DPP v Muliaina [2005] VSCA 13

DPP v Muliaina [2005] VSCA 13 - VSCA 2005 case summary — Zoe

[22]

I now turn to summarise the circumstances of the offending and do so in the context of the counts contained in the several presentments. I mention by way of background that for some time prior to June 2002 the respondent and the victim, whom he had first met at school, were, for various periods, living in a de facto relationship with one another and in June the victim gave birth to their son. The principal circumstances which gave rise to the offending conduct that was the basis of count 1 on the first presentment were these. On a date in August or September 2002, the victim, who was then aged 18 years and was living with her parents, telephoned the respondent to say that she wanted to end their relationship. Notwithstanding that the respondent became agitated at this news, the victim agreed to his request to meet in a park, which was located approximately one kilometre from the house in which he then lived, so as to give him the opportunity of saying goodbye to his son. As soon as they met, however, the respondent grabbed the victim by the back of her neck and pushed her towards his house. When they got there, he continued to push her (while she tried to hold on to the pram which contained their son), first to the lounge room and then the kitchen. There he took a kitchen knife and forced it into the victim's hand. The respondent then attempted to guide her hand so that the knife would stab him, saying, "Now you can stab me so that it's your fault and you feel bad." The victim, however, dropped the knife when the respondent let her hand go. She then went into the lounge room to attend to their son, but the respondent again grabbed her and dragged her outside. He tied her hands and feet to a wrought-iron garden chair before climbing on top of a table and placing a rope around the rafters of a gazebo and around his neck. He stepped off the table and hung by his neck from the rope. When the victim managed to free herself, the respondent immediately pulled himself back on to the table and told her not to move. She convinced him, however, to let her telephone her mother, saying that the child needed a bottle. During the telephone conversation, the victim was able to tell her mother that she wanted her to come to the house to collect her and her son. Her parents arrived at the scene shortly thereafter and drove her and the child back to their home.

[23]

The second presentment related to the respondent's offending conduct on 15 July 2003, by which date he had resumed cohabitation with the victim. On the morning of that day he became angry with her for getting dressed because, as he said, she knew that he wanted a "root", implying that she was deliberately refusing to satisfy his wishes for sex. He grabbed her by the hair, slapped her face and hit her with a leather strap on the back of her legs several times, causing bruising to her face and legs as well as abrasions to her right arm. This conduct formed the subject of count 1, causing injury recklessly. The respondent then told the victim to get undressed, which she did, because she feared that if she refused he would beat her again. He then demanded that the victim perform oral sex on him but she refused. He grabbed her head and tried to force it down on his erect penis but she refused, saying "no" several times, and moved her head away. This conduct formed the subject of count 2, indecent assault. Count 3 on the second presentment, rape, was an agreed representative count. The conduct comprising this count followed immediately upon the respondent's attempt to force the victim to perform oral sex. He demanded that she sit on top of him and guide his penis into her vagina. He then pushed her onto a mattress which he had placed on the floor, and again put his penis into her vagina. He finally inserted his penis into her vagina again and had sex with her until he ejaculated. In between the latter two episodes he told the victim to get on her hands and knees and tried to insert his penis into her anus. The victim protested and, after a short time, he stopped. This conduct comprised count 4, indecent assault. In circumstances which are not presently relevant, the victim managed to call her parents and her brother, who came to collect her. The police were then called and the victim was taken to Monash Medical Centre where she received treatment for bruising and abrasions to her head, neck, arms, legs and chest. The respondent was interviewed by the police later that day about this incident. He denied having raped the victim but said the couple had argued about sex and that he had slapped her a number of times and hit her on the legs with a belt. On 18 July 2003, the victim obtained an intervention order against the respondent, prohibiting him from coming within 200 metres of her home.

[24]

The offences which were the subject of the third presentment were committed by the respondent on 29 July 2003, by which date they did not cohabit, although it was said by the respondent that the victim had stayed overnight with him on the previous two days. It is not clear whether they had sex on those nights. Be that as it may, on 29 July the victim and her young son, together with the victim's friend, VA and her then ten-week-old daughter, were at the victim's parents' home, where she then lived. The respondent telephoned her, asking if he could visit her. The victim refused his request and an argument broke out between them. The respondent nevertheless drove to the victim's home and banged and kicked on the front door, demanding to be let in. The victim locked the front door and telephoned the police, fearing for her safety. Eventually, the respondent managed to enter the house through an unlocked garage door that led to the laundry, which was also unlocked. This unlawful entry constituted count 1, aggravated burglary. When the respondent entered, VA was standing just inside the laundry, holding her baby. Upon seeing her, he pushed her and the child into the back yard, locking the door behind them. This conduct formed the basis of count 2, common assault. The victim attempted to telephone the police again, but the respondent grabbed the telephone from her and demanded that she "get some stuff" and come with him. He then went to VA and told her that if she told anyone what had happened he would kill her and her child. By this time, the victim was holding her son. The respondent grabbed her by the hair and forced her and the child into his utility. She did as he told her, fearing for her safety, and the respondent then drove off. This conduct formed the subject of count 3, false imprisonment. Whilst he drove, the respondent turned and punched the victim to the head with his fist, saying, "You are going to get it now, bitch, I'm going to fucking kill you" (count 4 - making a threat to kill). When the respondent reached his parents' home, he ordered the victim to go inside. Once she was there, he snatched the child and put him on the floor. He then grabbed the victim by her hair, ripping a clump of it from her head, and threw her on the couch. He then punched her to the face with a clenched fist and hit her with a wooden rolling pin to the legs, shoulders and back, as well as hitting her with a vacuum cleaner hose, before grabbing her by the throat and saying, "Die, bitch, die". This conduct constituted count 5, recklessly causing injury. Later, the police arrived, having been alerted by the respondent's parents' neighbours who were concerned for the victim's welfare. They first spoke to the respondent on the telephone, and then entered the house, negotiating for the release of the victim and her son. The respondent eventually let them go and was then arrested. The victim was treated by ambulance officers waiting at the scene for bruising and swelling to her face, neck, arms and legs. The respondent was arrested that day and was interviewed by the police, in the course of which interview he made a number of admissions.

[30]

It was put for the Director, as I have mentioned, that all the individual sentences are manifestly inadequate. In particular, it was said that the sentence imposed on the rape count is plainly too low, given particularly the following matters. First, the offending involved acts of considerable violence, to which reference has already been made. Further, the respondent accepted that the count was a representative count and, therefore, said counsel, the principles stated in R. v. SBL[4] applied. Next, the maximum custodial sentence for rape is 25 years' imprisonment. In that context, counsel also highlighted the applicant's prior criminal history and the importance of the principles of general and specific deterrence. It was submitted for the Director that like considerations operated generally in relation to the other sentences, with the result that each of them is plainly inadequate. It was, however, acknowledged for the Director, rightly, I think, that the learned judge recognised in her sentencing remarks the violent nature of the respondent's conduct and his anger at the victim during these episodes, describing the conduct as "appalling" and "mind bogglingly brutal". Moreover, it was accepted by the Director that her Honour properly took into account the mitigating factors that were urged on her by the respondent's counsel, except that, according to counsel, she gave undue weight to the respondent's youth and prospects of rehabilitation, as I have already mentioned. It was said, however, that notwithstanding that her Honour recognised these aggravating matters, the individual sentences and the effective orders for cumulation failed to reflect this or the importance of the sentencing principles of general and specific deterrence. For like reasons, it was said, the total effective sentence fails to reflect the gravity, the period of offending, the multiplicity of the offences and victims, the respondent's criminal history and the principles of general and specific deterrence. It was also submitted that the non-parole period was, in the circumstances, too short. These sentencing errors, said Mr McArdle, were of such magnitude that a correction to them was required by this Court.

[37]

The fact that the respondent's conduct in relation to the count in the first presentment might be described as "bizarre", involving a degree of melodrama on his part which was, in the true sense, pathetic from his point of view, cannot hide the fact that he used his superior physical strength and aggressive manner to force the victim to go from the park where they met to his house and there subjected her to a frightening, if not terrifying, experience. In effect, he kept her captive until she managed to deceive him into allowing her to use a telephone to call her parents and thus escape from him. I consider that, in all the circumstances, the sentence of three months' imprisonment in respect of that offending conduct is plainly inadequate. The same conclusion applies, I think, in relation to the sentences imposed for the respondent's offending in the course of which he raped the victim. He beat her because he considered that she had tried to avoid having sex with him and then subjected her to a brutal and humiliating experience when he forced himself on her as described. Thus, for example, the sentence imposed on the rape count is manifestly inadequate given the violent circumstances in which it took place and the fact that, as the respondent accepted, the count was a representative count, thereby entitling the sentencing judge to look at the whole of the circumstances of that offending, even if they disclosed separate offences of the same kind.[8] Similarly, I think, the sentences imposed in relation to the third presentment are plainly too low given the violent nature of the offending conduct, which involved subjecting the victim to a terrifying experience and to being brutally beaten simply because she had refused to see him and denied him access to her house in the context where the court had prohibited his access to it. In particular, the offending conduct that formed the basis of count 3 effectively involved the respondent kidnapping the victim in a violent manner and subjecting her to what must have been a most terrifying experience. In my view, the sentence imposed in relation to that offending clearly does not reflect the gravity of the crime.

[39]

It may be accepted that, ordinarily, an offender's youth is a very powerful mitigating circumstance that calls for rehabilitation to be in the forefront of the factors that govern the sentencing disposition. But it should be said that the offender's youth and the prospects of rehabilitation may be overridden, at least to a significant extent, by other sentencing considerations that point to the need to impose a substantial custodial sentence. The weight to be given to youth as a mitigating factor must depend on all the circumstances of the case. Thus, in R v. Mills[9], Batt, J.A. accepted that the youth of the offender is a primary consideration (my emphasis) for sentencing purposes, and in R. v. Bell[10] the same learned judge again emphasised[11] that the general propositions stated in Mills about the significance of youth of the offender for sentencing purposes "are just that - general propositions". In R. v. Teichelman[12], Batt, J.A., with whom Phillips, C.J. and Buchanan, J.A. agreed, noted[13] that, notwithstanding that the youth of an offender is a powerful mitigating factor, it may, in the face of other powerful considerations, be subjugated to other sentencing principles or purposes. For example, where general deterrence must be emphasised in the punishment of an offence, as here, there may be correspondingly less scope for leniency on account of the offender's youth.[14] I consider that this is particularly so in a case such as the present where, notwithstanding the anger of the respondent, he must have been fully aware of the nature of his offending conduct. I add for completeness that although in the case of a young offender the focus is usually placed on his or her prospects of rehabilitation, it is not really clear to me that her Honour accepted that the respondent's prospects in that regard were sound. It will be recalled that she effectively rejected Dr Leahy's opinion that the respondent was unlikely to commit acts of violence again. Be that as it may, and as I have noted, although her Honour correctly characterised the gravity of the respondent's offending conduct, she probably gave undue weight in her sentencing disposition to his youth and gave insufficient attention to the principles of general and specific deterrence. Thus, as I have said, I consider that the individual sentences, or at least a significant number of them, are plainly inadequate, as is the total effective sentence. For completeness I mention that, in my view, the circumstances of this case do not warrant this Court exercising its overriding discretion to decline to intervene in the sentencing process. Consequently, I would allow the Director's appeal and re-sentence the respondent.

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Judgment (65 paragraphs)

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