or working on the street. She had undertaken a methadone program and was endeavouring to return to her vocation as a veterinary nurse.

58. In his sentencing remarks the trial judge outlined Daly's background and noted his family support. He acknowledged the seriousness of the crimes of which Daly had been convicted and noted that in respect of the third count of rape he fell to be sentenced as a serious sexual offender within the meaning of the Sentencing Act 1991. He acknowledged that although J had agreed to participate in certain forms of sexual activity for financial reward she was entitled to stipulate with precision the forms of sexual activity in which she was willing to participate and the conditions of such participation. His Honour was careful to emphasise that the degrading and emotionally and physically traumatic experience which J had been through was not to be discounted in any way by virtue of her activities as a prostitute or the fact that she had apparently made a splendid rehabilitation from her earlier lifestyle. He noted the sentencing considerations raised by the fact that Daly had to be sentenced as a serious sexual offender in respect of the third count of which he was convicted, although he noted that he did not consider it necessary, for the protection of the community, that a sentence disproportionate to the seriousness of the offences needed to be imposed in Daly's particular case.

61. In presenting his argument on this appeal the Director of Public Prosecutions, Mr P. Coghlan Q.C., who appeared on his own behalf with Mr C. Beal, acknowledged that Crown appeals should be brought in only rare and exceptional circumstances. He referred to R v Clarke. [2] He analysed the circumstances of Daly's offences by reference to eight specific matters all of which have already been referred to above. He acknowledged the mitigating factors present in Daly's case, namely his absence of prior convictions and his good prospects for rehabilitation but noted that there was no evidence of remorse in that he had not accepted either on his trial or subsequently, the full import of what he had done. Mr Coghlan emphasised that, as a class, prostitutes are particularly vulnerable to rape and accordingly general deterrence needs to play a significant role in sentencing. He submitted that the trial judge failed to give sufficient weight to that factor in constructing the sentences which he did. He referred to the penalty for rape (25 years imprisonment) and noted that the sentences imposed ranged between 6% and 12% of the maximum penalty available. The minimum term was, the Director pointed out, only 8% of the maximum sentence available for one count.

64. Mr Coghlan argued that there was error suggested in the trial judge's sentence by reason of the fact that although he had acknowledged that Daly had to be sentenced as a serious sexual offender in respect of the third count upon which he was convicted, he imposed only the same sentence as was imposed for the second count. Further, although there was a presumption of cumulation in relation to the third count by virtue of the serious offender provisions of the Sentencing Act the trial judge simply cumulated 12 months of the sentence on the second count on that imposed on the third count.

67. Mr P.F. Tehan Q.C., who appeared with Mr Brian Bourke, for the respondent submitted that the only question on the appeal was whether the sentences imposed by the trial judge are so manifestly inadequate as to require appellate intervention ,bearing in mind the special rules which apply to Crown appeals having regard to the decision of this Court in R v Clarke[3]. Mr Tehan submitted that the Court should approach the question of whether manifest inadequacy exists by seeing the total sentence as being one of four years imprisonment imposed for offences which occurred as one episode. He characterised the circumstances of Daly's offending as being somewhat unusual in the sense that but for his performance of anal digital penetration and the failure to comply with J's stated condition that he wear a condom the activity engaged in by him, with her, was otherwise consensual. Ultimately, as Mr Tehan submitted, the sentence was, he said, within the range of penalties fairly open to the sentencing judge and no appellable error had been shown.

70. Despite his submissions concerning the serious offender provisions to which I have already referred, I am not satisfied that the Director has made out a case of sentencing error in the application by the trial judge of those provisions. They direct a sentencing judge to particular sentencing considerations. They do not require any particular outcome in the individual case. Nor should they. Were they to do so the proper exercise of the sentencing discretion committed to a trial judge would be frustrated. In the instant case the sentencing judge clearly brought to mind the relevant considerations thrown up by the serious offender provisions and applied them appropriately having regard to his view of the offender's personal circumstances; a view which was open on the evidence before him. Accordingly, I reject the Director's argument that error is suggested by the way in which the trial judge applied the serious offender provisions.

73. Manifest inadequacy as a discrete ground for appellate intervention exists where, although a sentencing court appears to have taken all relevant matters into account, including all appropriate mitigating and aggravating features, it nevertheless imposes a sentence which seems to the Court of Appeal to be grossly disproportionate to the gravity of the offending being dealt with. The concept admits of little argument on either side. Whether, as a matter of jurisprudence, gross departure from what might, in experience, be regarded as the "norm" is itself the error in principle[4] or whether some other unidentified and unidentifiable error in sentencing is inferred from the existence of inadequacy, matters not. The demonstration of manifest inadequacy justifies appellate intervention.

76. In this case both the total effective head sentence and the non-parole period imposed by the sentencing judge fell so far below the minimum sentence which could properly be imposed for the three counts of rape committed by Daly that they exhibit manifest inadequacy. This determination leads to their having to be set aside; the sentencing discretion being thus re-opened for exercise by this Court.

79. Where a Crown appeal succeeds and, as a consequence, this Court is required to re-exercise the sentencing discretion pursuant to s 567A(4) of the Crimes Act 1958 it is required to take into account not only all of the sentencing considerations which would be applicable at first instance but also the fact that such re-sentencing puts in jeopardy in respect of the respondent "the vested interest that a man has to the freedom which is his, subject to the sentence of the primary tribunal.[5] Accordingly, this Court must take that principle into account in re-sentencing so that the new sentence imposed will be somewhat less than would have been an appropriate sentence at the trial level. Thus the concept of limited double jeopardy referred to in the rules set out in the judgment of Charles J.A. in R v Clarke[6] is respected.

82. Bearing all of these matters in mind I would re-sentence Daly as follows:-

Count 1 - rape (penile/oral) - 2 years imprisonment

Count 2 - rape (penile/vaginal) - 4 years imprisonment

Count 3 - rape (digital/anal) - 2 years imprisonment

I would order that 1 year of the sentence imposed on each of counts 1 and 3 be served cumulatively upon that imposed on count 2, thereby making a total effective sentence of 6 years imprisonment. I would order that the respondent serve a minimum of 3 ½ years of this sentence before being eligible for parole. I declare the period of 423 days as being the period of pre-sentence detention served in respect of this sentence up to 28 April 2004 and I order that this declaration and its effect be entered in the records of the Court, pursuant to s.18(4) of the Sentencing Act 1991.

[1] See, for example, R v. Deering [2000] VSCA 181 at [18] per Winneke, P.; R. v. Roy [2001] VSCA 61 at [7] per Tadgell, J.A; R v. JDP [2001] VSC 204 at [18] per Vincent, J.; R. v. Cotry [2002] VSCA 13 at [8] per Winneke, P.; R v. Legarda [2002] VSCA 179 at [18] per Vincent, J.A.; R. v. Pratt [2003] VSCA 186 at [20] per Eames, J.A.; R v. Fernando [2002] NSWCCA 28 at [62] per Spigelman, C.J.; R v. Philips; R v. Simpson [2002] NSWCCA 167 at [51] per Carruthers, A.J.; and R v. Bryant [2003] NSWCCA 34 at [10] per James, J.

[2] [1996] VICSC 30; [1996] 2 VR 520.

[3] [1996] VICSC 30; [1996] 2 VR 520.

[4] R v Griffiths [1977] HCA 44; (1977) 137 CLR 293 per Barwick CJ at 310.

[5] R v Tait and Bartley (1979) 24 ALR 473 at 476-7.