DPP v Dinsley [2007] VSCA 31

3 The victim of these offences, "Ms M", was a 52-year-old woman who was living in a rented room at the Gatwick Hotel in Fitzroy Street, St Kilda. Ms M was returning to her room with some shopping at around 8 a.m. In her police interview she said that just as she got to the door of her room the respondent put his arm around her, holding what looked like a pocket knife. He held her firmly around the neck and forced her into the room.

4 Once inside the room the respondent produced a set of handcuffs and put them around her wrists. He forced paper into her mouth, removed her clothing and raped her twice. The first rape involved digital penetration of the victim's anus and the second involved penile penetration of her vagina. After he raped Ms M, the respondent began to strangle her and to demand money. The victim gave the respondent her Commonwealth Bank card and he tied her up with shoelaces and demanded that she provide him with her PIN number. He left the room and eventually used the card to obtain some $20 from the complainant's bank and to buy some cigarettes.

5 After the respondent left the hotel, the victim went downstairs to the office wearing a coat, no pants and with a shoelace tied to one of her feet. She told the day manager that she had been raped and that a man had tried to strangle her.

6 The learned sentencing judge said that the respondent had subjected Ms M to a terrifying ordeal. Her victim impact statement showed that she had suffered serious psychological consequences as a result of the offences. She felt unsafe living in Victoria, was frightened of being attacked and was reluctant to go out at night. Ms M had had to leave Melbourne and had returned to Darwin where she had family support.

7 His Honour said that, apart from Mr Dinsley's early plea of guilty and his co-operation with the police, little had been raised by way of mitigation in the submissions made by counsel for the respondent. The respondent was aged 23 at the time of sentencing and had a long history of offending since he was 14. The majority of his convictions were for dishonesty and street offences, but he also had a conviction for robbery in December 2000 and he had two convictions for assault. His Honour referred to the respondent's "difficult family circumstances" during his early years and to his drug use since the age of 14.

8 The learned sentencing judge considered a pre-sentence report provided by Dr Senadipathy and said that apart from the matters referred to already, it did not bear on factors relevant to specific and general deterrence. Dr Senadipathy had said that the respondent's mental faculties were quite sound, though they were probably affected by drug use at the time of offending. Dr Senadipathy considered that the respondent would benefit from participating in a drug and alcohol rehabilitation programme.

9 The learned sentencing judge sentenced the respondent as follows:

• On count 1 (aggravated burglary): four years' imprisonment;

• On count 2 (digital rape): three years' imprisonment;

• On count 3 (vaginal rape): eight years' imprisonment;

• On count 4 (intentionally causing injury): one year's imprisonment;

• On count 5 (robbery): one year's imprisonment;

• On count 6 (assault and unlawful imprisonment): one year's imprisonment;

• On count 7 (obtaining a financial advantage dishonestly): one month's imprisonment.

10 In sentencing the respondent as a serious sexual offender under Part 2A of the Sentencing Act 1991[1], his Honour said that:

"Having regard to the various prison sentences that are appropriate to all the counts on the presentment, in the exercise of my discretion I do not believe that in order to obtain the legislation's aim of protection of the community it is necessary to impose sentences which are disproportionate to your offending, nor do I consider it appropriate in your case to order total cumulation of the sentence to be imposed."

His Honour ordered that the sentence imposed on count 6 (assault and unlawful imprisonment) should be served cumulatively on the sentence for count 3, producing a head sentence of nine years. He imposed a non-parole period of six-and-a-half years.

11 The Director of Public Prosecutions appeals against the sentence imposed on the respondent on the ground that the individual sentences, the total effective sentence and the non-parole period are each manifestly inadequate. Mr Gyorffy, who appeared for the Director, submitted that the total effective sentence had, in effect, subsumed the sentences imposed in relation to the aggravated burglary and the digital rape within the sentence imposed for the vaginal rape. By treating all of the offences as a continuous event, his Honour had failed to take account of the seriousness of the individual acts perpetrated by the offender, which were entirely gratuitous acts of violence. The written submissions made on behalf of the Director also contended that the individual sentences failed to adequately reflect the gravity of the offences, having regard to the fact that the respondent attacked the complainant in her own home, was carrying a knife at the time of the attack and pursued a continuing, relentless and vicious attack against the complainant.

12 It was also submitted for the Director that his Honour had failed to give sufficient weight to both specific and general deterrence, had failed to take account of the lasting effects of the offences on the victim and had not ordered a sufficient degree of cumulation as between the individual sentences.

13 Counsel for the respondent, Mr Thomas, submitted that his Honour had properly sentenced the respondent by reference to the overall criminality of his behaviour. The respondent's admissions to the police and his plea of guilty were deserving of a significant sentencing discount. His Honour had taken account of the comparative youth of the respondent, who was 22 at the time he committed the offences, his difficult and deprived background, his lack of premeditation in relation to the rapes and the fact that the respondent was affected by the drug "Ice" at the time that he committed the offences. Mr Thomas contended that the degree of concurrency was appropriate, given the fact that all the offences occurred as part of a single transaction.

14 There is no need to repeat the principles relating to DPP appeals against sentence, which have been clearly set out in many authorities.[2]

15 His Honour's carefully constructed sentencing remarks show that he had regard to the relevant aggravating and mitigating factors appropriate to the circumstances of the offender and the nature of his offences. In my opinion, however, the total effective sentence was so manifestly inadequate that it gives rise to the inference that an error in principle occurred. Whilst the sentences imposed for the individual counts can be accepted as being within the range for these offences, the orders for cumulation produced a total effective sentence which did not adequately reflect the gravity of the offences or the moral culpability of the offender.

16 The victim gave her statement to the police in the presence of an independent third person indicating that the police considered that she had some form of mental impairment. Before she gave her statement she was questioned as to her understanding of the difference between truth and lies. She was a very vulnerable woman in her fifties who was living alone in a residential hotel in St Kilda.

17 The offending in this case was very serious. Although the rapes may have been opportunistic rather than premeditated, the respondent's attack on the victim was violent, humiliating and degrading.[3] The victim was subjected to gratuitous acts of violence in the context of the burglary and the sexual offences which were committed against her. She was forced into her home at knife-point, she was restrained by being placed in handcuffs which the respondent had brought with him, and her hands and feet were later tied up. She had a ball of paper placed in her mouth, and the respondent later placed his hands around her throat. In her statement to the police she said that this scared her, "and it was like all the pictures I'd seen on TV and on the movies about when your eyes pop out and your head goes purple". She had to plead with the offender and say she would give him money in order to stop him strangling her. The attack was a cruel and relentless one which went on for some time and the victim is still suffering from its effects.

18 As his Honour acknowledged, the only significant mitigating factors were the respondent's early plea of guilty and his difficult family history. Although the respondent is only young, he had 99 prior convictions and two findings of guilt resulting from 24 court appearances between June 1997 and March 2005. He has previously been convicted of offences involving violence. The nature of the offences and the circumstances of the offending required considerable weight to be given to both specific and general deterrence.

19 In my opinion therefore, the learned sentencing judge erred in principle by failing to differentiate between the culpability associated with the aggravated

burglary and theft of the credit card, which involved invasion of the room which was the victim's home, the opportunistic acts of sexual violence which the respondent committed after he got into the victim's room and the other acts of violence to which the victim was subjected. Recognition of the need to cumulate the sentences imposed for these different groups of offences would have produced a higher total effective sentence.

20 In considering whether to allow the appeal and to exercise its re-sentencing discretion, the Court is required to take account of the respondent's exposure to a form of double jeopardy. As Kirby P explained in R v Hayes,[4] the principle which applies in the context of Crown appeals against sentence is not a true example of double jeopardy but is equivalent to it because

"the prisoner's liberty, pocket and reputation are put in jeopardy both before the sentencing judge and before the appellate court. In addition, the prisoner suffers the anxiety and stress caused by the situation of uncertainty arising from the delay in resolving his or her position."[5]

21 But for that principle I would have allowed the appeal and re-sentenced the respondent to a longer term of imprisonment. In the circumstances, however, I would dismiss the appeal against sentence.

24 The order of the Court is that this appeal is dismissed.

25 A certificate is granted to the respondent under the Appeal Costs Act.

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[1] See the definition of "serious sexual offender" in s 6B(2)(b).

[2] R v Clarke, [1996] VICSC 30; [1996] 2 VR 520 at 522; DPP v Josefski [2005] VSCA 265; (2005) 13 VR 85 affirming the principles in R v Clarke; see also Everett v R [1994] HCA 49; (1994) 181 CLR 295.

[3] R v O'Rourke [1997] 1 VR 246 at 252.

[4] (1987) 29 A Crim R 452.

[5] Ibid at 469 (citations omitted).