DPP v Grieves [2003] VSCA 10

5. The respondent admitted 21 previous convictions from one court appearance in the County Court in November 1988. These offences involved sexual penetration of, and indecent assault upon, a boy of some four-and-a-half years over a period of some 13 months. Some of these offences were dealt with by the imposition of sentences of imprisonment, making up a total effective sentence of 12 months of which six months was suspended for a period of 12 months. For other offences he was released upon entering into a bond of $500 to be of good behaviour for four years. The respondent kept that bond.

8. In the instant case, after hearing a plea for leniency which included sworn evidence from a Dr Ball, a psychologist, and the reception by his Honour of some documents and a victim impact statement, the learned judge sentenced the respondent (who fell to be sentenced as a serious sexual offender) to two years' imprisonment on count 1 and one year's imprisonment on count 2. These sentences were not made cumulative and were both totally suspended for a period of three years.

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

"1. The sentence imposed in respect of each count was manifestly inadequate. 2. In fixing a term of imprisonment of two years in respect of count 1 and in fixing a term of imprisonment of one year in respect of count 2 and imposing a total effective sentence of two years' imprisonment and in ordering the whole of such term to be suspended for a period of three years, the sentencing judge - (a) failed to adequately reflect the gravity of the offence generally and this case in particular; (b) erred in concluding that there were exceptional, extraordinary or unusual circumstances of this case which warranted the imposition of a wholly suspended sentence; (c) failed to take into account or sufficiently take into account the prior convictions of the respondent; (d) failed to take into account or sufficiently take into account the fact that the respondent was a serious sexual offender; (e) treated the consumption of alcohol by the respondent as a substantial matter in mitigation; (f) failed to take into account or sufficiently take into account the aspect of general deterrence; (g) gave too much weight to factors going to mitigation."

15. It is now necessary to set out in summary form the facts of this matter.

18. The complainant attended the respondent's house for a barbecue on the evening of 5 February 2002. They had previously worked together at a store from which the complainant had just tendered his resignation. He intended going to Queensland. He had a girlfriend. The respondent had been married for some 27 years and had two children.

21. During the course of the evening the complainant and the respondent consumed a large amount of alcohol. In the early hours of the following day, when all the guests had left and the respondent's wife had gone to bed, the complainant had gone to sleep, affected by the alcohol he had consumed, on a chair on the front verandah. The respondent went to the front porch, picked the complainant up and carried him inside to a bed settee. The respondent then removed the complainant's cargo-pants, took his penis from his boxer shorts and performed oral sex on him (count 1). The complainant woke up befuddled, but told the respondent to stop. The respondent did so, but then kissed the complainant on the neck and then on the mouth, placing his tongue inside the complainant's mouth (count 2). The complainant got up and pulled his pants up. He was hysterical. He ran out of the house, partially clad and without shoes, screaming as he did so. He got into his car and drove off, but collided with a tree shortly afterwards. The car became a "write-off". At the scene of the accident, the complainant called for help and stated he had been raped. An ambulance was summoned and the complainant's mother arrived. He was hysterical and did not want anyone near him. He was taken to the Frankston police station and later to the Monash Medical Centre.

24. On 7 February the respondent told a fellow employee that he had "really hit on" the complainant and that had frightened the hell out of him. He said he was a homosexual. Later that day the respondent told his firm's general manager that he had made sexual advances to the complainant and tendered his resignation. On 8 February he went to the Cranbourne police station and made a taped record of interview. He made full admissions of the offences and stated that he was "deeply sorry".

27. I now turn to the submissions of counsel in these proceedings. As I remarked before oral argument commenced, in this matter the members of the Court have been furnished with very full and detailed written outlines of argument on behalf of the appellant and the respondent. If I may say so, they reflect favourably on the industry of all counsel involved. In those circumstances I propose to now embark on a summary of their contents and I will supplement that with a further summary of the economical oral submissions which were delivered.

30. The learned Director began his submissions by pointing out that as the respondent had to be sentenced as a serious sexual offender the sentencing judge had to have regard to the provisions of s.6D of the Sentencing Act 1991 which included a judicial obligation, when determining the length of sentence, to "... regard the protection of the community from the offender as the principal purpose for which the sentence is imposed ...". He argued that on the material before this Court it could not be concluded that his Honour had given proper regard to that obligation. He also submitted that the learned judge did not turn his mind to whether the sentence of more than three years was appropriate. Rather, he seemed to approach the matter on the basis that the only competing considerations were whether the sentence should be suspended or not. In all the circumstances, he contended, a sentence of three years was not within range.

33. Turning to ground 1, Mr Coghlan submitted the offences of the respondent were serious ones with a number of aggravating circumstances. The victim had been invited to the respondent's home, where advantage was taken of him while in a vulnerable condition. When the victim plainly repulsed the respondent he nevertheless continued to seek sexual gratification and this conduct caused great distress which ended in the car accident.

36. Further, Mr Coghlan argued, the victim impact statement shows the serious ongoing consequences to the victim. Despite all this, the principle of general deterrence does not appear to have carried any weight within the sentence.

39. As to ground 2, it was contended that this involved allegations of specific error. Such error occurred, it was contended, in the judge holding that the offending was "very much at the lower range" and therefore constituted an exceptional or unusual feature. The same applied to the finding that there was a low risk of future offending by the respondent. Many of the other matters referred to by the judge in this connection were, Mr Coghlan submitted, not exceptional at all. Further, he argued, the significant prior convictions of the respondent and their detail were not appropriately dealt with in the reasons for sentence - nor was the circumstance that he had already served a sentence of imprisonment for sexual offences.

42. Next, it was urged, error occurred when the learned judge merely regarded s.6D as placing "greater emphasis" on cumulation and upon the protection of the community (p. 50). Next, it was submitted that the consumption of alcohol in this case was not mitigatory and the judge erred in concluding that it was; at most, it simply went to explain what had happened. The judge's characterisation of the rape as a less serious example by reason of "the joint significant intoxication of both yourself and the victim" was wrong in principle. Finally, it was reiterated that very little, if any, weight had been given to general deterrence, and, assuming one gave full weight to matters in mitigation, they were not capable of meriting such a lenient sentence.

45. The content of the outline of argument filed by the respondent first took the Court to the principles governing Crown appeals, as to which, I think, there was no disagreement. It was then submitted that this sentence was not such as would shock the public consciousness, pointing out that the penetration was of the offender's mouth and that count 2 should be objectively assessed as a kiss. The outline proceeded with argument that his Honour did in fact have regard to relevant parts of s.6D and could not have lost sight of the respondent's status as a serious sexual offender because of the frequency with which that expression was used in argument. The reality was, it was submitted, that his Honour must have started with having in mind a period of less than three years' imprisonment as an appropriate disposition. Nor did the Crown prosecutor ever contend that such a sentence was out of range.

48. The outline disputed that the sentence on count 2 was manifestly inadequate. In reality, it was urged, it was manifestly excessive being properly viewed as a kiss. Responding to the Director's outline, it was argued that the respondent had never sought to trivialise the impact of his offending. There was a deal of evidence that he had made ready admissions and cooperated with the police. There was evidence that his conduct had minimised the longevity of the impact on the complainant, and it was rather unreal to describe what happened as a breach of trust.

51. It was disputed that any of the alleged sentencing errors occurred. On the contrary, it was submitted, the factors of the respondent's ready admissions of liability, his remorse and his good prospects of rehabilitation, plus the spontaneous nature of the offending and the remoteness of the prior convictions, made a fully suspended sentence desirable in this case. Other than their bringing s.6D into consideration, it was submitted that the prior convictions were of limited relevance. Their circumstances were significantly different to the relevant offences. As to s.6D it was submitted that it was open to the judge to order concurrency of sentence.

54. As to the consumption of alcohol, it was submitted that on the plea it was simply put forward as an explanation for the loosening of the respondent's inhibitions, and treatment for alcohol abuse was rightly relied on as reducing the risk of re-offending. Finally, it was submitted that the sentence did have an adequate component of general deterrence, while the sum total of the mitigating factors justified the exercise of his Honour's discretion in the respondent's favour.

57. In oral argument, Mr Coghlan submitted that non-custodial sentences for rape should be given very rarely and would be practically out of the question if the offender be a serious sexual offender under the Sentencing Act. He submitted that in coming to the conclusion that this was a proper case for a non-custodial sentence his Honour never really grappled with the circumstance that the respondent was a serious sexual offender. Further, it was very significant that he had already served a sentence of imprisonment as a result of some of his prior convictions. Mr Coghlan argued that the Court should allow the appeal and increase the sentence on count 1 to a sentence exceeding three years, and so no question of suspension of sentence would arise. In considering the alternative of a non-parole period, this Court should not take the view that this case warranted a shorter than usual term.

60. Mrs Morrish for the respondent contended that the protection of the community could be achieved in a variety of ways. In this case there was evidence before the sentencing judge of successful treatment being undergone by the respondent and of his genuine remorse. His Honour was, therefore, entitled to the view that the protection of the community could be served by a totally suspended sentence. She submitted that, while the whole content of s.6D may not have been addressed in argument, the expression "protection of the community" was referred to again and again and his Honour cannot be taken to have insufficiently addressed that matter. She further submitted that if the sentence imposed on count 1 was within range then clearly a total suspension of sentence was open. In this connection, the evidence of successful rehabilitation and of early admissions of liability and pleas of guilty were powerful considerations. Those matters had certainly limited the trauma of the victim. His Honour's ultimate conclusion that this was a "somewhat exceptional case" (page 49) was justified. In particular, Mrs Morrish stressed the period of 14 years since the prior convictions and the evidence of the respondent's struggle throughout with the problems of his sexuality.

63. Thus, it will be seen that argument ranged widely over the grounds pleaded. In the event I have found that a conclusion on an aspect of ground 1 is sufficient to dispose of the merits of this appeal. I would uphold ground 1 inasmuch as it alleges that a manifestly inadequate sentence was imposed on count 1. This finding, if supported by the other members of the Court, vitiates the sentence in the court below.

66. In reaching that conclusion I have followed the process long established by authority. I have first of all identified all the relevant circumstances. In the light of that identification I have then looked at the face of the sentence on count 1. Manifest inadequacy is then apparent or it is not.

69. I do not propose to set out here each and every matter leading to this conclusion, but prominent among them were:

(a) The characterisation of count 1. (Variously described by his Honour as "a very serious offence" or as "a serious offence".)

(b) The circumstance that the respondent fell to be sentenced as a serious sexual offender.

(c) The fact that the respondent had previously served a term of imprisonment for sexual offences.

(d) The contents of s.6D.

(e) The maximum penalty for rape prescribed by Parliament.

Put another way, I find that, even after full weight is given to matters favourable to the respondent - as to which Mrs Morrish has dutifully laid emphasis - the sentence on count 1 fell outside the range of sentences properly available to the learned judge.

75. I have said that if supported my conclusion vitiates the sentence in the court below. Thus, it will fall to this Court to re-sentence the respondent, and a reconsideration of the sentence imposed below on count 2 and the order for total suspension of sentence is available. Bearing in mind that the respondent falls to be re-sentenced as a serious sexual offender, I would propose that on count 1 he be sentenced to be imprisoned for three years, which will be reckoned from today. As to count 2, in my view it is open to me to propose a lesser sentence. I consider that, on the facts, six months' imprisonment is appropriate, this sentence to be served concurrently with the sentence on count 1, making for a total effective sentence of three years. In my opinion, having regard to all the circumstances of this case, an order for total suspension is quite inappropriate. Accordingly, I would further propose that, after the respondent has served twelve months of his sentence, commencing today, the balance of two years of this sentence be suspended for two years. In the composition of this proposed sentence I have applied the doctrine of double jeopardy as it has been adumbrated by the High Court. In that exercise, I have regarded the circumstance that the respondent has been at liberty since the proceedings in the County Court while serving a suspended sentence of imprisonment as having a significance in his favour.

87. Peter Alton Grieves, the Court proposes to make an order suspending part of a sentence of imprisonment to be imposed upon you. The law requires me, in this circumstance, to explain to you the purpose and effect of this order and the consequences that may follow if it is breached. The purpose and effect of the proposed order is to give you, after you have served a term of twelve months' imprisonment, conditional liberty - conditional in the sense that if you avoid committing, whether in or outside Victoria, an offence punishable by imprisonment during the operational period of the sentence, which in your case is two years after your release, you will not be required to serve any more than the initial twelve months. For your information, even the offence of common assault is punishable by imprisonment. Do you understand that?

The appeal of the Director of Public Prosecutions for Victoria is allowed.

In lieu thereof the respondent is sentenced as a serious sexual offender as follows:

The Court directs that the sentence imposed on count 2 be served concurrently with that imposed on count 1, making for a total effective sentence of three years' imprisonment.

The Court orders that two years of the said sentence be suspended for two years after the service of twelve months' actual imprisonment by the respondent commencing today.

The Court directs that the circumstance that the respondent has been sentenced as a serious offender be entered in the records of the Court.