R v Burke [2009] VSCA 60

1 This is an appeal against a sentence of three years' imprisonment, of which two years and three months was suspended for a period of three years. The appellant pleaded guilty to one count of assault with intent to rape, contrary to s 40 of the Crimes Act 1958 (Vic).

2 For reasons which follow, we would dismiss the appeal.

3 The offence occurred some time after 7 pm on Saturday, 8 December 2007, on a track that runs roughly north to south between Darebin Creek and Plowman Court, Epping.

4 The appellant was 22 years old at the time. That evening, he had consumed a substantial amount of alcohol. He had been at the home of a friend close to the track. His friend and others had plans to travel to the Melbourne CBD that evening, but the appellant had insufficient money to join them, and instead decided to return home.

5 The victim in this matter (H) was 15 years old. She was a student in year 9. On the evening in question, she was visited at her home by a friend (S), aged 14. At approximately 7:00 pm, H and S decided to go for a walk. They walked a short distance to the track and then walked north along the track. The appellant was then walking south along the track.

6 The appellant and the girls passed each other at about 7:10 pm. The appellant walked a further 10 metres or so, then stopped, turned, and started following the girls. Shortly afterwards, the two girls decided to return home. They turned around and proceeded south along the track towards H's house. They then crossed paths with the appellant for a second time. Once again, he turned around and followed them. S became aware that the appellant was following them, took fright, and ran.

7 H did not, however, realise why S had run off and continued walking. When she heard the appellant's footsteps behind her, she too became frightened and fled. The appellant chased and caught H, grabbed her from behind in a bear hug and pushed her to the ground. H fell to the ground on her back and began screaming. The appellant then straddled H, placed his right hand over her mouth for a few seconds and tried to kiss her, but she managed to push his face away from hers.

8 The appellant then took hold of H's leggings and pulled them down. On his own account, he pulled them down somewhere between 10 and 20 centimetres. The appellant then stood up and ran off.

9 The Crown's summary noted the following statements made by the appellant during his police interview:

• as he was returning from his friend's home he saw a young girl on the track who reminded him of his ex-girlfriend;
• he pushed the girl to the ground and tried to pull her pants down;
• he initially said that he got her pants less than 10 centimetres down, and then later in the interview said he had got them between 15 and 20 centimetres down;
• the girl started screaming. He realised what he was doing and stopped, got up and ran away;
• as he was trying to get her pants off, he could see that she was fearing for her life;
• he was trying to rape her;
• he was unable to explain why he had attacked her, other than to say that she reminded him of his ex-girlfriend.

10 The appellant has no prior convictions. At the time of sentence he lived with his mother, who was aged 52. She is a sales consultant. Some 15 years ago, his father contracted Huntington's disease. His mother suffers from Crohn's disease. His parents separated when he was 11.

11 His formal education effectively finished by Year 8. At about that time, his step-brother committed suicide. This event threw the family into chaos. His step-father declined into alcoholism. The appellant continued to be unsettled in spite of counselling. He was able, nevertheless, to obtain an apprenticeship as a trainee painter and decorator. He subsequently obtained work. He attended the Heidelberg TAFE College to complete his theoretical requirements.

12 To his credit, the appellant was employed until shortly before the offence. After the four years of his apprenticeship, he did sub-contracting work, working long hours on night shift.

13 At the time of the offence, the appellant had just lost his job. Shortly prior to the offence, he had taken some time off to have an operation on his finger. As the learned sentencing judge observed, that may have led to his dismissal.

14 Further, at the time of the offence, the appellant's relationship with his girlfriend had broken down. She had been looking after him and was at risk of losing her job as well. In the interview, the appellant said his life was 'going badly.'

15 The appellant has an intellectual deficiency. Testing revealed a full scale IQ of 67, where 99 per cent of people of his age would do better. It was also noted that his powers for delayed recall were reduced. Bernard Healey, a consultant clinical psychologist, commented in his report, 'Were it not for his considerable adaptive skills, this level of intellect would render him eligible for assistance through Intellectual Disability Services.' In conclusion, Mr Healey described the appellant's intellectual disability as 'significant'. Mr Healey also commented:

It is important for Chris to continue with individual counselling, to assist him with his adjustment within the community, to reinforce his ongoing abstinence from alcohol and generally normal sexual conduct (in the absence of the disinhibiting effects of alcohol).

16 The prosecution's stated position on sentence was as follows:

• general deterrence was a significant sentencing consideration given the nature of the offence, the age of the victim and the secluded location of the offence;
• a custodial sentence was the only disposition open;
• despite the above, in light of the youth of the appellant, his lack of prior convictions, cooperation with police, plea of guilty, good work history, low level of intellectual functioning, a sentence of three years was within the sentencing range;
• assault with intent to rape was a 'serious offence' (as defined in s 3(1) of the Sentencing Act 1991 (Vic) ('Sentencing Act')). Accordingly, if a wholly suspended sentence of imprisonment were sought, the Court would need to be satisfied that such a sentence was appropriate because of the existence of exceptional circumstances and in the interests of justice.

17 Defence counsel emphasised the following points: the appellant's age; the fact that he confessed to police at an early stage, thereby showing remorse; his genuine empathy for his victim; the fact that he had pleaded guilty at the earliest stage; and his work record.

18 The sentencing judge found that the appellant was 'candid and remorseful' in the record of interview. He had 'struggled to explain [the attack] which is obviously out of character'.

19 The judge said that he took the following matters into account:

• the appellant's plea of guilty, which obviated the need for a trial and a very stressful ordeal for the victim;
• the remorse indicated by the appellant during his record of interview and the fact that he accepted responsibility for the attack and demonstrated some empathy with the victim;
• the fact that the appellant was otherwise a person of good character, with no prior convictions, and that the behaviour constituting the attack was a one-off event;
• that the appellant's approximately 30 days in custody after arrest was likely to have had a salutary effect upon him;
• the appellant's demonstrated ability to 'get on with life' and social responsibility despite his difficulties and upbringing;
• the demonstrated support of the appellant's family which augured well for his chances of rehabilitation;
• the psychologist's opinion that there was minimal prospect of the appellant committing offences of a sexual nature again in the future; and
• that such a random type of offence was at the 'sharp end' of anti-social behaviour.

20 In relation to the appellant's intellectual deficiency, the judge said:

I find that your moral culpability is somewhat affected by your limited intellectual capacity. A person of your intellectual functioning, as assessed by Mr Healey in his report, is not the perfect subject for exemplary punishment, with a view to deterring others. And the ends of justice are served by insisting that the gravity of the punishment is proportionate to the gravity of the crime, viewed objectively. An almost fully suspended sentence, to my mind, enables the public to be protected without imposing a heavy punishment upon you, a person whose subjective moral responsibility is somewhat diminished by reason of your intellectual disability. However general and specific deterrence here are not entirely eliminated, I hasten to point out, but must be sensibly moderated in an appropriate sentence. General and specific deterrence are not here, by me, given the same emphasis they might otherwise have been. The extent of the amelioration depends here on a range of factors. I have endeavoured to balance the seriousness of the offence and the need to denunciate such offending, with those matters that go in your favour.[1]

21 This was, with respect, an exemplary analysis.[2] The judge concluded that he ought to suspend 'a vast proportion' of the appellant's sentence, stating:

I do not have to find exceptional circumstances in this case, given what my ultimate sentence was is going to be. I find that a short term of imprisonment is warranted because of the seriousness of [the] offending ... [3]

22 As noted earlier, the judge sentenced the appellant to three years' imprisonment, and suspended two years and three months of that sentence for three years. This left nine months of the sentence to serve. In accordance with s 6AAA of the Sentencing Act, the judge stated that, but for the appellant's plea of guilty, he would have sentenced him to a term of four years' imprisonment, with a non-parole period of two and a half years.[4]

Ground 1 - That the learned sentencing judge erred in failing to properly consider whether exceptional circumstances had been made out so as to allow for the imposition of a wholly suspended sentence and failed to provide reasons in respect of that matter.

23 It was contended for the appellant that a wholly suspended period of imprisonment should have been imposed. The learned sentencing judge had fallen into error because he failed to consider, or make any determination upon, the issue of 'exceptional circumstances' in s 27(2B)(a) of the Sentencing Act. It was further contended that the judge erred in failing to state any reasons for his refusal to make a finding as to 'exceptional circumstances', and for his refusal to make an order wholly suspending the sentence.

24 Section 27 of the Sentencing Act provides:

(1) On sentencing an offender to a term of imprisonment a court may make an order suspending, for a period specified by the court, the whole or a part of the sentence if it is satisfied that it is desirable to do so in the circumstances.

(1A) In considering whether it is desirable in the circumstances to make an order suspending a sentence of imprisonment, a court must have regard to -

(a) the need, considering the nature of the offence, its impact on any victim of the offence and any injury, loss or damage resulting directly from the offence, to ensure that the sentence -

(i) adequately manifests the denunciation by the court of the type of conduct in which the offender engaged; and

(ii) adequately deters the offender or other persons from committing offences of the same or a similar character; and

(iii) reflects the gravity of the offence; and

(b) any previous suspended sentence of imprisonment imposed on the offender and whether the offender breached the order suspending that sentence; and

(c) without limiting paragraph (b), whether the offence was committed during the operational period of a suspended sentence of imprisonment; and

(d) the degree of risk of the offender committing another offence punishable by imprisonment during the operational period of the sentence, if it were to be suspended.

(1B) Nothing in subsection (1A) limits or affects Part 2.

(2) A court may only make an order suspending a sentence of imprisonment if the period of imprisonment imposed, or the aggregate period of imprisonment where the offender is convicted of more than one offence in the proceeding -

(a) does not exceed 3 years in the case of the Supreme Court or the County Court; and

(b) does not exceed 2 years in the case of the Magistrates' Court.

(2A) The period for which the whole or a part of a sentence of imprisonment may be suspended is-

(a) the length of the suspended term of imprisonment; or

(b) another period specified by the court not exceeding 3 years, in the case of the Supreme Court or the County Court, or 2 years, in the case of the Magistrates' Court -

whichever is the longer.

(2B) Despite subsection (1), a court must not make an order suspending the whole of a sentence of imprisonment imposed on an offender for a serious offence unless it is satisfied, after having had regard to the factors specified in subsection (1A), that making such an order is -

(a) appropriate because of the existence of exceptional circumstances; [5] and

(b) in the interests of justice.

(2C) If a court makes an order of a kind referred to in subsection (2B), it must, at the time of imposing the sentence, announce in open court its reasons for so doing and cause those reasons to be noted in the records of the court.

...

25 It was common ground that the offence of assault with intent to rape was a 'serious offence' for the purposes of s 27(2B). The submission on the plea was that any sentence of imprisonment should be wholly suspended. To that end, in view of s 27 (2B), defence counsel addressed the question of 'exceptional circumstances'.

26 But the judge was not persuaded that the sentence should be wholly suspended. As noted earlier, he concluded that 'a short term of imprisonment is warranted because of the seriousness of this offending.'

27 As a result, his Honour was not required to embark upon a consideration of 'exceptional circumstances'. That question did not arise unless the judge was contemplating an order suspending the whole of the sentence. Then, and only then, would he have had to consider whether the jurisdictional condition - the existence of exceptional circumstances - was satisfied. Nor, therefore, did s 27(2C) - requiring a statement of reasons for an order wholly suspending a sentence - have any application.

Ground 2 - That in the application of s 6AAA of the Sentencing Act the learned sentencing judge imposed a notional sentence that was manifestly excessive, thereby arriving at error in the sentence imposed; and

Ground 3 - That the sentence imposed was manifestly excessive.

But for your plea, I would have considered that an appropriate term of imprisonment would be four years with a non-parole period of two and a half years.[6]

Ground 2 contended that the 'notional' sentence of four years was manifestly excessive. This in turn was said to have 'infected' the sentence which was actually imposed.

30 The submission is misconceived. The 'notional' sentence announced in accordance with s 6AAA is not part of the sentence imposed. No appeal lies in respect of the notional sentence. As s 567(d) of the Crimes Act 1958 (Vic) makes perfectly clear, the appeal court hears an appeal against 'the sentence passed'. Accordingly, the contention in Ground 2 - that the 'notional sentence' would have been manifestly excessive - is unintelligible in this sphere of discourse. It cannot constitute a ground for appeal.

31 The ground of manifest excess falls to be considered in relation to - and only to - the sentence actually imposed. A complaint about the sentence discount or the notional sentence identified in the s 6AAA statement is a complaint about the weight attributed to one particular sentencing consideration. As with any argument about weight, the question for the appeal court is whether, taking into account all the relevant sentencing considerations, the sentence imposed was within range.

32 Accordingly, we turn to consider Ground 3, which contends that the sentence was manifestly excessive. As Maxwell P said in R v Abbott:[7]

[T]he ground of manifest excess will only succeed if it can be shown that no reasonable sentencing judge could have imposed this sentence on this offender for this offence in these circumstances. That is a stringent requirement, difficult to satisfy. It reflects the oft-repeated policy that sentencing is for judges and magistrates at first instance. Sentencing is not the task of appellate courts, except where clear error is shown. Where the ground of appeal is manifest excess, error will only be shown where it can be demonstrated that the sentence is obviously wrong in the sense that I have described, that is, it is a sentence which no reasonable judge could have imposed in the circumstances.

33 The reasons for sentence are summarised above. His Honour addressed all of the relevant considerations with great care. In our view, the sentence imposed was within the range reasonably open to the judge in these circumstances.

[1] The Queen v Christopher Burke [2008] (Unreported, His Honour Judge Gucciardo, 22 July 2008, County Court of Victoria at Melbourne, Criminal Division), [15].

[2] Cf DPP v Lovett [2008] VSCA 262, [37]-[38].

[3] The Queen v Christopher Burke [2008] (Unreported, His Honour Judge Gucciardo, 22 July 2008, County Court of Victoria at Melbourne, Criminal Division), [25].

[6] The Queen v Christopher Burke [2008] (Unreported, His Honour Judge Gucciardo, 22 July 2008, County Court of Victoria at Melbourne, Criminal Division), [26].

[7] [2007] VSCA 32, [14].