DPP v Short [2006] VSCA 120

1 I agree with Vincent, J.A., for the reasons he has stated, that the appeal should be allowed and the respondent re-sentenced as his Honour proposes.

2 This is an appeal by the Director of Public Prosecutions against the sentences imposed upon the respondent in the County Court at Melbourne, on 8 December 2005, on four counts of rape of his former female partner (counts 6, 8, 9 and 10), one count of common assault (count 2) and one count of causing injury intentionally to her (count 7).

The Background

3 The victim of the various offences, [V], commenced a relationship with the respondent, in mid 1998. There is no need to set out the detail of its history. It is sufficient to state that the material before the Court suggests that, at least during the latter part, there was considerable volatility in their interactions.

4 After they had been together for two years, they took up residence in a rented house in Keys Street, Beaumaris. Their cohabitation, and, in some senses, their relationship, ended in mid-March 2002, at which time it was agreed that V would continue living in the premises until she could make other arrangements and that the respondent would pay the rent in the meantime. He was conducting a business at Mount Buller and had commenced living there on a full time basis. On 1 September 2002, V moved to a house in Bodley Street, Beaumaris.

5 After V and the respondent ceased to live together, they continued to associate on a limited basis. They met from time to time, entered into other arrangements concerning accommodation and there were further arguments. In April 2002, for example, there was an incident in the course of which V stomped on the respondent's foot. This occurred during an argument in an hotel bar and,

according to V, in consequence of threats made by the respondent. She disputed his contrary version of this incident and his assertion that the stomping caused his foot to bleed. On a subsequent occasion in the same bar, V stomped on the respondent's foot a second time, during another argument which developed while they were watching a television programme called Sex in the City.

6 Nevertheless, in August 2002, V went to Mount Buller to attend a "Christmas in July" dinner with him. During the evening, the respondent raised the possibility of the resumption of their earlier relationship. Although V indicated that she did not want this, she did engage in consensual sex with him. Whilst the couple had agreed to go their separate ways, it is apparent that they still maintained a relationship of sorts during this period.

17 September 2002

7 After V moved out of the Keys Street residence, and into the house in Bodley Street, they entered into an arrangement under which the respondent could stay at her home when he was in Melbourne.[1] On 17 September 2002, on such an occasion, the respondent and V went out for dinner. V asserted that she agreed only because she wanted to resolve the issues that had arisen between them.

23 September 2002

8 On the evening of 23 September 2002, V went to the Beaumaris Hotel with two friends to celebrate her birthday which fell on the following day. Earlier that day, V had encountered the respondent, and mentioned that he was welcome to attend. He accepted and joined them at the hotel. V and he spoke and, soon afterwards, at about 6.10pm, V left the bar and went to her home which was located only a short distance from the hotel in the same street. At that stage, the respondent was still in the hotel talking to other people.

The Evidence of V[2]

23 September 2002

9 V stated at each of the two subsequent trials of the respondent that, not long after arriving home, she heard a knock on the door. On opening it, she found the respondent outside. She tried to stop him entering, but, she said, he forced his way into the house (count 1)[3] and she ran into the nearest room, which was her bedroom. The respondent followed her. V threw herself onto the bed, and turned onto her back to kick towards him. The respondent grabbed her jeans, and pulled them off. He then pinned her onto the bed with his right arm over her throat. She pinched his stomach as hard as she could, and he hit her across the face with an open hand three times (count 2), saying, "Don't fucking touch me slut". This caused V pain, and damaged her jaw. She said that he then perpetrated two acts of rape against her. As the respondent was ultimately acquitted of the commission of these offences, the detail of V's evidence need not be set out.

30 December 2002

10 V said that, on the evening of 30 December 2002, she was at home alone. It was a very hot night and, at around 11.00pm, she had a shower and was preparing to go to bed. As she walked naked from the bathroom, she noticed a television show on the American prison island Alcatraz which interested her as she had previously visited there, and she sat on the couch to watch it. After about four or five minutes, she realized that someone was behind her. She looked around and saw the respondent leaning over the couch looking at her.

11 She got up immediately and ran to the other side of a coffee table in the room, screaming at him to get out. He told her to stop, and said that he just wanted to talk to her. V tried to rush towards the front door, but the respondent grabbed her by a bangle on her arm, and twisted her wrist over her body. She screamed out for help, and he again told her to "shut up". He pushed her into the bedroom and onto her bed. He pulled her legs up by the ankles and said, "This is what I've come for", and put his mouth on her vagina. She pleaded to him to stop, but he penetrated her vagina with his tongue (count 6). She tried to struggle and begged him to stop without avail. The respondent undid his shorts, and she started kicking at him. He positioned himself on top of her and holding her by the throat, penetrated her vagina with his right hand (uncharged).

12 V punched and kicked at him. The respondent became angry and, with his right hand, punched her on the end of the nose (count 7). A few seconds later V felt blood running down towards her mouth. She became hysterical and yelled and punched at him. He then sat on her chest and punched her in the brow area with both hands. Her nose was bleeding and she felt blood running into her ears and down her back. The respondent said, "Jesus Christ, you really are bleeding", and she told him to leave her alone and call a doctor. He then took her to the bathroom, where she saw in the mirror that she was bleeding profusely. She said to the respondent, "Don't kill me", and he responded, "I'm not going to fucking kill you". He pushed her into the shower and she begged him to not drown her. He held her head under the water and washed the blood off her back and legs. He dried her, helped her back to the bedroom and placed a band-aid over her forehead.

13 As V was lying on the bed, the respondent sat next to her and started talking about a man, with whom he apparently suspected that she had been involved while they were together. He said, "You deserved all you got", and she said that she had not had an affair with this person and something to the effect, "You just want to justify your crime". The respondent became angry again and pushed a pillow into her face, saying, "I should suffocate you as well". V managed to push the pillow away, and the respondent climbed on top of her and sexually penetrated her vagina with his penis (count 8). She complained, but did not physically resist as she was scared that she would be further injured. The respondent withdrew his penis, then lifted her legs into the air. He suggested that they have anal sex, in which they had not previously engaged, and V screamed, "No, no, please don't". The respondent said, "OK", pushed her legs towards her chest, and penetrated her vagina with his penis again (count 9). The pressure of her legs and his body weight caused V to open her bladder in the bed, and the respondent said, "Gee that's good, I can see you're enjoying it". He continued penetrating her in that position, then withdrew his penis and turned her onto her stomach. He pulled her onto her knees and said, "Let's do it doggy style the way you like it". He penetrated her vagina with his penis, and had sexual intercourse in that position until he ejaculated (count 10).

14 When he had finished, the respondent saw that she had blood on her face, and tried to wipe it with a face washer. She told him to go away and he left the bedroom and had a shower. V contemplated telephoning the police or her friend, Rada, but the respondent returned before she could do so. He sat on the bed getting dressed and said, "I think I've got the hint now. You don't want me back, you won't be seeing me again". He stood up and left the house by the front door. As he left he said, "Don't bother telling anyone about this because no one will believe a slut".

15 After the respondent left, V ran to the toilet and vomited. She then ran into the living room to shut the door through which the respondent had entered. She telephoned her friend Rada, and told her that she had been raped. Her friends arrived at the house within 15 minutes and the police and ambulance attended soon afterwards. V was then conveyed to the Monash Medical Centre. Her injuries included a cut to the brow, broken nose, damaged jaw, torn gum inside her mouth, bruising on the breast and side and lacerations and bruising in her vagina.

Other Evidence

16 In addition to V, evidence was given in the trial with which we are directly concerned by a number of other witnesses to which brief reference should be made.

17 Dr Jock Plenderleith, a general practitioner, gave evidence that he was working at the Hampton Bayside Medical Centre when V attended the clinic on 25 September 2002, complaining of a sore jaw. He examined her and found she was tender over the right temporomandibular joint[4]. He referred her for an X-ray, which was subsequently found to show no damage to the bone.

18 Dr Amanda Wilkin, a medical practitioner employed by the Victorian Institute of Forensic Medicine, said that she examined V at the Monash Medical Centre at 4.25pm on 31 December 2002. She noted a 2cm laceration above the right eyebrow with associated swelling and tenderness; red/purple bruising along the right upper eyelid, towards the inner nose; tenderness over the right parietal area (above and behind the right ear); a 6x1cm red bruise on the right cheek extending down to the angle of the lower jaw; two 5x1cm bruises on the left cheek in front of the ear; tenderness over the bridge of the nose and dried blood in both nostrils; tenderness above and behind the left ear; a 2x1cm blue/red bruise on the left side of the neck above and lateral to the thyroid cartilage of the Adam's apple; a 4x6cm patchy red bruising on the front left shoulder; an 8cm healing scratch/abrasion on the inside left forearm; a 2cm red/blue bruise on the back of the right wrist; mild tenderness over the entire back; and tenderness over the front lower left leg.

The First Trial

19 The applicant was initially presented in the County Court on 31 May 2004 on a presentment containing nine counts of rape, two counts of aggravated burglary, one count of common assault, two counts of attempted rape and one count of causing injury intentionally. He pleaded not guilty and a trial was conducted at the conclusion of which the jury returned verdicts of guilty on the two counts of aggravated burglary, one count of assault, and six counts of rape and one count of intentionally causing injury.

20 He was sentenced as follows:[5]

On count 11 (intentionally cause

injury) -

His Honour directed that nine months of the sentence imposed on count 5, nine months of that imposed on count 7, six months of that imposed on count 8, 10 months of that imposed on count 9, six months of that imposed on count 11, 10 months of that imposed on count 12 and 10 months of that imposed on count 14, be served cumulatively upon each other and upon the sentence imposed on count 15. This created a total effective sentence of seven years imprisonment in respect of which a non-parole period of five years was fixed. His Honour further declared that the respondent had been sentenced as a serious sex offender on counts 5, 7, 8, 9, 11, 12, 14 and 15.

21 He successfully appealed against these convictions and a re-trial was ordered.

The Second Trial

22 In due course, the presentment currently before the Court was filed over. Again the applicant pleaded not guilty and was convicted on the counts with which we are here directly concerned. Importantly, he was acquitted of the commission of the two acts of rape and the offence of aggravated burglary alleged to have been perpetrated on 23 September 2002.

23 He was convicted on the counts of rape (namely counts 6, 8, 9 and 10) and the count of causing injury intentionally (count 7) arising out of the occurrences on 30 December, but acquitted on the count of aggravated burglary also laid against him and arising out of that incident (count 5). The basis for the jury verdict on this count is unclear. They may have had some reservations about the evidence of V as to the circumstances under which the respondent came to be in the house. If they accepted her version of finding him there, her immediate demand that he leave, his refusal to do so and his statement as he commenced to rape her "This is what I've come for", it is difficult to see why they did not return a verdict of guilty. However, the possibilities exist, of course, that they considered that the respondent could have entered with the intention of talking to V, or they may have returned a merciful verdict in view of their findings on the other counts.

24 After hearing a plea in mitigation of penalty, the learned sentencing judge, on 13 December 2005, imposed the following sentences:

On count 2 - a fine of $300 was imposed, with a conviction;

On count 6 - two years imprisonment;

On count 7 - one year imprisonment;

On count 8 - two years imprisonment;

On count 9 - two years imprisonment; and

On count 10 - two years imprisonment.

His Honour directed that six months of the sentences imposed on each of counts 6, 7, 8 and 9 be served cumulatively upon count 10 and upon each other. This created a total effective sentence of four years' imprisonment, in respect of which a non-parole period of three years was fixed. A further declaration was made pursuant to section 6B of the Sentencing Act 1991 that the respondent was sentenced as a serious sexual offender on counts 8, 9 and 10.

The Director's Appeal

25 The Director of Public Prosecutions in his Notice of Appeal contends that:

1. The individual sentences imposed, the total effective sentence and the non-parole period are each manifestly inadequate.

PARTICULARS

In imposing the individual terms of imprisonment, in making the orders with respect to cumulation and in fixing the non- parole period, the learned sentencing judge:

(a) failed to adequately reflect the gravity of these 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;

(f) gave insufficient weight to the maximum penalties applicable to these offences;

(g) gave insufficient weight to the facts that the respondent fell to be sentenced as a serious sexual offender on counts 9 and 10;

(h) gave insufficient weight to the respondent's lack of remorse; and

(i) gave insufficient weight to the effect of the offending upon V.

2. In imposing the individual terms of imprisonment, in making the orders with respect to cumulation and in fixing the non-parole period, the learned trial judge erred in imposing the sentences that were significantly lower than the sentences imposed upon the respondent following his earlier trial.

26 Counsel appearing on behalf of the Director commenced his submissions with consideration of ground 2 and it is, I think, appropriate that I deal with his contentions in the order in which they were argued before the Court.

The Grounds

27 In the course of imposing sentence, the learned judge said -

"I have heard submissions and accept that to avoid any sense of injustice or a sense of double jeopardy, the previous sentences that have been imposed on an earlier occasion should not be increased. Indeed, there are now certain factors that militate towards some moderate decrease and I refer in particular to the fact that the unfortunate need for an appeal and the re-trial has meant even greater delay in bringing this matter to conclusion. You have been subjected now to two trials and an appeal. You have been in gaol, out of gaol and now back in gaol. All of that, obviously, has imposed added hardship on you and I take it into account."

28 Counsel submitted that it is apparent from this passage that his Honour appeared to regard the individual sentences imposed by the judge, at the first trial, as establishing a "ceiling" that effectively limited the exercise of his discretion thereby precluding the possibility of imposing any greater sentence for the individual counts and, by reason of the verdicts of not guilty, necessitating the imposition of a substantially lower total effective sentence.

29 I do not agree. Indeed, on their face, his Honour's remarks indicate that he appreciated that he had to make his own determination of the appropriate sentences to be imposed. In doing so he considered the submissions made on behalf of the respondent. He certainly did not suggest that he regarded himself as bound not to impose any greater sentences than those handed down, but made clear that he attributed a deal of significance to the earlier sentencing.

30 The principle to be applied by a judge in such situations was considered by the High Court in R.H. McL. v. R.[6] In the joint judgment of Gleeson, C.J., Gaudron and Callinan, JJ. their Honours said -

"... in the absence of countervailing considerations, the sentences imposed following the first trial should be regarded as the upper limit of the sentence to be imposed following the second trial, otherwise an offender will be seen to have been worse off as a result of having brought a successful appeal against a conviction. The weight to be given to that consideration depends, of course, upon the circumstances of the individual case."[7]

31 McHugh, Gummow and Hayne, JJ. put the positions as follows:

"Ordinarily but not invariably, a successful appellant should not receive a longer sentence after conviction on a re-trial than he or she received at the original trial ... . If the sentencing judge at the re-trial thinks that the original sentence was manifestly inadequate, it is open to that judge in the exercise of the sentencing discretion to give a sentence higher than that imposed on the first occasion. But an exercise of discretion by a sentencing judge that increases the original sentence given to the accused is necessarily rare. That is because such an increase may be perceived, by the public and the accused, as containing a retributive element imposed because the accused had successfully appealed against his or her earlier conviction or sentence. If the raising of a sentence after a successful appeal became common, it might discourage appeals. Such a result would be contrary to the public interest, for an organised society has a vital interest in the proper administration of its criminal justice system. Rights of appeal are an important means of preventing the perpetuation of error in criminal trials."[8]

32 In the present case the sentencing judge was concerned with the need to avoid any legitimate sense of injustice "or a sense of double jeopardy" and it is apparent that he did feel constrained in the exercise of discretion by these considerations. Whilst, he was correct in adopting this approach and did not fall into the error asserted in ground 2, real difficulty was created because, in my view, the sentences handed down in the first trial were grossly inadequate. As the extracts from the judgments in R.H. McL v. R., set out earlier, make clear, a judge at a second trial is neither required, nor would it be correct, to treat as an effective ceiling a manifestly inadequate sentence imposed by an earlier judge for the same offences. Obviously, a second sentencing judge must approach the possibility of the imposition of a greater sentence with care for the reasons mentioned by their Honours, but at the same time avoid compounding or repeating the error earlier made.

33 I have no difficulty in understanding why the judge in the second trial, who may have thought that the sentences earlier handed down were extremely lenient, accepted that considerable weight should be attributed to the fact that they had been imposed for the same conduct in relation to which his discretion had to be exercised. It must also be borne in mind that, on the second trial, the applicant was acquitted on all, save one, of the counts arising out of the occurrences on 23 September. The seriousness with which the sentencing judge in the first trial regarded the separate offences of the respondent on 23 September was undoubtedly influenced by the context as determined by the jury. Those which it was found in that trial that he had committed on 30 December, then had to be considered against the background of that earlier behaviour. It is reasonable to assume that those considerations also affected the second sentencing judge's view of the appropriate sentences to be imposed in the circumstances.

34 The jury in the first trial found that, on 23 September 2002, the respondent had forced his way into the home of the victim and then violently attacked and raped her.

35 They also found that he returned a some months later, entered her home in circumstances that constituted aggravated burglary and again physically attacked her and raped her. On each occasion he subjected her to treatment that evidenced contumelious rejection of her personal dignity and well being.

36 Notwithstanding the considerations that could be seen to militate in favour of mitigation of penalty, and upon which Mr Hill Q.C., who appeared for the respondent in the present proceeding, placed emphasis, the seriousness of this conduct was neither reflected in the individual sentences imposed nor in the total effective sentence handed down by the sentencing judge.

37 The individual sentences imposed in the first trial for the offences in relation to which the respondent was convicted on the second, accordingly, could not properly provide any assistance to the later sentencing judge in the determination of an appropriate sentence for the offences before her.

38 Considered in relation to the task confronting the second sentencing judge, the jury had found that the respondent, in circumstances of some uncertainty, caused injury to V on 23 September and that, whilst present in her house on 30 December, he attacked and raped her. Whilst that conduct could not be viewed against the background of earlier acts of rape and the findings that, on each occasion, he had entered the premises in circumstances that constituted the commission of the offence of aggravated burglary, it was nevertheless very serious and clearly required the imposition of sentences that reflected that consideration.

39 There were, as Mr Hill pointed out, matters to be taken into account in mitigation of penalty. They included:

(a) The applicant's personal background. He was aged 50 years, with no prior criminal history and had led a law abiding life as an honest and successful businessman.

(b) There was, his Honour found, "no real likelihood of [his] re-offending "as the conduct involved was out of character".

(c) The fact that he had, through no fault of his own, been subjected to a miscarriage of justice that required a second trial at which he was acquitted of charges upon which he had been earlier convicted.

" ... I refer in particular to the fact that the unfortunate need for an appeal and the re-trial has mean even greater delay in bringing this matter to conclusion. You have been subjected now to two trials and an appeal. You have been in gaol, out of gaol and now back in gaol."

40 Whilst those matters were significant and proper weight had to be given to them, it had to be borne in mind that the treatment of V by the respondent was violent and intentionally humiliating. His Honour found that:

" ... inside the confines of [his] own house or [his] own home and inside the confines of the relationship that [he] had with V, [the respondent] possessed a domineering, an arrogant and superior attitude to her and indeed to women generally, which blurred the boundaries when it came to, what [he] perceived, as a licence to use a degree of violence and to use [his] physical prowess to impose [his] will sexually, ... ."

The impact upon V, as described in her victim impact statement was profound and understandable.

41 It takes but a moment's reflection to gain some limited sense of the feelings of violation, fear and lingering humiliation expressed by her as a consequence of the events on 30 December in the course of which she thought that she could be killed.

42 Conduct of the kind in which the respondent engaged simply cannot be tolerated. Those who are minded to engage in such behaviour and exercise either their physical power or that arising from their dominant relationship position over vulnerable persons must anticipate the imposition of substantial terms of imprisonment. The courts, when dealing with such 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. Obviously these are not the only considerations to be taken into account in the determination of the appropriate sentence in a given case as that requires attention being given to all of the circumstances relevant to the offence and the offender involved, but they are extremely important. When they cannot be seen to be reflected in the responses of the courts, not only, as I remarked recently in D.P.P. v. Toomey[9], does the individual victim justifiably feel betrayed and devalued, but the criminal justice system itself fails to achieve its objectives.

43 Applying the principles set out in R. v. Clarke[10], and particularly having regard to the concept of double jeopardy, I consider that the sentences imposed upon the respondent in the present case fell so far below those which were required in the proper exercise of sentencing discretion that the intervention of this Court is necessary.

44 I would allow this appeal in part, set aside the sentences imposed on counts 6, 7, 8, 9 and 10 in the court below and substitute the following sentences:

On Count 6 - 4 years' imprisonment

On Court 7 - 1 year 6 months' imprisonment

On Count 8 - 4 years' imprisonment

On Count 9 - 4 years' imprisonment

On Count 10 - 4 years' imprisonment

45 I would order that six months of each of counts 7, 8, 9 and 10 be served cumulatively upon each other and upon the sentence imposed on count 6. I would otherwise confirm the conviction and fine imposed on count 2. This would create a total effective sentence of six years imprisonment in respect of which I would fix a non-parole period of four years and six months.

46 I also agree that the appeal should be allowed and the respondent should be re-sentenced as his Honour Justice Vincent proposes.

[1] There was no furniture in the Keys Street house at that time.

[2] This evidence was accepted by the jury at a trial of the applicant in May 2004 - the verdict was later successfully appealed as emerges in this judgment.

[3] The count numbers relate to the presentment upon which he was convicted in December 2005 and which provides the subject of the present application.

[4] There was evidence suggesting that this may have been present for a period before 23 September.

[5] The counts set out in the left hand column were those in respect of which he was then presented. Those set out in the right hand column were the corresponding counts in the second trial and relate to the same offences.

[6] R.H. McL v. R. [2000] HCA 46; (2000) 203 CLR 452.

[7] R.H. McL v. R. [2000] HCA 46; (2000) 203 CLR 452 at 459.

[8] R.H. McL v. R. [2000] HCA 46; (2000) 203 CLR 452 at 476.

[9] [2006] VSCA 90.

[10] [1996] VICSC 30; [1996] 2 VR 520 at 522.