Gadd v The Queen [2012] VSCA 267

2 The applicant now seeks leave to appeal against sentence. In my opinion, leave to appeal must be refused. My reasons are as follows.

3 The application has been brought on urgently before a bench of two, rather than being considered by a single judge in the usual way. That has occurred because there was a lengthy period of presentence detention and the applicant's earliest date of eligibility for release on parole is 23 November 2012. Counsel and the Court of Appeal registry are to be commended for ensuring that the matter was brought on as early as practicable.

4 I wish to say at the outset that the applicant was represented with great skill and care by counsel, both on the plea and in argument today. All of the matters on which reliance could properly be placed were raised for consideration by the sentencing judge, and their significance has again been emphasised for this Court. It is of particular assistance to this Court to have trial counsel appearing on an application for leave to appeal, because he is in a position to inform us from his own knowledge as to exactly what went on at first instance and, of course, to draw on the arguments which he made on the plea in support of the application for leave to appeal.

5 The circumstances of the offending are set out in the Crown's written case. They are not in dispute. The relevant paragraphs reflect the Crown summary presented to the sentencing judge, on the basis of which the plea was conducted:

Javid Enoch Gadd (the 'applicant') was 20 years of age at the time of the offending.

The complainant ('T') was 14 years and 8 months at the time of the offence.

On 8 July 2011, T travelled by bus to Mildura. Travelling with her was her friend 'J' (aged 15) and J's sister, 'N' (aged 17).

From 8 July to 15 July 2011, the three girls stayed in Mildura with 'R', the aunt of J and N, in her unit. Also living in the unit was R's son 'W' (aged 12) and R's niece. The applicant was also present during this period, with his girlfriend ('G').

The offence

The evening of 14 July 2011 was T's last night in Mildura. The plan was for the girls to leave the following morning on the 7.30 a.m. bus. As the bus was leaving early, the three girls (T, J and N) decided to stay awake all night. At some stage, G went to sleep in her bedroom and R went to sleep on the couch. The three girls, W and the applicant remained awake all night. During this time the complainant consumed 1 ½ cans of Jim Beam.

The following morning, at about 6 a.m. T, J and N packed their bags in W's room. The applicant stood in the doorway. He told the complainant to have a shower to remove the smell of alcohol from the previous night's drinking. The applicant asked N if she could get some smokes for him. N went to the lounge to get one.

The applicant grabbed the complainant's arm and took her to the bathroom. He showed her how to turn on the shower and then left the room. As she was getting undressed he returned to the bathroom with a knife that was used as a locking mechanism for the bathroom door. He put the knife in the space at the top of the door to lock it. The complainant was wearing tracksuit bottoms and her bra.

The applicant went to the complainant and began pulling down her pants and underwear. The complainant indicated to the applicant her reluctance to have sex. He told her to 'Shoosh' and said, 'It's ok, it's alright'. The applicant then pulled down his pants and underwear.

The applicant put his hands on the complainant's shoulders. As he had the complainant pressed against the wall he penetrated her vagina with his penis (charge 1 - sexual penetration of a child under 16).

Unable to find the complainant and the applicant, N and R knocked on the bathroom door, calling out the complainant's name. The applicant put on his underwear and tracksuit pants and grabbed his jeans and climbed out the bathroom window. He put his jeans on outside and then walked away from the unit.

The complainant got dressed then left through the bathroom door. G had woken up and yelled at the complainant, pushing and punching her.

The complainant told N that the applicant had asked her to have a shower before she got on the bus. She said she went to have a shower and was getting undressed when the applicant came in, pulled her pants down and had sex.

The complainant, N, J, and R were picked up by a man who took them to the bus station. The complainant and J got on the bus. N decided to remain in Mildura.

The complainant stayed with her father over the weekend and returned to her mother on 17 July 2011. She told her mother what had happened in Mildura and her mother called Mildura Police to report the matter.

6 There is a single ground of appeal, namely, that the sentence imposed was manifestly excessive. Three particular matters are relied on to make good that ground. First, it is said that the judge gave insufficient weight to the applicant's youth. The applicant was 20 at the time of the offending and 21 at the time of sentence. Secondly, it is said that the judge erred in finding that the offending was 'a serious example of the offence'. Thirdly, it is contended that his Honour placed undue emphasis on the applicant's prior criminal history.

7 The proposition that the sentence is manifestly excessive is, as the Court has repeatedly said, a difficult proposition to make good. It involves establishing that the sentence arrived at was wholly outside the available range or, as we have also said, not reasonably open to the sentencing judge in the circumstances of the case.[1] Notwithstanding the cogency of the arguments advanced on behalf of the applicant, I am not persuaded that that contention is reasonably arguable. Leave to appeal must therefore be refused.

8 The matters which lead to that conclusion were set out in the Crown's written case which points out, correctly, that factors personal to the applicant had to be balanced against other applicable sentencing factors, as follows:

• the age of the complainant at the time - 14 years;
• the age difference between the applicant and the complainant;
• the vulnerability of the complainant and the elements of exploitation and coercion present in the offending;
• the adverse effect of the offending on the complainant and her mother as detailed in their victim impact statements;
• the need for the law regulating sexual offences involving minors to protect them from those who would exploit them and from themselves;[2]
• the need for sentences imposed to adequately reflect considerations of just punishment, denunciation, general deterrence and community protection; and
• the applicant's prior criminal history evincing an attitude of disobedience to the law, and indicating some, albeit limited, weight needed to be attached to specific deterrence.

9 It is the function of sentencing judges in our system to weigh the particular circumstances of the offence, and of the offender, and to apply the established sentencing principles. It is not said on behalf of the applicant that the judge failed to have regard to relevant matters. Rather, as I have indicated, it is submitted that the sentence arrived at, on the one hand, does not reflect the giving of appropriate weight to the mitigating significance of the applicant's youth and, on the other hand, gives excessive weight to the applicant's prior convictions. In the end, however, there being no contention that the judge made a specific error on any of these matters, the question for this Court is whether it was open to the judge to arrive at the sentence he did if proper weight had been given to all the relevant matters.[3] In my view, it was. The contrary is not reasonably arguable.

10 As counsel accepted, the judge made express reference to the youthfulness of the applicant and said, correctly, that he was 'obliged to place considerable emphasis on rehabilitation in the formulation of sentence'. At the same time, as senior counsel for the Crown has reminded us, the judge concluded that he had to be cautious in his assessment of the applicant's prospects of rehabilitation. Again, it is not suggested that that finding was not open to the judge in the circumstances.

11 What is very striking about the sentence, in my view, is that the nonparole period of 16 months represented only 44 per cent of the head sentence. That is, on any view, an exceptionally low nonparole period. It plainly reflects, in my view, that the judge regarded a substantial period of time under parole supervision as conducive to the applicant's rehabilitation and, hence, as being likely to maximise his prospects of not reoffending. That is, of course, not only in the applicant's interest but very much in the community's interest.

12 The question of whether sufficient weight is given to youth is, as the Court pointed out in R v Wyley, a matter for the sentencing judge, balancing often conflicting considerations concerning the gravity of the offending, the prior record of the offender, the effect on victims and so on.[4] Again, absent specific error, the question will be whether the sentence imposed was reasonably open if proper weight had been given to youth and rehabilitation.

13 So far as the second particular of manifest excess is concerned, it was in my respectful view well open to the judge to describe the offending as a serious example of the offence. It is true that there was not a gross age difference between the applicant and the complainant, and that there were no features such as abuse of authority which can make offending of this kind much more serious. Nevertheless, senior counsel for the Crown was right to say that it was a case which had 'some nasty features'. On the undisputed facts, the applicant locked the door of the bathroom with a knife and then persisted, in the face of the victim's initial reluctance, to have sexual intercourse with her. To that extent, it is right to say that a degree of coercion was exercised.

14 The position would have been quite different had there been no reluctance on behalf of the complainant and her consent had been freely given. As this Court held in Clarkson:

There are exceptional cases - for example, in a relationship between a 15 year old girl and an 18 year old boy - where the consent is, relatively speaking, freely given and genuine and a reflection of genuine affection between the two. In such circumstances, as the cases illustrate, the sentencing court is likely to view the offence as less grave and the offender's culpability as reduced.[5]

15 It was held in Clarkson that consent is not a mitigating factor.[6] The question for a sentencing court, if there is consent, is how the consent came to be given.[7] In the present case, all that the sentencing court knew, on the facts, was that the victim had expressed initial reluctance - that is, indicated to the applicant that she did not want to participate in what he was proposing - but that he had persisted.

16 The third matter concerned whether the judge had misapprehended the significance of the prior convictions and - in the language of the written case - had given them 'undue weight'. Again, it is not suggested that there was any mistake in the description of the facts or in the characterisation of the offending. Accordingly, the only way this Court can discern what weight was given to the convictions is by looking at the sentence arrived at.[8]

17 I see nothing in the sentence to suggest that undue weight was given to the prior convictions. They were, as was discussed in the course of argument, prior convictions for violence; namely, two separate convictions for recklessly causing serious injury, in August and December 2009 respectively. Counsel for the applicant conceded - properly, in my view - that his client's prior conduct did reflect that he had taken the law into his own hands. Indeed, counsel referred to another prior conviction which exhibited the same attitude. Sentencing judges routinely have regard to prior convictions as shedding light on the need for specific deterrence, because prior convictions are capable of being characterised as exhibiting a disregard for the law.[9]

18 His Honour made no such express finding about the applicant's prior convictions. But, in the circumstances of the case, a concern of that kind was well justified. The head sentence of three years, in my respectful view, was well within the available range, given the applicant's prior offending and the objective seriousness of what occurred.

19 Senior counsel for the Crown drew the Court's attention to the October 2011 Sentencing Snapshot for sexual penetration of a child aged between 10 and 16.[10] Though aggregate statistics provide little assistance in deciding what the available range was in a particular case, they do indicate that a sentence of three years is not at all out of the ordinary in a case such as this. The Sentencing Snapshot provides figures for the length of imprisonment term for people sentenced to imprisonment for sexual penetration of a child aged between 10 and 16, for the five years from 2005-06 to 2009-10.[11]

20 The figures demonstrate that, during that period, six people were sentenced to a term of imprisonment of less than one year; 27 people were sentenced to a term of between one and two years; 47 people were sentenced to a term of between two and three years; 32 people were sentenced to a term of between three and four years; 13 people were sentenced to a term of between four and five years; and two people were sentenced to a term of between five and six years.[12] In short, the most common sentence in the period covered was between two and three years and the second most common between three and four years. The median period of imprisonment for this offence was two years and six months, meaning that half of the imprisonment terms were shorter than that and half were longer.[13]

21 In conclusion, I would wish to acknowledge the care and sensitivity with which the judge approached this case. His Honour was alive to, and carefully considered, the significance of the applicant's disrupted and disadvantaged upbringing. His Honour said:

I have received in evidence two psychological reports detailing your personal circumstances and developmental history. I accept that your childhood and developmental years were severely disrupted by abuse and trauma and that you suffer from entrenched personal issues as a result of that. This has in turn led to alcohol and substance abuse which is no doubt one of the main causes of your offending. I have heard evidence from your sister, and a friend and mentor. Both spoke highly of you and were impressive witnesses. I am confident that if you take advantage of the support they offer your prospects for rehabilitation will be improved. I was also shown of your examples of your work as an artist and it is clear that you have considerable ability in that regard.[14]

22 Those matters serve to underline what a difficult sentencing task this was. As I have indicated, his Honour arrived at a sentence which was reasonably open in the circumstances. I would therefore refuse leave to appeal.

1. Application for leave to appeal against sentence is refused.
2. On the joint application of the parties, declare under s 18(7) of the Sentencing Act 1991 (Vic) that the correct period of pre-sentence detention, as at the date of Judge Dean's declaration, was 322 days, and the sentence be amended accordingly.

[1] DPP v Karazisis [2010] VSCA 350; (2010) 206 A Crim R 14, 44 [127].

[2] Clarkson v The Queen [2011] VSCA 157; (2011) 212 A Crim R 72, 90 [64] ('Clarkson').

[3] Pantazis v The Queen [2012] VSCA 160, [240] ('Pantazis').

[4] [2009] VSCA 17, [20]-[22].

[5] [2011] VSCA 157; (2011) 212 A Crim R 72, 75-6 [7].

[8] Pantazis [2012] VSCA 160, [248].

[9] Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465.

[10] Sentencing Advisory Council, Sentencing Snapshot No 114: Sentencing Trends for Sexual Penetration of a Child Aged between 10 and 16 in the Higher Courts of Victoria (October 2011).

[14] DPP v Gadd (Unreported, County Court of Victoria, Judge Dean, 29 August 2012), [12].