R v Bullen [2005] VSCA 206 | Case summary | Zoe

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R v Bullen [2005] VSCA 206 | Case summary | Zoe

1 The appellant, who is now aged 21, pleaded guilty in the County Court at Bendigo to three counts of sexual penetration with a child under the age of 16. The maximum custodial penalty for that offence is 10 years' imprisonment. The appellant had previously appeared in the Magistrates' Court at Kyneton on 30th March 2003 on a charge of being in possession of a prohibited weapon. On that occasion he was sentenced to be released upon entering into an undertaking to be of good behaviour. There were no other previous convictions or findings of guilt, but there had been a subsequent matter, involving burglary and theft, in the same period as the offending with which we are concerned, for which the appellant had received a community-based order.

2 After hearing a plea for leniency on his behalf and considering a senior youth training centre suitability assessment, the learned judge sentenced the appellant on 25th February 2005 to two years' imprisonment on each of counts 1 and 2 and three years' imprisonment on count 3. Her Honour directed that the sentences on counts 1 and 2 be served concurrently and that one year of those concurrent sentences be served cumulatively upon the sentence imposed on count 3. That made a total effective sentence of four years' imprisonment, in respect of which a non-parole period of 20 months was fixed. The appellant was not sentenced on count 3 as a serious sexual offender, because he was still under 21. I shall assume, notwithstanding R. v. Jennings[1], that, if he is re-sentenced by this Court, the provisions of Part 2A of the Sentencing Act 1991 will now apply. For reasons that will appear later, that is not an assumption adverse to the appellant, except for the notation that will have to be made in the Court's records pursuant to s.6F.

3 Leave to appeal against sentence was granted by Buchanan, J.A. on 29th July 2005. His Honour observed that this was an unusual case, principally due to the appellant's age, and that it was reasonably arguable that the sentence was manifestly excessive.

4 Before turning to the grounds of appeal, it is desirable to say something more about the three counts. Each count related to the same complainant, a boy aged 12. The appellant was then aged 18. Count 1 charged that, between 1st March and 31st May 2003, the appellant took part in "acts" of sexual penetration with the complainant, in that he introduced his penis into the complainant's mouth. Count 2 charged that, between the same dates, the appellant took part in "acts" of sexual penetration with the complainant, in that the complainant introduced his penis into the appellant's mouth. Count 3 charged that, between 12th and 30th April 2003, the appellant took part in "an act" of sexual penetration with the complainant, in that the complainant introduced his penis into the appellant's anus. On the plea, the prosecutor said that counts 1 and 2 were not representative counts but rolled up counts. That would account for the use of the plural "acts" in their drafting. The difference between representative and rolled up counts was explained by Charles, J.A. in R. v. Jones[2]. The judge mistakenly referred to counts 1 and 2 as representative counts in the course of her sentencing remarks, but that is not an error of which the appellant may complain. The fact that counts 1 and 2 are rolled up counts would nevertheless be relevant to re-sentencing.

5 The full statement of grounds filed pursuant to rule 2.09 of the Supreme Court (Criminal Procedure) Rules 1998 is not very informative. It certainly does not set out the grounds in precise terms as required by sub-rule (4). There are four grounds: first, that the judge "relied on a mistake of fact regarding count 3"; secondly, that her Honour failed to take into account matters which should have been taken into account or gave those matters insufficient weight; thirdly, that she gave excessive weight to factors taken into account; and, fourthly, that the sentence is manifestly excessive. It is only in the outline of submissions for the appellant that one is told the mistake of fact or given particulars of the matters and factors referred to in the second and third grounds.

6 In my opinion, the first ground should be upheld. It will be convenient to explain why that is so before turning to the facts. At the beginning of the sentencing remarks, addressing the appellant, the judge said that count 3 was "one of sexual penetration whereby you introduced your penis into the anus of your victim", but the count, consistently with the complainant's statement, alleged that the complainant introduced his penis into the appellant's anus. On three occasions later in the sentencing remarks, her Honour emphasised count 3. She said that the mitigating factors did not outweigh the nature and gravity of the offences, in particular the offence the subject of count 3; that regard should be had to the totality of the appellant's conduct, especially the subject of count 3; and that the offences, in particular the conduct the subject of count 3, were too serious to warrant anything other than a sentence of imprisonment to be served. The longest sentence was imposed on count 3 and it was the base sentence. That is an example of "mistaking the facts" within the meaning of the authorities.[3] Not every mistake re-opens the sentencing discretion, but this mistake was clearly material. The offence the subject of count 3 was serious enough, but the judge may well have regarded it as being even more serious if a young man of 18 penetrated a child of 12. Be that as it may, as Mr Cain correctly conceded, the discretion is re-opened and we are obliged to consider the case for ourselves.

7 The essential facts may be briefly stated. The appellant and the complainant attended the same secondary school. The appellant had had a relationship with the complainant's sister, who was of an appropriate age. They all belonged to a group of young people of varying ages who socialised and drank alcohol together on numerous occasions during the period of the offending. The complainant's sister boarded at the appellant's home for a while and, during that time, the appellant visited the complainant's home in her company. Other young people were present, including the complainant's twin brother. The appellant occasionally stayed overnight. There was a marked absence of parental supervision.

8 Counts 1 and 2 referred to multiple occasions over a three-month period when the appellant and the complainant engaged in oral sex. Usually that took place in the complainant's bedroom, but one instance of the conduct referred to in those counts occurred at the appellant's home. The offence the subject of count 3 was committed after the appellant and others had returned from a karaoke function. The appellant and the complainant engaged in oral sex in the complainant's room. The appellant then produced a condom and invited the complainant to introduce his penis into the appellant's anus. The complainant did so, but shortly thereafter the condom slipped off and he removed his penis.

9 Turning to the appellant's personal circumstances, his parents separated when he was seven years old and he lived with his father in Kyneton. He attended school until the age of 16, left and then returned. It was at that time that the offences were committed. The appellant has been employed mainly as a pizza chef. He was highly regarded by his employer. The judge accepted that specific deterrence might be given less weight and that the appellant's prospects of rehabilitation were good. Both his parents continue to support him.

10 A psychological evaluation by Dr Simon Kennedy was tendered on the plea. He assessed the appellant as functioning in the low average range of intelligence, which her Honour accepted may have contributed to his failure to appreciate the gravity of his conduct. The appellant presented as a person who had grown up in rather loose circumstances, without substantial supervision, where sexual interactions had been recreational in quality. He had reasonable insight into his own behaviour. There were no particular antisocial attitudes and, importantly, nothing to suggest paedophilia. The appellant's sexual identity was still in formation but was more orientated towards females.

11 The author of the senior youth training centre suitability assessment acknowledged the seriousness of the offences but considered that the appellant had good prospects of rehabilitation. As we have seen, her Honour agreed that that was so. He was of opinion that the appellant was not suitable for an adult prison and would find it very difficult to adapt to a prison environment. The appellant had no previous experience in a custodial setting and would be vulnerable to more experienced prisoners, who would easily intimidate him. The appellant was assessed as suitable for a senior youth training centre order. The author's superior endorsed that assessment.

12 In view of the prosecutor's concession, we invited Mr Howe, in effect, to conduct the appeal as a plea. He emphasised the mitigatory factors available to the appellant. One of them was what counsel described as the peculiar nature of the social grouping in which the offences took place. The mores of that group provided a context for the offences. The appellant was then an immature 18-year-old of low intelligence and the criminality of the offences was less than it might have been by reason of the lack of paedophilic motivation. Counsel relied on Dr Kennedy's report and on the parts of the senior youth training centre suitability assessment to which I have referred.

13 The Court explored with counsel the question whether a non-parole period should be fixed or whether the sentence we impose should be partly suspended. Counsel tendered twelve references which were designed to show the level of support that the appellant enjoys, not only from his family but in the local community. Taken alone, they might point in the direction of a partially suspended sentence, but, as Mr Cain submitted, there are other factors to take into account. One of them is that these offences were committed partly because of a lack of supervision, not only of the appellant but of other young people in the local community. Another is that a partially suspended sentence would place the appellant at the very real risk that, if he breached the sentence, he would be required to serve the entire sentence in prison. In the end, it was the submission of counsel at both ends of the Bar table that a non-parole period would be the preferable option. I agree.

14 In determining the length of the sentence and the non-parole period, we are bound, of course, to take into account circumstances of aggravation as well as the mitigating factors in the appellant's favour. I have referred to some of the mitigating factors. There are others. I need not recite them all. They include his plea of guilty, limited prior history and youth. On the other hand, the appellant knew that he was engaging in criminal offences with a minor. Whether or not there was a degree of manipulation, plainly the appellant took advantage of this young boy, whose victim impact statement shows that he has suffered adverse consequences. All those matters must be taken into account in deciding an appropriate disposition. In particular, there is no gainsaying the seriousness of the offences, given the victim's age and the fact that the appellant was six years older.

15 The juvenile environment in which the offences took place is, to my mind, an important consideration, together with the fact that the appellant is unlikely to re-offend. He has since matured, moderated his use of alcohol and given up experimenting with recreational drugs. The level of support that he will enjoy in the community when he is released is an important factor. The prolonged incarceration of a vulnerable young man in an adult prison will not promote his rehabilitation, in which the State, and not just the appellant, has an interest. We should fashion a sentence that will not impede, or set back, the rehabilitation that the appellant has achieved. I agree with the judge that that sentence should include a shorter than usual non-parole period, or, to put the matter in positive terms, an extended period of supervision on parole.

16 In the particular circumstances of this case, the discretion being reopened, I would re-sentence the appellant to two years' imprisonment on each count and direct, pursuant to s.6E of the Sentencing Act, that the sentence imposed on count 3 be served concurrently with the sentences imposed on the other counts. That makes a total effective sentence of two years' imprisonment, in respect of which, if their Honours agree, I would fix a non-parole period of eight months.