Hayden Samuels (a pseudonym) v The Queen [2018] VSCA 251

1 The applicant, Hayden Samuels ('Samuels')[1] applies for leave to appeal against sentence.[2] The sole proposed ground of appeal is manifest excess.

2 Samuels was convicted, after trial by jury, of two charges of rape and one charge of making a threat to kill. He was sentenced in the County Court on 30 May 2018 to a total effective sentence of 10 years and six months' imprisonment.

Rape [Crimes Act 1958 s 38]

Rape [Crimes Act 1958 s 38]

Make a threat to kill [Crimes Act 1958 s 20]

Declaration that the applicant is sentenced as a serious sexual offender pursuant to s 6F of the Sentencing Act 1991 in respect of charge 5.

4 The victim was Samuel's wife of many years. The offences all occurred in 2015 at their family home in Taylors Hill. The victim was 46 years old and Samuels was 50 years old.

5 Samuels and the victim married in 1996 and have two children, a daughter and a son who were aged 18 and 14-15 at the time of the offending. The family emigrated from Egypt to Australia in 2009. They practise the Coptic Christian Orthodox faith and are involved with the local Coptic community.

6 The rape offences involved penile - anal penetration.

7 The rape the subject of charge 3 occurred in September 2015. Samuels slapped and pushed the victim and then forcefully penetrated her anus with his penis. The victim protested and pleaded with Samuels to stop, but he continued until he ejaculated.

The evidence discloses that Charge 3 involved [the victim] protesting and pleading with you to stop. She was crying throughout the forced anal penetration that ensued and begging you to stop. She was in a distressed condition once she emerged from the bedroom. Your daughter had overheard her mother scream 'stop, stop, please stop', heard the banging from the bedroom and then received a timely complaint within minutes and also saw signs of recent injury.[3]

9 Their daughter, having heard the screaming from the bedroom, followed the victim into the bathroom where she saw red marks on the victim's thighs and buttocks. The victim then then told her that Samuels had raped her.

10 The rape the subject of charge 4 occurred in November 2015. Samuels pushed the victim, pulled her hair and slapped her and then forcefully penetrated her anus with his penis. The victim was crying and protesting, but Samuels put his hand over her mouth to silence her.

11 The victim suffered an anal injury as a result of the rape and consulted her doctor, Dr Eiman Al Raheb, on 25 November 2015. She told Dr Al Raheb that Samuels had anally raped her and reported other physical and emotional abuse. Dr Al Raheb examined the victim and found a tear in her anus, which she said was consistent with trauma to this area. Dr Al Raheb also referred the victim to a psychologist as she had reported symptoms consistent with depression.

12 Charge 5 related to a threat to kill made by Samuels in November 2015. Samuels became angry when he heard the victim's doctor had referred her to counselling. He told the victim that if she saw a counsellor he would kill her and tell everyone that she was mentally unstable and had committed suicide. The victim believed he was capable of carrying out the threat and consequently did not attend counselling.

13 In January 2016, the victim and Samuels went on a cruise with their children and members of their extended family. Upon returning to Australia, the victim ended the relationship and went to the police.

14 There was evidence of uncharged acts of further sexual violence (including rape) that occurred during the marriage but the judge determined there was no need for him to act on that material.[4]

15 Samuels pleaded not guilty to all five charges on the indictment.[5] At trial, Samuels gave evidence and denied the alleged offences. He stated that the marriage had essentially been happy. He denied having ever penetrated the victim's anus with his penis, which directly contradicted a position taken by his counsel, who put to the victim in cross-examination that she and Samuels had had consensual anal sex. Samuels stated that it was the victim who had wanted to have anal sex but that he had declined and also suggested that it was physically impossible for him to have anal sex. The judge later described Samuels's evidence as 'disastrous'.[6]

16 The jury convicted Samuels of charges 3, 4 and 5.

17 The judge characterised the offending as 'extremely serious'[7] and considered that it was aggravated by the following factors:

(1) The victim was Samuels's wife and he raped her in her own home.[8]

(2) In committing both rapes, Samuels exercised dominion over the victim's body by using physical force and ignoring her evident distress.[9]

(3) Both rapes caused the victim pain and left her with injuries.[10]

(4) Samuels knew the victim had a very strong aversion to anal sex and considered it contrary to her Coptic Christian religious beliefs.[11]

(5) The offending had had a 'profound and continuing' adverse impact on the victim and on their daughter, causing them 'very significant damage', including making the victim feel ashamed, humiliated and frightened.[12]

18 The judge commented upon the features of the offending that rendered it extremely serious:

[A]s to the two rapes, they were, in my view, very serious sexual offences committed upon a woman. That woman was your wife. She was raped in her home. You probably had a duty or a moral obligation at least to protect her. Instead you chose to rape her. You knew that she was not consenting and I am satisfied of that beyond reasonable doubt. So two charges of anal rape in her own home, each with force, each in the face of her pleas and protests and in the face of her crying. Completed acts of anal penetration to ejaculation. Signs of recent injury on one occasion, an anal injury on the other occasion and pain on each. One occurring when your own daughter was within the house. An act on each occasion which you knew very well was abhorrent to her. The threat to kill was also extremely serious. It was a threat to kill and it was obviously designed to cease her contact with a doctor or counsellor.[13]

19 The judge considered that there were 'very few' mitigating factors, [14] namely:

(1) Samuels had no prior criminal convictions[15] and a strong work record[16] and the offences were out of character.[17]

(2) Samuels's mental health had deteriorated as a reaction to the process of being charged and separated from his family.[18] His Honour accepted that this would increase his custodial burden and, to that extent, the 5th limb of Verdins should be given 'some modest weight'.[19]

(3) Samuels had reasonable prospects of rehabilitation.[20] However, the judge considered that Samuels presented a risk of reoffending against future intimate partners.[21] He commented that the level of risk of reoffending was difficult to assess and would hopefully be reduced by treatment.[22]

20 The judge noted that Samuels was to be sentenced under the serious offender provisions of the Sentencing Act in respect of charge 5.[23] This was so because Samuels was convicted of two sexual offences and thus the Court was obliged to regard the protection of the community from the offender as the principal purpose for which the sentence was to be imposed with respect to any additional sexual offence or violence offence.[24] However, his Honour did not pass a disproportionate sentence, nor was one sought by the prosecution.[25]

21 The judge then considered current sentencing practices.[26] His Honour noted that, following the decision in Dalgliesh,[27] these are a relevant - but not controlling - factor to be taken into account.[28]

22 The judge considered the decision in Johns v The Queen,[29] to which the prosecution had referred. That case also involved marital rape in circumstances where a husband exercised dominion over his wife; 'treating his wife as property'.[30] The offending involved six counts of rape committed over a 10-year period. The Court of Appeal denounced the offending[31] and imposed a total effective sentence of 11 years three months' imprisonment with a non-parole period of eight years. However, his Honour acknowledged the limitations in looking at other cases.[32] He also noted that Johns predated Dalgliesh.[33]

23 The judge also reviewed Sentencing Advisory Council statistical data and the Judicial College of Victoria overviews for both offences.[34] He noted that sentences of seven years and above were imposed in 'a not insignificant proportion of rape offences'.[35] His Honour commented that most matters coming to the County Court, and thus reflected in those statistics, were ones in which a guilty plea had been entered.[36] By contrast, he noted that Samuels had denied the offending and had not shown remorse.[37] Consequently, a number of mitigating factors that arise in other cases (including the utility of an early plea of guilty, the presence of remorse, and so on) could not be applied to Samuels.[38]

24 The judge placed considerable reliance on the need for specific deterrence. He said:

I need to deter you from offending in the future. You must be deterred. You must be dissuaded from ever contemplating committing these sorts of crimes in the years ahead. You present a risk and as I have said, it is impossible for me to quantify it. But given your age, it is reasonable to think that you will seek out some form of intimate relationship in the future. You must understand that an intimate partner is not your property. It is not your right to force your sexual wishes upon another. You must be deterred in the future.[39]

25 His Honour determined that 'very substantial terms of imprisonment' were warranted on each charge.[40]

26 Samuels seeks leave to appeal against sentence on the ground that the sentences imposed on each of the individual counts, and the order for cumulation of the sentence imposed on charge 4, is excessive.

27 Samuels contends that although the judge made reference to current sentencing practices, his Honour gave them 'little if any weight'.

28 Samuels relies upon the Sentencing Advisory Council data, which shows that a sentence of eight years or more was imposed for rape in about 15% - 17% of cases between 2011 - 2012 and 2015 - 2016. Samuels submits that this places the sentence imposed against him at the 'very upper end' of the range. He argues that although his offending was serious, it was not sufficiently so to fall within the upper end of the range.

29 Samuels also states that the order for cumulation imposed on charge 4 upon the sentence imposed on charge 3 yields a total effective sentence that is higher than that imposed in about 13% - 17% of cases. He submits that this is inappropriate and manifestly excessive.

30 As mentioned above,[41] the judge commented that the statistical data likely reflected that most matters involved a guilty plea or other mitigating factors which were not available to Samuels. Samuels submits that this observation is not confirmed by the data and therefore should not have been relied upon in the exercise of sentencing discretion.

31 Samuels refers to Johns. Samuels states that the total effective sentence imposed in Johns is 'very similar' to that imposed against him. He suggests that the offending in Johns was 'more serious' than his own. He therefore submits that the sentence imposed against him is inconsistent with current sentencing practices.

32 Samuels also raises the judge's comment that Johns predated Dalgliesh, which he submits conveys an incorrect assumption that a more lenient sentence was imposed in Johns than would now be considered appropriate. In light of Dalgliesh, Samuels acknowledges that a court can, in an appropriate case, depart from current sentencing practices. However, he submits such departures must be expressly articulated and explained otherwise Dalgliesh risks being used as a vehicle for unjustified inconsistencies in sentencing which would be contrary to the rule of law and the need for consistency in sentencing.[42]

33 Samuels submits that, although the High Court in Dalgliesh questioned excessive reliance upon current sentencing practices for rape, those practices have yet to be denounced as generally inadequate and should therefore not be disregarded.

34 Samuels also submits that the individual sentence for charge 5 (making a threat to kill) is manifestly excessive. He notes that the sentencing statistics show that 'at least half' of the sentences imposed for this offence between 2009 - 2010 and 2013 - 2014 were non-custodial. He submits that his offending was mid-range as it did not involve a weapon.[43] He argues that a more moderate sentence should have been imposed and, in accordance with the principle of totality, a shorter period of cumulation should have applied.

35 In my view, leave to appeal against sentence should not be granted. I do not consider that the proposed ground of appeal of manifest excess is reasonably arguable.

36 The ground of manifest excess is notoriously difficult to establish. To succeed on this ground, Samuels must show that the sentences imposed were wholly outside of the range of sentences available and therefore not 'reasonably open' to the sentencing judge.[44] The excess must be 'so far outside the range of a reasonable discretionary judgment as to itself bespeak error'.[45] The ground will only succeed if the appellate court considers that the sentence is 'unreasonable or plainly unjust'.[46]

To observe that a sentence is 'very heavy' when compared with other sentences is not, without more, to conclude that it exceeded the bounds of the sentencer's discretion.[47]

38 It is clear that the stringent threshold to establish manifest excess is not easily met.

39 The sentences imposed against Samuels in respect of the rape charges are very stern. However, the offending was 'extremely serious'[48] and, as the judge acknowledged, there has been a recent shift towards sterner sentencing for rape and other sexual offences. This is a conscious decision taken by the courts to reflect the seriousness of domestic violence and sexual crimes committed against women in Victoria.

Undoubtedly these three charges involved very serious offending with the sizeable impacts spoken of. There are a great many cases in the Court of Appeal speaking as to the inherent seriousness of these sorts of crimes. The Court of Appeal has spoken loudly, frequently and for that matter, recently as to the seriousness of sexual crimes committed upon women, of the high rate of domestic violence in this State. There is nothing mitigatory in these acts occurring in the course of a relationship.[49]

41 The observations were repeated in the context of considering the importance of general deterrence in this case:

By general deterrence, I mean this court's obligation to send a loud and clear message to other people in the community that offending such as yours will simply not be tolerated. Repeatedly our highest court in this State, the Court of Appeal, has spoken of the seriousness of sexual crimes committed upon women.[50]

42 This Court recently upheld a sentence of eight years for a single charge of rape where the offender stood to be sentenced as a serious sex offender in respect of earlier charges.[51] That a sentence is stern does not alone indicate the necessary error to establish manifest excess, nor does it indicate that the sentencing judge has not had proper regard to current sentencing practices.

43 Here, not only was the offending extremely serious but there was a complete absence of remorse and a need for specific, as well as general, deterrence in the context of protecting the community from a serious sex offender in respect of charge 5.

44 Samuels does not argue that the judge failed to consider current sentencing practices but that he did not give them adequate weight. He also argues that if the judge intended to depart from them he ought to have declared them inadequate. However, his Honour appears to have carefully considered and been informed by current sentencing practices. Furthermore, the difficulties in relying upon sentencing statistics to assess whether a sentence is manifestly excessive are well known.[52] This is the very issue to which the judge referred in his comments outlined above.[53] His Honour was right to emphasise that 'no case is ever identical'.[54]

45 One of the primary difficulties in relying upon statistics is that there 'is a need for caution with respect to statistics where no distinction is drawn between the sentence imposed in respect of a guilty plea and those who contest the charge'.[55] The judge's caution is explained in part by this difficulty.

46 In my view, having regard to the facts and circumstances and the available data regarding current sentencing practices, the sentence of two years imprisonment imposed against Samuels in respect of charge 5 (making threat to kill) is not manifestly excessive nor is the relatively modest cumulation of six months.

47 I consider that the order for cumulation with respect to charge 3 was necessary to reflect the fact that the two offences of rape occurred as distinct and separate episodes. In my view, the total effective sentence and non-parole period are not beyond the appropriate range available to the sentencing judge.

48 I am not persuaded that it is reasonably arguable that the sentences imposed against Samuels went beyond a sound exercise of the sentencing discretion.

[1] To ensure there is no possibility of the identification of the victim of sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the offender.

[2] R v Hayden Samuels (a pseudonym) [2018] VCC 781 ('Reasons').

[5] The charges on the indictment were four charges of rape and one of making a threat to kill.

[15] Ibid [4], [16], [30], [34].

[18] Ibid [27]-[29], [32]-[33].

[20] Ibid [16], [34]-[38], [57].

[24] Sentencing Act 1991 ss 6B and 6D(a). See Matheas v The Queen [2017] VSCA 330 ('Matheas').

[27] Director of Public Prosecutions (Vic) v Dalgliesh [2017] HCA 41; (2017) 349 ALR 37 ('Dalgliesh').

[29] [2016] VSCA 97 ('Johns').

[41] See [23] above.

[42] Sentencing Act 1991 s 1(a).

[43] Samuels notes that these statistics are based on a relatively small number of cases.

[44] Clarkson v The Queen [2011] VSCA 157; (2011) 32 VR 361, 384 [89].

[45] Hanks v The Queen [2011] VSCA 7 [22].

[46] R v Pham [2015] HCA 39; (2015) 256 CLR 550, 568 [56] (Bell and Gageler JJ) ('Pham').

[48] Reasons [14], [35], [50], [61].

[51] Matheas [2017] VSCA 330.

[52] Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520, Hudson v The Queen (2010) 30 VR 610, 616-19 [27]-[37].

[53] See [23] and [30] above.

[55] Matheas [2017] VSCA 330 [36].