DPP v Maynard [2009] VSCA 129

The sentence on the first presentment is a period of four years.[1] I cumulate the two years of the sentence on the second presentment on the sentence of two [sic] years. This means that the head sentence is a sentence of six years and I order that you serve a non parole period of four years.

2 The record of the court's order reflects the above statement notwithstanding the fact that after handing down her sentence, and following a suggestion from the prosecutor as to the appropriate form of the order, her Honour indicated that she would treat the sentence on count 2 of the first presentment as the base sentence and would order that two years of the sentence on count 1 of the second presentment be cumulated on the base sentence.[2] By either form of order[2] that resulted in a total effective sentence of 6 years' imprisonment. It was directed that the respondent serve a minimum of 4 years' imprisonment before becoming eligible for parole.

3 The Director has appealed the sentences imposed on 3 counts and the total effective sentence of 6 years imprisonment on grounds (inter alia) of manifest inadequacy.

4 Before turning to the details of the bases upon which the sentences are appealed it is appropriate to set out something of the circumstances of the offending and of the personal circumstances of the respondent.

5 The events comprising the factual basis of the first presentment being counts of armed robbery (count 1) and rape (count 2) occurred in the early evening of 15 August 2007. The victim was 15 years of age at the time, and was walking home from the Corio Leisuretime Centre where she had been playing netball.

6 The Centre was located approximately 300 metres from the victim's house. The victim heard some footsteps behind her. She turned around and saw the shadow of a person, the respondent, running up behind her. The respondent then appeared in front of her, and after he had run past her to her right hand side, turned and faced her. He put up his left hand, put it on her mouth and showed her that he had a knife. He then said 'don't scream or I will kill you'.

7 The victim pleaded with the respondent to release her. The respondent refused and suggested that he had connections with the 'Black Ulans', a motorcycle gang. He then grabbed her on the right breast, squeezed it and said 'you have nice tits'. He then asked 'have you got anything of value in your bag from netball'. She replied 'just a mobile phone' and he said 'give it to me'. She took it out of her bag and gave it to him. He then asked her for the code to the phone, which she gave him. This event formed the factual basis of the count of armed robbery.

8 Throughout her ordeal the victim was pleading to be allowed to return home. At one point she started to raise her voice, hoping that someone would hear her. The respondent then held his knife to her neck, and told her to pull down her knickers. She said 'no, please, can I just go home', and he said 'pull them down ...'. She then pulled them halfway down and he said 'pull them down. Take them off'. She took them off and the respondent undid his pants, climbed on top of her and placed his penis inside her.

9 After approximately five minutes, the respondent released her, saying 'don't look back and don't tell anyone'. She went home and told her step-father who contacted the police.

10 The respondent was interviewed by police on 18 September 2007 in relation to another matter. He was asked if he had any knowledge of the offences which had been committed on 15 August 2007. He said that apart from what he had seen on the television news he had no knowledge of such matters. Following the commission of the offences, the subject of the second presentment, the respondent was arrested on 23 November 2007 and interviewed again. On this occasion, he made full and detailed admissions to police as to the circumstances of his rape and armed robbery on 15 August 2007.

11 The events which constituted the second presentment occurred on 22 November 2007. At approximately 5:50 pm the victim, who was 21 years of age, was watching television in the main bedroom of the house she shared with her boyfriend in Carlton. She heard a thud and was then confronted by the respondent in the corridor of her house. He was wearing a 'hoodie'. The victim yelled at the respondent to leave, but he ordered her into the bedroom and produced a knife. These events formed the factual basis of count 1, a count of aggravated burglary. The victim screamed and backed up against the bedroom wall. The respondent pushed her and grabbed her right knee and parted her legs (count 2 - indecent assault). There was a struggle during which the victim received cuts to her right thumb and palm and an abrasion to her lip and right chin (count 3 - recklessly cause serious injury). The victim then escaped to her neighbour's property.

12 Following his arrest the next day, the respondent was interviewed by police in relation to the events of the previous evening. He made full admissions as to his entry into the house with a knife and as to the struggle which took place. He asserted however that the victims legs were parted by him in the course of the struggle and not in the course of an indecent assault.

13 The respondent was 19 years of age at the time he committed the offences and 20 years of age at the time of sentencing. His father is an indigenous activist who lives in Tasmania and does not appear to have been involved in the respondent's upbringing. In his formative years the respondent lived with his mother in Adelaide, and later in Geelong, although his relationship with her deteriorated due to her long working hours. He was expelled from school in year eight for fighting. After leaving home in 2005 at the age of 15, he commenced drinking alcohol and using cannabis. His use of drugs and alcohol has continued and has included the use of amphetamines, LSD and heroin. At the time of committing the offences the subject of both presentments, the respondent was under the influence of drugs and alcohol.

14 The respondent has prior convictions for burglary, theft, arson and armed robbery and was incarcerated previously at the Malmsbury and Parkville Youth Training Centres.

15 In her reasons for sentence, the sentencing judge referred to three reports which had been placed before her. There was a psychiatric report prepared by Dr Danny Sullivan, a report by Mr Bernard Healey, a clinical psychologist and a report by Dr Chris Drake, a senior clinical psychologist. The last mentioned report was obtained by order of her Honour as a pre-sentence report. Dr Sullivan diagnosed the respondent as having a conduct disorder with no evidence of paraphilia. Mr Healey stated that the respondent was 'a victim of drug and alcohol abuse leading a directionless and self-destructive existence'. Both Dr Sullivan and Mr Healey opined that the respondent required treatment for drug and alcohol abuse. Dr Drake stated that the respondent had ongoing serious issues of abandonment and detachment from others, which impacted severely upon his sense of self. He said that the escalating seriousness of the respondent's violent offending over the years combined with his personality disturbance, relationship instability, early maladjustment, substance abuse problems and prior supervision failures placed him at a high risk of further criminal behaviour.

16 The respondent was the subject of a youth parole order at the time of the commission of the offences on the first presentment, having been released from the Youth Training Centre on 12 June 2007.

17 Initially, the Director of Public Prosecutions appealed against the sentences on two grounds. The second ground, to which we shall hereafter refer, was eventually abandoned.

18 The appellant submitted that the individual sentences imposed on the first presentment in respect of count 2 (rape), and counts 1 and 3 of the second presentment (aggravated burglary and recklessly causing serious injury), the total effective sentence and the non-parole period fixed were all manifestly inadequate. In particular the appellant submitted that the sentencing judge failed:

(b) to deter him or other persons from committing the same offence;

(c) to manifest the denunciation by the court of this type of conduct;

(e) to have sufficient regard for the maximum penalty prescribed for the offences;

(f) To have regard to the nature and gravity of the offences;

(g) to have regard for his culpability and degree of responsibility for the offences; and

(h) to have regard for the impact of the offences on the victims.

The appellant submitted also that the sentencing judge:

(i) failed to have sufficient regard to aggravating features of the offending, and in particular: the age of the victims, the vulnerability of the victims, the use of a weapon and threats during the offending, the use of violence in order to commit the offences, the home invasion involved in the second instance of offending; and

(j) gave too much weight to mitigating factors concerning the offender, in particular the offender's drug and alcohol use and dependence, the plea of guilty, the offender's co-operation with authorities, and the age of the offender at the time of the offences.

19 Ground 2 of the Director's notice of appeal contended that 'to the extent that the sentencing judge had regard to current sentencing practices in determining the sentence' imposed on the count of rape, then such 'sentencing practices in respect of the offence of rape are inadequate' and that 'current sentencing practices in respect of the offence of rape committed by an offender on a victim unknown to him are inadequate'.

20 At the outset of oral argument senior counsel for the Director submitted that the count of rape was a particularly serious example of the offence and that the 'starting point' in considering the appropriate sentence for that offence is 50% of the maximum penalty. Discussion then took place between counsel and the court as to whether or not such a sentence as proposed would be in accord with current sentencing practices[2] and, if not, whether the principal argument was to be that enunciated by ground 2, that is, that current sentencing practices for the offence of rape are inadequate. After some debate counsel for the appellant informed the court candidly that he did not intend to persist with the second ground of appeal. He informed the court that he was content to argue that the sentences imposed by the sentencing judge in this case were well below the range of sentences that are appropriate as evidenced by current sentencing practices. In what appeared to have been an alternative submission, he contended that the sentencing judge had given too much weight to current sentencing practices. Upon it being pointed out that there was no ground or particular pleaded to support such an argument, he then applied to amend the particulars to ground 1 by adding a particular that the sentencing judge 'placed too much reliance on current sentencing practice'.

21 In opposition to the course which the appellant wished to follow, counsel for the respondent submitted first that the court should strike out ground 2. He submitted that the Director should not be permitted to raise an argument as to the adequacy of general sentencing in a particular class of case without having addressed the matter at first instance. In this regard, he relied upon DPP v Duong.[3] Furthermore, he argued that the court has no jurisdiction to entertain such a ground. He referred to Wong v R[4] in support of this contention. He submitted also that even if the court was of the view that prevailing sentencing standards for the offence of rape are too low, sentences should be increased only by an upward trend and 'not by leaps', and only after due warning as stated in Poyner v The Queen.[5] Secondly, he objected to the proposed amendment as the respondent had been given no notice of the application to amend. He was not able, however, to identify any prejudice that would be suffered if the court permitted the amendment. In response, counsel for the Director announced that he wished to abandon ground 2. The Court permitted him to do so, neither party having filed material nor provided any outline in support of the jurisdictional issue. The court allowed the appellant to add the proposed particular to ground 1 as no prejudice would follow from the amendment.

22 On the count of rape, the Director submitted that 'the respondent committed a brutal rape on a completely innocent and vulnerable young girl who was simply walking home in the early evening,' and that the sentence of four years' imprisonment imposed on this count failed to reflect the seriousness of that crime.

23 The Director relied particularly upon a number of aggravating features including the facts that the victim was only 15 years old and was a virgin at the time of the offending[6]; the respondent failed to wear a condom[7]; the attack occurred in public, and close to the victim's home; the respondent was a complete stranger;[8] and the physical and emotional consequences for the victim were significant.

24 In relation to the counts on the second presentment, the Director submitted that the offences were committed in a private home at knife point and in 'terrifying circumstances,' the knife being used in furtherance of the home invasion and indecent assault and the victim being injured whilst resisting the sexual assault. Counsel for the appellant acknowledged that the injuries sustained by the victim were not at the higher end of serious injuries but he submitted that the circumstances of this offence were nevertheless a serious instance of the offence of recklessly causing serious injury, involving, as it did, the use of a knife.

25 Furthermore, in relation to the offences comprising count 1 and count 3 on the second presentment, the Director relied upon the further aggravating features that the offences occurred at night and involved a young and vulnerable victim. As he pointed out, the victim developed a post traumatic stress disorder and felt it necessary to sell her house.

26 It was submitted that the high maximum penalties imposed by Parliament for each offence,[9] indicate the seriousness of the offending and that the sentencing judge failed to give this adequate weight.

27 In relation to the offences on both presentments, the appellant referred also to the respondent's prior criminal history and his inability or unwillingness to account for the sexual aspect of his offending in each episode. It was submitted that these factors meant that specific deterrence should have been a significant factor in the sentence imposed. It was submitted, further, that as each of the offences involved young and vulnerable victims, and occurred within a short period of time of each other, protection of the community was a factor which demanded that longer sentences should have been imposed. It was submitted that the fact that the offences the subject of the first presentment were committed whilst the respondent was on parole was significant in the sentencing disposition.

28 Having regard to all of the circumstances of the offending and those personal to the respondent, it was submitted by the Director that the sentences imposed on the counts of rape, aggravated burglary and recklessly causing serious injury represented an egregious departure from the sentencing standards appropriate for offences of that nature and seriousness involving error in principle so as to be not only manifestly inadequate but to warrant appellate intervention on a Crown appeal.[10]

29 As the respondent had pleaded guilty at an early stage it was submitted that he should receive the full benefit of the discount for doing so. In mitigation, counsel for the respondent referred to the youth of the respondent, he being 19 years of age at the time of the commission of the offences and 20 years of age at the time of sentence. Counsel drew attention to the respondent's deprived and disrupted indigenous background and referred to the respondent's 'sense of abandonment' by his father which was emphasised in the various reports to which we have referred. Counsel acknowledged that consideration of the principle discussed in R v Fuller- Cust[11] had not been raised on the plea; hence it was not the subject of any consideration by the learned sentencing judge. It was said that the respondent's level of co-operation with the authorities after he was arrested following the commission of the second set of offences and his prospects of rehabilitation were important mitigatory considerations.

30 Counsel for the respondent contended that notwithstanding that the offending of the respondent was extremely serious, the sentencing judge was obliged to give weight to his client's prospects of rehabilitation having regard to his youth and the fact that previously the respondent had never committed an offence of a sexual nature. Counsel acknowledged that alcohol and drug abuse had proven to be a long term problem for the respondent, but contended that his work record and his completion of a traineeship demonstrated that he had some prospects for rehabilitation. Counsel took issue with the opinion evidence of Mr Drake and upon which the sentencing judge had relied, that the respondent was at high risk of further offending. Counsel argued that the respondent's personal circumstances did not warrant that conclusion.

31 It is unnecessary to repeat the principles which govern a Director's appeal and which are set out in R v Clarke,[12] beyond a reference to DPP (Vic) v Bright in which it was said:

[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".[13]

32 In considering the appropriateness of the sentence imposed on each count the subject of appeal, it is necessary to have regard to those factors relevant to the discretion of the sentencing judge in the particular case. They include those specified in section 5(2) of the Sentencing Act. One such factor is current sentencing practices.[14]

33 Consideration of sentences imposed in other cases, either in isolation or in the context of sentencing statistics, may play a significant role in the formulation of an appropriate sentence. In R v Giordano[15] Winneke P while cautioning about the weight that might be given to such statistics observed that:

...a general overview of the sentences imposed by courts over a substantial period for offences of a similar character must inevitably play its part in provoking the instinctive reaction of any court which is asked to consider whether a particular sentence is manifestly excessive or manifestly inadequate.[16]

34 Recognising the limited, but important assistance that sentencing statistics and comparable cases can provide, the Court was referred by counsel for each of the parties to the Sentencing Snapshot for the offence of rape comprising the period 2001-2006. This document showed that the median term of imprisonment and the most common term of imprisonment during that period was five years. Counsel for the appellant also submitted a comparative analysis of some 23 cases determined in 2007-2008 which demonstrate a median sentence of seven years' imprisonment in 2007 and five years' imprisonment in 2008. The mean sentence for the same periods was 7.5 years and 5.4 years imprisonment respectively.

35 By reference to both the statistics and to a number of what were said to be comparable cases it was submitted by counsel for the respondent that sentences of four years' imprisonment have been imposed for the offence of rape and that this indicates that the sentence imposed in the present case was within the range of sentencing options available to the sentencing judge.[17] In our view, however, such an argument demonstrates why care must be taken when making comparisons between individual cases and in using statistics. Statistics do no more than establish minimum and maximum sentences and the average and median sentences imposed over a particular, and necessarily arbitrary period. Indeed, there is a danger that undue reliance upon the average or median sentence imposed during a particular period will distract the sentencing judge from the particular circumstances of the case in hand and has the capacity to distort sentencing in particularly serious cases towards the average or median figure. The statistics cited provide guidance in only a limited way to the sentence that should have been imposed in this case. By themselves, statistics do not establish a sentencing practice.

36 As to the comparison that was undertaken in this case with other cases, it has been stated frequently by this court that 'comparable cases' can be of only limited assistance. The cases that were cited before us do not represent a sentencing 'practice' for the crime of rape for the purposes of section 5(2). They do not support the respondent's contention that the sentences imposed were within the range of sentences reasonably open to the sentencing judge.

37 That said, however, the fact that the respondent received a sentence for the count of rape which was below the average is significant when regard is had to the aggravating factors present in this case and significant in our consideration of whether or not the sentence imposed is manifestly inadequate. Significant also is the sentencing judge's finding as to the poor prospects for rehabilitation in respect of the respondent. We have not been persuaded that the sentencing judge made any error in so concluding.

38 The seriousness with which Parliament views the offence of rape is indicated by the fact that it has fixed a maximum penalty of 25 years' imprisonment. The maximum provides a yardstick for the exercise of the discretion by the judge[18] and is one of the factors that the sentencing judge is bound to take into account under s 5 (2) of the Sentencing Act.[19] The seriousness of the offence of rape was considered in DPP v Avci[20] where Maxwell P with whom Buchanan and Redlich JJA agreed said:

[26] In his submissions, the Director rightly emphasised the fact that Parliament has fixed a maximum penalty of 25 years' imprisonment for rape. This is the highest maximum provided for by the Crimes Act. 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 ('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:

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.

[28] In the present case, the periods of imprisonment imposed for the respective rape offences were as follows: 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.

39 These comments are apposite. In our view there were a number of features of the offences in that case that are similar to those in the present although the individual sentences fixed in that case may well have been moderated because of the number of counts of rape. Although the Director appealed only the non-parole period in Avci, the President left open the question whether the individual sentences for the counts of rape were appropriate. The very recent decision of this court in R v Hyland also provides some useful guidance as to the appropriate range of sentences for more serious examples of this crime.[21]

40 We are of the view, as was the learned sentencing judge, that special deterrence and protection of the community are of particular significance in the present case. The contention of the respondent that he should not be viewed as being at a high risk of further offending cannot be sustained. The respondent has a history of failing to comply with previous orders. He had been released only a short time and was on parole when he committed the first of these offences. He has shown a long standing predisposition to substance abuse. By his own admission these offences were committed whilst he was under the influence of drugs.

41 The youth and deprived background of the respondent is, of course, a significant matter. However, these factors cannot overwhelm the sentencing process in circumstances of very serious offences. Consideration of current sentencing practices reveals that significant sentences have been imposed upon youthful offenders who commit serious rapes. In R v JED[22] a 15 year old boy who had a deprived background and who pleaded guilty to the rape of an 83 year old woman was sentenced to seven years' imprisonment on a count of rape. Likewise in R v Hakeem[23] a 19 year old youth, who also had a deprived background and who had pleaded guilty to the rape a 53 year old woman was sentenced to seven years' imprisonment on the count relevant to that offence. Indeed in each of those cases the sentence imposed may well have been moderated by reason of the number of counts upon which each prisoner was being sentenced. Making proper allowance for the youth of the respondent and the other mitigating factors to which reference has been made, we consider that the sentence imposed on the count of rape was so inadequate as to demonstrate plain error in sentencing principle. The sentence imposed was only 16% of the available maximum. It does not accord with current sentencing practice for such a serious example of the offence.

42 As to the count of aggravated burglary on the second presentment, we are also of the view, having regard to the circumstances of aggravation, that the sentence imposed was egregiously inadequate and is suggestive of error. In relation to count 3 on the second presentment, little material was put before the court in either written or oral submissions. Notwithstanding the aggravating features relied upon by the Director, we are not satisfied that the sentence imposed by the sentencing judge, although low, was outside the range of sentencing discretion which was open to her.

43 In re-sentencing the respondent on count 2 on the first presentment (the count of rape) and count 1 on the second presentment (the count of aggravated burglary), allowance must be made for the respondent's exposure to double jeopardy.[24] Having regard to all of the relevant factors, were we not so constrained, we consider that a sentence of eight years' imprisonment would have been appropriate on the count of rape and a sentence of seven years' imprisonment appropriate on the count of aggravated burglary. It is necessary to observe that in concluding that such sentences would have been appropriate, we are doing no more than stating that such sentences would be within the appropriate range of sentences in all the circumstances of this case. It would have been open to the sentencing judge considering all relevant circumstances to have imposed somewhat higher sentences. Allowing for double jeopardy we fix a sentence of 6 years and 6 months' imprisonment on the count of rape and a sentence of 4 years and 6 months' on the count of aggravated burglary. It remains to make an order for cumulation which produces a sentence that accords with the principle of totality. We will order that two years and six months of the sentence on the count of aggravated burglary be cumulated upon the sentence imposed by us upon the count of rape, this making a total effective sentence of 9 years' imprisonment. We will order that the respondent serve a minimum of six years' imprisonment before he is eligible for parole.

[1] This appears to have been on the basis that all of the sentences on the first presentment were to be served concurrently as is the presumption under the Sentencing Act 1991 (Vic).

[2] The order contain other errors including a direction that there be a minimum sentence of four years on the sentences imposed on the first presentment and a separate direction of a minimum term of four years on the total effective sentence. Section 11 of the Sentencing Act 1991 (Vic) requires that only one minimum sentence be fixed.

3 It was open to the sentencing judge to sentence either by cumulating part of the sentence on one presentment on the sentence on the other presentment, or by identifying a base sentence on one presentment and cumulating part of the sentence on one count of the other presentment on the base sentence.

[2] See s 5 of the Sentencing Act.

[3] [2006] VSCA 78, [21].

[4] [2001] HCA 64; (2001) 207 CLR 584 [49], 603.

[5] (1986) 66 ALR 264, 60 ALJR 616.

[6] R v Matthews, unreported, Court of Appeal (Vic) 9/10/1996, at 7-8, Fox and Frieberg Sentencing State and Federal Law in Victoria, 2nd edition, paras 3.624 and 12.406.

[7] R v Klem [2008] VSCA 136, [18]-[20] (Neave JA) and [34] (Pagone AJA).

[8] DPP v Vivona [2005] VSCA 205, [10] (Harper AJA).

[9] 25 years for aggravated burglary and 15 years for recklessly causing serious injury.

[10] DPP v Bright [2006] VSCA 147.

[11] [2002] VSCA 168; (2002) 6 VR 496, 520 (Eames JA).

[12] [1996] VICSC 30; [1996] 2 VR 520, 522 (Charles JA).

[13] [2006] VSCA 147.

[14] Section 5(2)(b) Sentencing Act 1991.

[15] [1998] 1 VR 544.

[17] Referring to GJ [2008] VSCA 222, Alexander [2007] VSCA 178 and Cardamone [2007] VSCA 77; (2007) 171 A Crim R 207.

[18] Markarian v R [2005] HCA 25; (2005) 215 ALR 213, [30]-[31].

[19] Section 5(2)(a).

[20] [2008] VSCA 256.

[21] [2008] VSCA 220. The offender raped an 80 year old woman in her own home. A sentence of 12 years was not viewed as manifestly excessive.

[22] [2007] VSC 348.

[23] [2007] VSC 5.

[24] DPP v Bright [2006] VSCA 147; (2006) 163 A Crim R 538, 540 (Chernov JA), 542 ( Redlich JA).