R v Brown [2009] VSCA 23

1 On 17 May 2005, the appellant pleaded guilty in the County Court, at Melbourne, to five counts of rape. The offences arose out of separate attacks, in April and September 2002, on two different victims. He was sentenced on 3 June 2005 to a total effective term of eight years and six months' imprisonment. It was ordered, pursuant to s 6E of the Sentencing Act 1991 ('the Act'), that that sentence be served cumulatively upon a sentence of 11 years that he was already undergoing in relation to various offences committed in 2003.

2 Her Honour's order as to cumulation meant that the appellant would serve a total effective sentence of 19 years and six months. Pursuant to s 14 of the Act, she substituted for the non-parole period of nine years (previously fixed in relation to the 11-year head sentence), a new non-parole period in respect of the multiple sentences now to be served of 14 years and six months. She indicated that the new non-parole period would commence on 3 June 2005.

3 The victims of these offences were both sex workers who operated in the St Kilda area. Counts 1 and 2 related to an incident that occurred on 18 April 2002. At about 2.30 am, the appellant sought out and obtained the services of a sex worker, Ms P. After they had agreed on a price, the appellant drove her to a location in Elwood. They both got into the back seat of the vehicle, at which point he grabbed her by the arm and threatened her by putting a pair of scissors to her throat. He demanded oral sex. He then grabbed her by the hair and forced her to put his penis into her mouth (count 1). Thereafter, he penetrated her vagina with his penis (count 2).

4 Counts 3, 4 and 5 related to an event that occurred on 21 September 2002. On that occasion, the appellant again drove to the St Kilda area and obtained the services of another sex worker, Ms S. He then drove to an area in Albert Park. When Ms S demanded that she be paid first, the appellant produced a pair of scissors and held them to her throat. He demanded that she do as she was told, threatening that he would 'stick [the scissors] down her throat' if she did not. Ms S then proceeded to perform oral sex upon him as demanded (count 3). A few moments later, he performed oral sex upon her (count 4). Finally, he penetrated her vagina with his penis (count 5).

5 In both cases, the appellant left a trail which led ultimately to his apprehension.

6 On the first occasion, when Ms P asked him why he had raped her, he told her that it was a 'fetish' of his, but that he would pay her for her services. He said that he had to get money from an automatic teller machine. He showed her his wallet, which had no money in it. She somehow managed to get hold of his driver's licence, which she later gave to the police when she reported the matter.

7 On the second occasion, Ms S's boyfriend, who was with her when she was approached, noted the registration details of the appellant's car as she got inside. These were passed on to the police, shortly after she was raped.

8 The sentencing judge described these offences as very serious, which they plainly were. She noted, as an aggravating feature, the appellant's use of scissors, and his threats of violence, to achieve his sexual gratification. Although no victim impact statements were provided, her Honour concluded, entirely reasonably, that the two women must have been terrified when confronted by the appellant in this way.

9 The sentencing judge identified some mitigating factors. The appellant had pleaded guilty, though somewhat belatedly, thereby saving the community both the time and cost of a trial. In consequence, the victims had been spared the ordeal of giving evidence. In addition, the appellant had readily admitted his guilt when interviewed by the police. There was also a measure of remorse.

10 Turning to the appellant's personal circumstances, her Honour noted that he was 32 years of age when he came to be sentenced. He was married with a nine-year-old daughter. It appeared that he had had an appalling childhood, having been in and out of foster care from the age of four. He had been subjected to repeated physical, emotional and sexual abuse. Both parents had died while he was very young. He had left school at 14. By the time he was 17, he had drifted into alcohol and marijuana abuse. This had later escalated to prescription drugs and amphetamines.

11 The appellant had accumulated a long list of prior convictions. There were 41 in all, involving seven court appearances between 1989 and 1998. However, none of these prior convictions, serious as some of them were, involved offences of a sexual nature.

12 A psychiatric report tendered on behalf of the appellant diagnosed chronic depression, anxiety, and post-traumatic stress disorder. However, as previously indicated, it found some evidence of remorse. It concluded that his prognosis was poor.

13 The appellant was sentenced in relation to the five counts of rape, which are the subject of this appeal, as follows:

Count 4 - six years (five years and six months to be concurrent)

14 As previously indicated, this resulted in a total effective sentence, on these five counts, of eight years and six months.

15 The critical issue in this appeal arises from the fact that the appellant had been sentenced in 2004 to 11 years' imprisonment, after pleading guilty to two counts of rape, one count of aggravated burglary, one count of armed robbery and two counts of being a prohibited person carrying a firearm. These offences were committed in May 2003, and therefore did not count as prior convictions so far as the five counts of rape the subject of this appeal were concerned.

16 The 2003 offences were committed as part of a single episode whereby the appellant, who had been engaged to carry out carpentry work at the home of the complainant, broke into that home at night, masked and armed with a shot gun. He stole a small amount of money, and twice raped the complainant while her young son was present.

17 The appellant was originally sentenced in relation to those 2003 offences to a term of nine years' imprisonment with a non-parole period of seven years. However, in August 2004, the Court of Appeal, in response to a Crown appeal, increased that term of nine years' imprisonment to one of 11 years' imprisonment and fixed a non-parole period of nine years.[1]

18 In his reasons for judgment in that case, Batt JA described the offending as 'serious and appalling', 'chilling' and 'extremely serious'.[2] Vincent JA referred to the fact that there had been a forcible entry into the victim's home at night, and that the offences had involved premeditation, planning and the use of a weapon.[3] The victim had been terrorised, and subjected to an 'indescribable experience of horror'.[4] His Honour said that were it not for the constraints imposed by the principle of double jeopardy, he would have proposed that a longer sentence than that ultimately fixed by the Court.[5] Eames JA described the conduct in question as 'dreadful and calculated', particularly having regard to the use of a disguise and a firearm, as well as the fact that the offences occurred in the presence of a five-year-old child.[6]

19 Returning to the present matters, the sentencing judge was well aware of the fact that these subsequent offences were not to be treated as prior convictions. She correctly, however, regarded them as highly relevant in so far as they bore upon the appellant's prospects of rehabilitation. Although she did not say so, it seems plain that she must have regarded them as also relevant when considering the totality of the appellant's criminality for the purposes of applying ss 6E and 14 of the Act.

20 The plea before her Honour rested largely upon a single proposition. It was submitted on behalf of the appellant that there should be a significant measure of concurrency between any sentences imposed in relation to the five counts of rape, and the term of 11 years imposed by the Court of Appeal in 2004.

21 Counsel reminded her Honour on a number of occasions of the importance of the principle of totality. He submitted that her Honour should exercise great care when sentencing the appellant for these offences having regard to the fact that the appellant was already undergoing a substantial term of imprisonment for the subsequent matters. Plainly, he was referring, at least by implication, to s 6E. That section directs that every term of imprisonment imposed on a serious offender for a relevant offence (of which rape is a primary example) must, unless otherwise directed, be served cumulatively on any uncompleted sentence. However, he submitted, correctly, that notwithstanding s 6E, the principle of totality was still relevant.[7]

22 The Crown did not take issue with the submission that there should be some measure of concurrency between the sentences to be imposed for these five rapes, and the 11 years which the appellant was currently serving. Indeed, the prosecutor supported that submission. He said the following:

Your Honour, if I could just make sort of a global submission in relation to sentence. We say, with respect, that our submission is that it calls for a substantial immediate custodial term. We say that, with respect, it should call for some cumulation in respect of the current head sentence and in relation to the current non-parole period that the accused is presently undergoing.

23 Seeking some clarification of the Crown's position, her Honour replied:

You say accumulate my total, effective, whatever that may be, to some extent on the present sentence.[8]

... We are saying a two-limb situation, your Honour, yes, in relation to whatever you come up with in terms of a total effective sentence it should involve some cumulation in relation to the current matters, both in terms of the head sentence and the non-parole period.[9]

25 Ultimately, and for whatever reason, her Honour rejected the submission that there should be some measure of concurrency between the sentences imposed for these five rapes, and the 11 years that the appellant was already serving. In her sentencing remarks, she referred to Part 2A of the Act. She spoke of the need for general and specific deterrence. She also referred to the need to protect the community as the principal purpose for which sentence was to be imposed, and the fact that she was empowered, if necessary, in order to achieve that purpose, to fix a sentence that was greater than proportionate.

26 Having regard to the basis upon which the plea had been conducted, it might have been thought that her Honour would have explained why she considered that there should be total cumulation between the sentence that she imposed in relation to the five rapes, and the earlier sentence of 11 years. However, she did not do so.

27 Presumably, it was concern about her Honour's failure to explain her reasoning that led Maxwell P to grant leave, pursuant to s 582 of the Crimes Act 1958, to appeal against this sentence.

28 By notice of appeal pursuant to that leave, the appellant now relies upon the following grounds of appeal:

1. The learned sentencing judge erred by failing to consider and/or apply the totality principle in determining:-

1. the extent of cumulation of the present sentence on the sentence imposed by the Court of Appeal on 6 August 2004; and
2. the new single non-parole period pursuant to section 14(1) of the Sentencing Act 1991 (Vic).

2. The individual sentences, the total effective sentence of 8 years and 6 months and the new single non-parole period of 14 years, 6 months are manifestly excessive.

29 Although the appeal is well out of time, the reasons for the delay have been satisfactorily explained. To the extent that an extension of time is required, leave should be granted.

30 The first two limbs of ground two may be dealt with briefly. In our opinion, the individual sentences imposed on each of the five counts of rape were well within range, and cannot be said to be manifestly excessive. So too, within range, was the total effective sentence of eight years and six months.

31 The principles which govern sentencing for rape in this State were set out recently by this Court in Director of Public Prosecutions v Avci.[10] President Maxwell, with whom Buchanan and Redlich JJA agreed, reiterated what had been said by the Full Court in R v Hall as far back as 1994:

[C]ommunity concern about the prevalence and seriousness of rape and like crimes has undoubtedly hardened. And the need for salutary sentences to punish offenders has undoubtedly increased. This change of attitude is reflected in the increase in the maximum sentence that from time to time has been fixed for the crime of rape. Whilst not giving way to public clamour for revenge, the courts in turn are expected to recognise clearly defined and rational community expectations by the sentences that they impose_._[11]

32 As the President noted, Parliament has fixed a maximum of 25 years' imprisonment for rape. This is the highest determinate maximum provided for by the Crimes Act. That, of itself, provides a reflection of the community's abhorrence of this crime. There is a need for salutary sentences to punish those who offend in this way.[12]

33 Sex workers are no less entitled to be protected from rape than anyone else. The victims in this case were both vulnerable. Each was subjected to what must have been a horrifying ordeal. These were cowardly attacks, committed at night against different women on different occasions. There appears to have been some measure of premeditation. Obviously, they warranted severe punishment.

34 Not only can it not be said that the individual sentences on these five counts were excessive, but the orders as to concurrency between them were generous. There were, after all, two completely separate incidents, involving two unrelated and different victims. A greater measure of cumulation would have been entirely warranted, particularly given the fact that the appellant was to be sentenced as a serious sexual offender.

35 Ground one, and the third limb of ground two, are more problematic. The difficulty lies with the order that her Honour made for total cumulation. The net effect of that order is that the appellant is now serving a total effective sentence of 19 years and six months. That sentence expires on 11 November 2022. It is constituted by the term of 11 years' imprisonment imposed by the Court of Appeal on 6 August 2004 (with a period of pre-sentence detention of 443 days) coupled with the eight years and six months imprisonment imposed on 3 June 2005 (with no pre-sentence detention). The non-parole period of 14 years and six months dates from 3 June 2005.[13] Taken together, these are undoubtedly severe penalties.

36 It is regrettable that her Honour did not explain why she considered that there should be total cumulation, even in the face of the Crown's concession that some measure of concurrency was warranted. We would be prepared, if necessary, to say that this failure on her Honour's part amounts to sentencing error sufficient to warrant reconsideration by this Court of all aspects of the sentence imposed.

37 Her Honour's intent with regard to the new non-parole period that she fixed is not altogether clear. On one view, she considered that there should be a gap of five years between the total effective sentence of 19 years and six months, and the new non-parole period of 14 years and six months, which she fixed. On this basis, the appellant would be eligible for parole on 11 November 2017.[14] It is possible that she failed to appreciate that by reason of the different commencement dates of the two sentences that were being cumulated, and the new non-parole period that was being fixed, the appellant would only ever be eligible for a period of parole of just over four years.

38 Although a total effective sentence of 19 years and six months is undeniably a heavy sentence when viewed globally, we are unable to conclude that it was manifestly excessive. The appellant's overall criminality can only be viewed as abhorrent.

39 The position regarding the appellant's earliest possible release date on parole is a different matter. We think that there is substance in his contention that the non-parole period fixed by her Honour, operating as it did from 3 June 2005, but being inextricably linked to a sentence that was imposed in 2004 as well as the sentence passed in June 2005, has produced a technical anomaly as well as an arguably unintended result.

40 We consider that, in the case of this particular appellant, the new non-parole period fixed should be somewhat closer to five years less than the actual head sentence imposed than is presently the case. That would have the effect of realigning the non-parole period, to some degree, with the sentence imposed in 2004 in relation to the subsequent offences.

41 In order to achieve this result, we would allow the appeal. We would make no changes to the individual sentences imposed on the five counts of rape, or the orders for concurrency as between those counts. Nor would we alter the orders as to cumulation leading to a total effective sentence of 19 years and six months in respect of the five counts of rape, and the offences for which the appellant was sentenced in 2004. Indeed, we see no reason to interfere with the non-parole period of 14 years and six months which her Honour fixed pursuant to s 14 of the Act.

42 The problem arises because the new non-parole period was stated to commence on 3 June 2005. That accords with s 17(1) of the Act, which provides that a sentence of imprisonment ordinarily commences on the day that it is imposed.

43 In R v Rich (No 2),[15] the Court of Appeal considered the operation of ss 14 and 17(1) of the Act. The question was whether a judge who imposed a new non-parole period pursuant to s 14 was able to fix as the commencing date of that new period the date of the original order, or only the date of the new order.

44 The Court of Appeal held that a sentencing judge had a choice in this regard. However, when an appeal against sentence to the Court of Appeal succeeded, and the Court of Appeal imposed a new non-parole period, the commencing date of that sentence would ordinarily be the date of the order under appeal.

45 Brooking JA, who wrote the lead judgment, observed that like other provisions of the Act, s 14 had given rise to difficulty. His Honour reviewed the authorities, noting that in some cases the new non-parole period had been declared to operate from the date of the earliest sentence, while in other cases, that was not so.

My present impression is that sentencing judges at first instance, in fixing a new single non-parole period, have in general fixed one intended to commence on the date of their sentence. But in my opinion they are not constrained to do this by s17(1) or for any other reason. No doubt a non-parole period fixed under s11, and a new single non-parole period fixed under s14, is commonly understood to be part of the sentence. Indeed, s11(1) and s11(2) speaks of a non-parole period as part of the sentence. And of course an order under s11 or s14 is a "sentence" for appeal purposes: Crimes Act 1958, s566. But it does not follow from this that a new single non-parole period must be regarded as a "sentence of imprisonment" for the purposes of the provisions of s17(1) of the Sentencing Act, whereby in general a sentence of imprisonment commences on the day it is imposed. Where the requirements of para(a) and para(b) of s14(1) are satisfied, the court must fix a new single non-parole period in respect of all the sentences the offender is to serve or complete. By s14(2) this supersedes the previous non-parole period and must not be such as to render the offender eligible to be released on parole earlier than would have been the case if the further sentence had not been imposed. Leaving aside for the moment the suggested effect of s17(1), there are obviously two ways in which a judge might proceed in fixing the new period under s14. The first is fix the new period by reference to the date of the sentence in respect of which the earlier non-parole period was fixed, that is to say, fix it as a period to run from that date. The second is to fix the new period by reference to the date on which the new sentence is being passed, that is, as running from that date. These two ways of proceeding differ only in form: there is no difference in substance. For whichever way the court proceeds, it is, in fixing the new period, simply determining what total period will have to be served in respect of both sentences before eligibility for parole.

If we were to adopt the view that s17(1) does not enable a non-parole period to be fixed which commences on a date earlier than that on which sentence is passed by the judge fixing it, the outcome in practical terms would be the same, since, as I have said, the difference is one of form only. We would in this case merely fix a different, and much shorter, period, running from a later date, which would give effect to the sentencing judge's intention in fixing the non-parole period. But we need not do this. For in my view s17(1) does not prevent the fixing of a new non-parole period commencing on the date on which the earlier sentence was pronounced. I say this because in my view a new single non-parole period is not a "sentence of imprisonment" within the meaning of s17(1), notwithstanding that the order fixing it forms part of the sentence. The sentence of imprisonment is the custodial sentence: a new non-parole period is merely the period fixed during which there shall be no eligibility for parole ...[16]

47 His Honour added that it was desirable that there should be uniformity of practice in this regard, and that ordinarily all new single non-parole periods should be made to commence on the date on which they were fixed. Winneke P and Charles JA relevantly agreed.

48 The sentencing judge followed that practice in this case. Her Honour is not to be criticised for doing so. Regrettably, however, this may have led her into error in that it resulted in a disconformity between what she seems to have intended, and the result ultimately achieved. In any event, this Court is not constrained by Rich from exercising the power which it undoubtedly has to order that the new non-parole period fixed in this case operates from the date upon which the earlier of the two sentences in time commenced, namely 6 August 2004.

49 We would therefore order that the non-parole period of 14 years and six months which is fixed pursuant to s 14 of the Act should operate from 6 August 2004, that being the date on which the Court of Appeal imposed sentence upon the appellant for the subsequent offences.

50 When it re-sentenced the appellant in 2004, the Court of Appeal ordered that a 443-day period of pre-sentence detention should be declared and taken into account in calculating the appellant's earliest possible release date. That declaration continues to operate and should be taken into account by the correctional authorities when determining the earliest date for the appellant's release.[17] There is no period of pre-sentence detention applicable to the current offences.

51 Backdating the commencement of the non-parole period to reflect the fact that that period covers two quite separate and distinct sentences overcomes, to some degree, the anomaly that has arisen because there was no pre-sentence detention in relation to the five counts of rape (the appellant having been serving a sentence for other offences). On our calculation, the appellant will be eligible for parole in November 2017, which allows for a period of approximately five years' parole, and coincides with the period that her Honour seems to have contemplated.

[1] Director of Public Prosecutions v Brown [2004] VSCA 133; (2004) 10 VR 328.

[7] See, for example, Mill v R (1988) 166 CLR 59; Postiglione v R [1997] HCA 26; (1997) 189 CLR 295 and R v Glennon (No 3) [2005] VSCA 262; (2005) 12 VR 421.

[10] [2008] VSCA 256.

[11] Ibid [7], citing R v Hall (1994) 76 A Crim R 454, 475 (Crockett and Southwell JJ).

[12] Ibid [26]. See generally, Director of Public Prosecutions v FHS [2006] VSCA 120, [42].

[13] A document provided to the Court by the Office of Public Prosecutions states that the Adult Parole Board considers that the appellant will be eligible for release on parole on 7 September 2018.

[14] That being five years short of 11 November 2022, the calculated sentence expiration date.

[15] (2002) 4 VR 155.

[17] R v Stares [2002] VSCA 70; (2002) 4 VR 314.