DPP v Devaldez [2003] VSCA 29

5. The respondent, who is aged 42, admitted 62 prior convictions from nine previous court appearances between June 1978 and June 1996. These convictions included four for rape with aggravating circumstances, two for rape, one for assault with intent to rape, four for indecent assault with aggravating circumstances, two for indecent assault on a female, one for indecent assault and several for burglary or like offences. On all but one appearance the respondent had been sentenced to imprisonment. In the County Court at Melbourne on 31 August 1987 his total effective sentence for very serious sexual offences and others of dishonesty was 13 years. The Court had fixed a non-parole period of 11 years. These offences were committed in the victim's own home in the night time. It appears that the respondent did not obtain parole of this sentence, but the allowance of remissions procured his release on 10 September 1995. In November 1995 he started the commission of a series of some 28 offences including an offence of indecent assault and 14 offences of stalking. He was arrested on 8 February 1996 and at the Melbourne Magistrates' Court on 27 June 1996, was sentenced to a total of four years' imprisonment. In 1982 he received a total effective sentence of eight years' imprisonment for two counts of rape, three counts of indecent assault and other offences. A non-parole period of six years was fixed. From what the Crown Prosecutor told the court below, these offences involved four different women, penile, vaginal and oral rape, and the use, on one occasion, of a knife by the respondent.

8. After hearing a plea for leniency, his Honour noted that the respondent fell to be sentenced on count 3 and the following counts as a serious sexual offender. He then sentenced the respondent to be imprisoned for 18 months' on count 2 and 13 years' imprisonment on each of the other counts, making a total effective sentence of 13 years' imprisonment. A non-parole period of 11 years' was fixed and a declaration made of 387 days pre-sentence detention.

11. The Director of Public Prosecutions later lodged notice of appeal pleading the following.

"1. The sentences of imprisonment imposed in respect of each of counts 2, 3, 4 and 5, the total effective sentence, and the non-parole period fixed, are each manifestly inadequate. Particulars of Ground 1 In fixing the individual sentences, and in fixing the total effective sentence, and in fixing the non-parole period, the learned sentencing judge erred in that he - (a) failed to adequately reflect the gravity of the 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; and (e) gave insufficient weight to the respondent's prior convictions for offences of a similar nature. 2. The learned sentencing judge erred in his applications of Sentencing Act 1991 s.6D and in particular erred by finding that the circumstances of the respondent's offending did not justify the imposition of a sentence longer than that which is proportionate to the gravity of the offences considered in the light of their objective circumstances. 3. The learned sentencing judge erred in his application of Sentencing Act 1991 s.6E and in particular erred in his finding that it was not appropriate to order any cumulation."

15. It is now necessary to set out in summary form the evidence adduced as to the offences upon which the applicant was convicted.

18. The complainant was living with two friends in an inner Melbourne suburb (at 16 Barkly Street in East Brunswick) in April 2001. She worked on Saturday 7 April 2001 in the city until 5.00 p.m. After work she met with friends at The Lounge in Swanston Street. She was there for about an hour and did not consume any alcohol.

21. After arriving home and performing domestic chores, the complainant went to bed at about 10.20 p.m. No one else was home at this time.

24. After the complainant went to sleep, she woke when someone opened her bedroom door. The door was shut again and the complainant thought one of her housemates had returned home so she got up to talk to her. The complainant was wearing a tee shirt and knickers. The complainant called out her housemate's name a few times and observed that the kitchen light had been turned off. The complainant walked into the kitchen, turned around and saw somebody standing behind her in the doorway. Half asleep, the complainant thought it was someone she knew but quickly realised it wasn't. The complainant saw that the intruder (found by the jury to be the respondent) had a knife and she screamed. The person raised the knife to shoulder height and told her to shut up. The complainant backed into the kitchen, stopped screaming and tried to calm down. The person told her to go into her housemate's room but the complainant told him that she didn't want to and asked him to put the knife down. The person continued to threaten the complainant with the knife and she felt that she had no choice but to do as she was told.

27. The knife's blade was long and serrated, and it had a black handle. Believing it was a blunt bread knife, the complainant instinctively grabbed the blade and cut the inside of her right thumb, causing her to release it.

30. Once in the housemate's bedroom, the intruder told the complainant to lay on the bed. The complainant resumed screaming and told him that she didn't want to do it. He threatened her with the knife again. Because there was nothing else that she could do, the complainant lay on the bed, which was a double mattress on the floor. The intruder removed the complainant's knickers and made her lie on the bed before he lifted her tee shirt and licked and kissed her breasts.

33. At one stage, the complainant tried to grab some karate sticks that were near the bed but the intruder told her if she tried to do anything he would kill her.

36. The intruder told the complainant to open her legs and he digitally penetrated her vagina while he masturbated himself. The intruder then had penile/vaginal sex with the complainant before withdrawing and again masturbating himself. He then placed his penis back in her vagina a second time and thrusted for a few minutes. The complainant does not know if the intruder ejaculated.

39. During the sexual activity, the intruder had placed the knife on the floor on the left-hand side of the bed. The complainant tried to grab it but the intruder retrieved it and told her that he would kill her if she tried to do anything.

42. After he withdrew his penis from the complainant's vagina, the intruder got up and told her that he was going to leave but she had to promise that she wouldn't tell anyone what had occurred.

45. The intruder left through the back door after the complainant told him how to unlock it. The complainant immediately ran to the door and locked it, checked the other doors and turned on all the lights. The complainant telephoned the police after locking herself in the bathroom with the phone. She told the Intergraph operator that she had been raped and needed help, remaining on the phone until the police arrived.

48. Later that night, the complainant was medically examined at the Royal Women's Hospital.

51. I now turn to the submissions of counsel. The Director of Public Prosecutions said he relied on a substantial written outline of submissions supplied to the Court which addressed all the grounds pleaded. However, he quickly came to declare that, "manifest inadequacy is the real complaint in this appeal". Mr Coghlan submitted that when one looked at the background of the respondent, particularly his 1982 and 1987 prior convictions and his conduct with respect to the instant offences one saw revealed a remarkable pattern of similar grave offences against women. He said that the 1987 offences were "alarmingly similar" to the instant ones. Either colloquially or in terms of the Sentencing Act, the respondent most certainly merited the description of a serious sexual offender. Counsel pointed to the complete absence of remorse in the respondent; the maximum penalty for rape, and the need for the protection of the community in the composition of any sentence.

54. Mr Holdenson, for the respondent, began his submissions by relying on his detailed outline. He proceeded to contend that the respondent's offences were committed upon the one complainant over a very short period of time, and it was open to the sentencing judge to treat them, as he did, as "part of a single transaction". Mr Holdenson went on to submit that Part 2A of the Sentencing Act applied only to counts 3, 4 and 5 and that as a consequence ss.6D and 6E of the Act applied only to those counts. He submitted that the individual sentences on all of the counts cannot be properly characterised as manifestly inadequate and that it was open to the judge, upon the evidence, to be unsatisfied that the respondent would remain a danger to the community beyond the term of imprisonment imposed.

57. Alternatively, it was open to the judge, counsel contended, in the proper exercise of his discretion, not to impose sentences on counts 3, 4 and 5 longer than that which would be justified by reason of the sentencing principle of proportionality.

60. He cited R. v. Connell[1]. That case concerned s.5A of the Sentencing Act 1991 which section requires a judge, in the sentencing exercise, to regard the protection of the community as the principal purpose for which the sentence is imposed and gives to the judge a discretion to impose a sentence longer than the sentencing principle of proportionality would allow having regard to the seriousness of the relevant offence. It was held that paragraph (b) of that section conferred:

"A discretion that should be confined to very exceptional cases. Only where the judge was satisfied by acceptable evidence that a serious sexual offender was so likely to commit further crimes of violence (including sexual offences) that he constituted a danger to the community might the judge impose a sentence longer than that which would be justified by the principal of proportionality. The judge should give reasons for so doing."

It was also held that the conditions for the exercise of the above discretion:

"Would likewise require the judge to be satisfied that the offender would remain a danger to the community beyond the period that totality would permit the offender's detention to last, and give reasons for that decision."

66. Counsel reminded the Court that the sentencing judge had found that the four offences of the respondent "were part of a single transaction" and that it was open to him to so find. Counsel referred to R. v. Carson[2]. In that case, the Court, in dismissing an appeal by the Director of Public Prosecutions against a totally suspended sentence of imprisonment for a series of sexual offences against a 12 year old boy, noted that the first two of these offences were committed consecutively but during one incident. The same applied to two other offences. The offender in that matter fell to be sentenced as a "serious sexual offender" after the imposition of two sentences of imprisonment but the Court noted:

"It is not without some significance to acknowledge that these were really not four incidents occurring at different times, but were two incidents on only two occasions. The respondent's conduct would be regarded more seriously if there had been four such incidents." (p. 7)

70. Mr Holdenson also submitted that it was open to the learned judge to decline, as he did, to direct cumulation and it should not be open to the Crown to now contend that he should have done so, the Crown Prosecutor having not submitted that cumulation was appropriate in the Court below.

73. Calling in aid his earlier submissions and other matters upon which reliance had been had on the plea, counsel submitted that this case was inappropriate for a Crown appeal. He cited R. v. Clarke[3] and contended that, in any event, this Court, in the exercise of its overriding discretion, should not intervene, R. v. Boxtel[4]. In Clarke[5] this Court stated a number of propositions relevant to appeals by the Director Public Prosecutions. Mr Holdenson specifically referred and relied on those numbered 1 to 30 particularly that numbered 5:

"An appellate court has an overriding discretion which may lead it to decline to intervene, even if it comes to the conclusion that error has been shown in the original sentencing process. In this connection, the conduct of the Crown at the original sentencing proceedings may be a matter of significance."

In Boxtel[6] the majority of this Court, again in the setting of a DPP appeal, said this:

"Finally, we consider that, even if sentencing error had been established, we ought not in the exercise of our discretion intervene so as to pass a different sentence."

79. Finally, Mr Holdenson submitted in the alternative, that if the Court were to intervene the proper application of the doctrine of double jeopardy as developed by the High Court ought to result in the imposition of a substantially lesser sentence than that which might otherwise be imposed. Reference was made again to Clarke[7] and another proposition therein, viz,

"4. When, in response to a Crown appeal, the Court decides to re-sentence an offender, it ordinarily gives recognition to the element of double jeopardy involved (in twice standing for sentence) by imposing a sentence that is somewhat less than the sentence it considers should have been imposed at first instance."

Mr Holdenson also referred to Dinsdale v. R.[8] in this connection.

87. In his reasons for sentence the learned judge, after noting the maximum penalties of ten years' imprisonment and 25 years' imprisonment for indecent assault and rape respectively, summarised the facts of the relevant offences and then proceeded to make certain findings. These were:

* the victim was extremely traumatised by her experience and continued to suffer emotionally and psychologically

* the offences were serious examples of a serious offence

* they destroyed the sanctuary of the victim's home and involved the use of a knife

* the respondent had demonstrated no remorse or contrition

* the 1987 offences of the respondent exhibited circumstances similar to his current offences

* the respondent fell to be sentenced on counts 3, 4 and 5 as a serious sexual offender.

96. Ground 1 alleges manifest inadequacy in the individual sentences, the total effective sentence and the non-parole period fixed. In the resolution of such a ground it is well established that one identifies the relevant circumstances and then looks at the face of a sentence. It then appears manifestly inadequate or it does not. Performing this exercise, I have come to conclude it is indeed manifestly inadequate and I would infer that, for some reason or reasons, the judicial discretion has miscarried.

99. Put another way, it is just not possible, in my opinion, after making full allowance for matters favourable to the respondent, to logically equate the findings made by the learned judge with the sentence imposed. Should the other members of the Court agree, it falls to us to re-sentence the respondent.

102. Before proposing such a re-sentence, I turn to the question as to whether the appellant should be allowed to press ground 3 or whether he should be shut out of doing so by reason of the inaction of the Crown Prosecutor in the Court below.

105. Mr Holdenson submitted that defence counsel below, Mr Thomas, did argue against cumulation and the Crown Prosecutor remained silent in the face of this argument. The relevant part of Mr Thomas' submissions, Mr Holdenson said, was the following.

"Your Honour, there is a question here of the serious sexual offender legislation and Your Honour likely has the authorities; I don't believe they are all that obscure I can say, sir, but Natoli is the unreported judgment I would hope to provide Your Honour and my friend. I alerted my friend to this the last time we were assembled, Your Honour, so could I just provide that to Your Honour, the unreported judgment. My submission here, Your Honour, is bound up really with what appears at p.5 of the seven page judgment. That is Appeal Justice Callaway's judgment, although I must say I thought Vincent, J - yes, he agrees with Mr Justice Callaway. At p. 5 of 7, what I am submitting to you here, Your Honour, given my client's age at 42, given the penalties, the maximum penalties in particular that apply, that the ordinary principles of sentencing would look after, effectively, any danger to the community beyond the period that the principle of proportionality -I withdraw that. If I could just withdraw that and try and make sense of it. It is my submission in considering the serious sexual offender provisions that s.6 of the Sentencing Act need not be looked to to arrive at a sentence other than a proportionate sentence, that Your Honour has ample possibilities within the usual sentencing principles which incorporates proportionality. That is my distilling really at p.5, paragraph 12, and in particular paragraph 15 of the unreported judgment there, Your Honour, and at paragraph 15, Appeal Justice Callaway looks to the question of whether or not a disproportionate sentence is available and he says: `Resort to s.6DB was not necessary and it goes without saying that provisions should not be applied unless it is necessary to do so.' That is the point that I would extract from the judgment thereto, Your Honour."

109. As Mr Thomas (in whom this Court has complete confidence) was present in this Court as junior counsel when Mr Holdenson made this submission, it must be taken that he did indeed intend to argue against cumulation. While that is a factor, the essential point is not what Mr Thomas intended to convey, but rather what his words would convey to the Crown Prosecutor.

112. In my opinion, the Crown Prosecutor would not have taken the submission to include an argument against cumulation. Rather, he would have taken it to be an argument against the imposition of a sentence other than a proportionate sentence, vide the serious sexual offender provisions of the Sentencing Act. He was urging, I believe, that the "ordinary principles of sentencing", e.g., regard to maximum penalty, cumulation, correct relationship of non-parole period to head sentence, could produce an appropriate sentence in all the circumstances. It is significant, in relation to this essential point, that Mr Thomas never argued that the offences should be regarded as one transaction. I therefore reject Mr Holdenson's submission.

115. Some other matters warrant attention at this point. Mr Holdenson submitted that the duration of the offences was "a very short period of time". In my opinion, the duration of the offences is uncertain on the evidence. Upon enquiry, this Court was told that the complainant did not state a time in her evidence, although she did say that the second penile rape lasted for "a few minutes". Mr Holdenson accepted, in argument, that the time started to run from the moment she saw the respondent with the knife in the doorway.

118. The learned judge held that the offences "were part of a single transaction". In fact finding for the re-sentencing, I respectfully disagree. Before her forced entry into the bedroom the respondent threatened the complainant with the knife. In the bedroom she screamed in her distress and was again threatened with a knife. After the commission of count 2 she tried to get some objects to defend herself, and he threatened to kill her. During the sexual activity she tried to grab the knife and was again threatened with death. In my opinion, the commission of counts 3, 4 and 5 each made a separate, and not insignificant, contribution to the respondent's overall criminality and this circumstance ought to be acknowledged by some cumulation of sentence. Each rape was a crime punishable by a maximum of 25 years' imprisonment.

121. I now turn to re-sentences on the individual counts. In what I shall propose, I have had regard to the appropriate application of the doctrine of double jeopardy as

developed by the High Court which ordinarily requires (as otherwise appears in this judgment) a re-sentencing Court of Appeal to impose a sentence that is somewhat less than the sentence it considers should have been imposed at first instance. The manifest insufficiency of the sentence imposed below on count 2 may be easily demonstrated. It appears to be the respondent's 11th conviction for indecent assault. It was a horrible offence of this kind and represented a disgusting abuse of the body of this young woman in her own home. It no doubt played its part in the severe trauma set out in her Victim Impact Statement. Taking into account matters favourable to the applicant and the maximum penalty, in my opinion a sentence of four years' imprisonment is warranted on this count.

125. Approaching the sentences for counts 3, 4 and 5 in the same fashion, in my opinion sentences of 15 years' imprisonment should be imposed on each of these counts. Keeping in mind the serious sexual offender provisions of the Sentencing Act I would propose that the whole of the sentence on count 2, the whole of the sentence on count 3 and 14 years of the sentence on count 5 be served concurrently with the sentence on count 4, thus making for a total effective sentence of 16 years. In my opinion, having regard to the number and nature of the respondent's prior convictions, his prospects of rehabilitation are poor and I would propose a non-parole period of 14 years.

135. I agree with the disposition of this application proposed by the learned Chief Justice, and for the reasons stated by him.

[2] Unrep. C of A (Vic) judgment given 6 October 1995

[4] [1994] VicRp 54; [1994] 2 VR 98 at 104

[6] [1994] VicRp 54; [1994] 2 VR 98 at 104

[8] [2000] HCA 54; (2000) 202 CLR 321