R v Empey [2004] VSCA 243

9. During the plea various victim impact statements were tendered, as also were reports from Dr Lester Walton, Mr Ian Joblin and Ms Marjan Geertsema. Four witnesses were called to give character evidence on behalf of the appellant.

12. On 6 November the judge sentenced the appellant on the count of rape to 14 years' and on the count of causing serious injury intentionally to 10 years' imprisonment. His Honour directed that two years of the sentence imposed on the second count be made cumulative on the first. The total effective sentence was 16 years' imprisonment and the judge fixed a non-parole period of 12 years.

15. On 30 July the appellant was granted leave to appeal against sentence pursuant to s.582 of the Crimes Act 1958. He now appeals on the grounds that, first, the judge failed to give any or any sufficient weight to his pleas of guilty, and the circumstances and consequences of those pleas; secondly, that the judge failed to give any or any sufficient weight to the principle of totality; and thirdly, on the ground that the individual sentences, the total effective sentence and non-parole period are all manifestly excessive in all the circumstances. The appellant's submissions make it plain that the real issue in the appeal is manifest excess, ground 1 being treated as a particular of ground 3 and ground 2 not being argued except as an aspect of manifest excess.

18. It is necessary therefore to set out the facts giving rise to these offences at some length. They are taken largely from the prosecutor's opening at the plea, which was reduced to writing, and which was not in contest in any respect. The victim of these offences was a woman then aged 30. On the night of 26 July 2002 the company that employed both the appellant and the victim held an awards function at the Carlton Crest Hotel in Queens Road. The appellant and the victim were on separate but adjoining tables, and both were drinking. After the formal part of the function finished there was dancing, and the appellant and the victim danced together for some time. When the function ended, they were seen together in a bar near the hotel foyer, the last sighting of them there being at around 1.30 a.m. The indications from blood alcohol tests taken well after the event were that the appellant's blood alcohol level at around 3 a.m. was at or around .15%, and the victim's around .2%.

21. At approximately 3 a.m., a number of residents in a multi-storey apartment block in Wadey Street, Southbank were woken by what they described variously as a sound like a child crying, a woman screaming or the loud screaming and crying of a frightened, panicking female. There were short periods of silence between these sounds. These cries and screams were coming from the victim, who was being assaulted by the appellant in a recessed area of the stairs at the front of the building. One witness, Mark Donaldson, and his girlfriend were sleeping on the upstairs level of their ground level apartment. They were woken by the screams, ran to the front window of the apartment, and saw the appellant standing over the victim on the stairs to Donaldson's apartment. The appellant was "bent over forwards, with his hand out in front of him. He appeared to be pushing downwards with a lot of force, his whole body moving up and down". Donaldson contacted the concierge, who rang the police. Donaldson returned to his window, and saw the appellant still performing the same action as before. He saw the appellant stand up and look around, and he then walked out on to the footpath and looked up and down the street, before returning to Donaldson's stairs. The appellant was then observed to place his hands on the brickwork and tiling on either side of the stairs, and commenced to violently stomp in an up and down motion, using his right foot. Donaldson immediately had his girlfriend contact the police. He then saw the appellant kick at something in the stairwell, "in a very violent manner". Each time the appellant kicked, a loud thumping noise could be heard. Donaldson's observations were consistent with a forceful and repeated stomping and kicking to the head of the victim. Donaldson then saw the appellant bend down again, and it was at about this time that the first police arrived at the scene.

24. The ferocity of the attack by the accused is demonstrated during the tape-recorded telephone call Donaldson's girlfriend made to the police, during which Donaldson can be heard in the background saying, "Someone's being murdered, they're stomping on a ... a guy's stomping on this girl's head, he's beating her to death".

27. Police arrived at the scene at approximately 3.13 a.m. Senior Constable Fielding observed the appellant kneeling on top of the victim, who was lying unconscious on the stairs surrounded by blood. The appellant's shoes were covered in blood. The victim was bleeding from her face and vagina and appeared to be choking on her own blood. Her face was extremely swollen and she was wearing only a singlet top, a pair of ripped underpants on one leg and a boot on her left leg. Senior Constable Fielding ordered the appellant away from the victim, and the appellant said, "I didn't do it. I'm helping her." He then ran from the police, south in Wells Street. Fielding chased the appellant into Miles Street. The appellant stopped and faced Fielding with his hands outstretched in a fighting stance. Fielding used capsicum spray to subdue and arrest the appellant, who was extremely aggressive at this time.

30. The appellant's clothes, shoes, hands and wrist were soaked in blood. There was human hair attached to the soles of his shoes. The fly of the appellant's trousers was down when he was arrested.

33. When ambulance officers arrived at the scene, they estimated that there were at least two litres of blood on the landing and steps and on the victim. The victim was unconscious and having trouble breathing. She was in a critical condition due to her blood loss, unrecordable blood pressure and unconscious state. The ambulance officer was of the opinion that the victim would probably die.

36. The appellant remained mute after he was taken to the Melbourne police station. When asked for his name he said he wanted a pen, and having been given a pen, thrust it into his neck, causing a superficial injury which did not require medical treatment. Later, after being asked where he lived, the appellant replied that "I'm going to kill myself. I fucked up big time." At 6.05 a.m., during a welfare check by the police, the appellant said in relation to the victim, "She shouldn't be breathing good air." The appellant was later taken to the homicide squad for an interview. Whilst alone in the interview room, and before he could be interviewed, the appellant removed a fluorescent light globe from the roof, broke it and thrust it into his neck, resulting in serious injuries. The sentencing judge accepted that this was a genuine attempt at suicide.

39. Dr Amanda Wilkin examined the victim at 3.50 a.m. on 27 July 2002 when she was admitted to the Emergency and Trauma Centre of the Alfred Hospital. During the initial trauma assessment, the following injuries were detected: an 8 cm. vertical linear wound on the right side of her face, with clear-cut edges suggestive of an incised wound; the lower half of the victim's right ear was partially amputated, with clear-cut edges again suggestive of an incised wound; and two black eyes, the left with marked swelling and the right with moderate swelling, and the entire face was extremely swollen. Dr Wilkin reported that on arrival the victim's condition was extremely critical and life-threatening, and but for the intervention, death would almost certainly have occurred. The victim was in severe hypovolaemic shock when she arrived at the hospital, having lost two litres of blood, approximately 40% of her blood volume. Aggressive resuscitation with blood, intravenous fluids and drugs was required to regain and stabilise her blood pressure. Dr Wilkin said that there were horrific ano-genital injuries, indicative of forceful penetration. The victim had a large laceration starting at the posterior vaginal wall, closest to the anus, and extending all the way through to the anus and rectum. This was at least five centimetres in depth and approximately eight centimetres in length. The anal sphincter was totally disrupted and there was swelling or bruising surrounding the wound. Dr Wilkin's opinion was that a large rectovaginal tear such as this was not seen with penetration by an object the size of a penis or digit. A larger object, such as a fist, produced this injury, and it was likely that the victim would suffer long-term problems as a result of it, such as problems with faecal incontinence. There was a high risk of infection, as faeces contaminated the tissues and chronic infections might occur. The muscles of the pelvic floor had been disrupted and long-term problems with urinary incontinence, sexual function and childbirth might result.

42. Dr Jefferson Webster, the neurosurgery registrar at the Alfred Hospital, examined the victim's head, face, neck and vertebral column. Dr Webster found evidence of hypovolaemic shock, a lacerated right upper eyelid and abrasion to the lower left eyelid; the victim's left ear was partially amputated with evidence of a bite mark, with human teeth pattern to the lower aspect of the right ear; the brain had sustained an injury more severe than concussion; there was bruising around both eyes and severe generalised facial oedema; there was a fracture to the base of the skull in two separate locations, being above the eye and above the middle ear; and there was mild effacement of grey-white junction, indicative of brain swelling, and a fracture of the right cheekbone and the zygoma was distinct from the lateral orbit wall. Dr Webster opined that the injuries were consistent with blunt trauma to the head and face and the injuries to the ear were consistent with avulsing (tearing force) injury to that area. The moderate closed head injury was associated with base of skull fractures and multiple facial fractures consistent with severe blunt trauma to the head and face. The victim would be left with mild to moderate cognitive memory and personality change and was likely to remain in a period of post-traumatic amnesia, both retrograde and antigrade the assault. The soft tissue injuries sustained to the face and head were consistent with multiple blows with a blunt object with direct and indirect heavy force.

45. The rape of the victim was, as the judge said, particularly violent. Time after time the appellant drove his fist into the victim's vagina. He then walked out on to the footpath, and, not satisfied with what he had already done, returned to the victim and stomped on and repeatedly kicked her head. The victim's injuries were horrific and, without urgent intervention, she would have died within a short time after she was found. His Honour, a judge of very long experience in criminal cases, said of the victim impact statements, in words with which I agree totally -

"The past pain, and the continuing pain of the victim, is patent. I have rarely had to read of such devastation. And the ripples, indeed the waves of pain, extend to members of her family. It is at least some consolation that they have each other, and that the bonds have been strengthened by this traumatic experience. They are a remarkable family. The victim is a remarkable woman. She is showing every sign of trying to minimise the extent of the damage you [the appellant] did to her body and her psyche."

49. Before turning to the appellant's submissions in this Court, I should say something of the matters put on his behalf at the plea. The first witness called to give character evidence for the appellant was his brother, who spoke of the close relationship between the appellant and his father, and how his father's death when the appellant was twelve years old had affected him. He said that the appellant was hardworking, dedicated and generous to his family. He had made arrangements to give the appellant a job upon his release. He also gave evidence that alcohol was a serious problem for the appellant, having been the cause of an incident in Benalla in 1989, and that between that incident and the current offending the appellant had continued to drink.

52. The second witness, Peter Ronald Hahn, said that he was a work colleague of the appellant and had known him since 1998. The appellant had lived with Mr Hahn and his family for two months in 1998. He described the appellant as hardworking and dedicated to his wife and child. He had seen the appellant drinking on occasion but had never seen him drink to the point where this was a problem.

55. Scott James Ritchie gave evidence that he had known the appellant for more than seven years and had played football with him in Mortlake. They also used to go fishing and scuba diving together. Mr Ritchie said that he had seen the appellant intoxicated but had never observed him to be aggressive whilst drunk. He said that this incident was totally out of character.

58. John Leslie Rouvray said that he had known the appellant for thirteen years and that the appellant was a friend of his son. He said the appellant used to stay with his family on a property near Benalla. The appellant used to play football with a club of which Mr Rouvray was secretary. He observed the appellant at club functions and on occasions saw him consume a lot of beer. He had never seen the appellant behave inappropriately. He said the appellant was well respected within the community and that the appellant had been motivated to obtain academic qualifications and pursue a career. In his opinion this behaviour was totally out of character.

61. Dr Lester Walton diagnosed the appellant as suffering from long-term depressive problems, triggered by the death of his father. He said that in his view the appellant had turned to alcohol to attempt to relieve emotional distress, to a point which had become pathological alcohol abuse. In his view the appellant was under a good deal of psychological strain leading up to his commission of the offences, including work pressure, his wife's home-sickness at the time and problems during pregnancy, and a potentially life-threatening condition affecting his child after birth. Dr Walton thought the appellant was appropriately remorseful. He thought he remained at considerable risk of completed suicide.

64. Mr Ian Joblin thought that there were two issues of serious concern with the appellant, the first his depression, and the second the impact of alcohol abuse on his psychological state. Like Dr Walton, however, Mr Joblin was unable to provide any satisfactory explanation for the appellant's actions, which were generally agreed to be incomprehensible.

67. Ms Geertsema, the manager of therapeutic services at Port Phillip prison, reported that the appellant felt intense feelings of shame and guilt in response to his offences, both towards the victim and his own family. He had repeatedly expressed suicidal intent since his incarceration and she regarded his expressions of remorse as genuine.

70. The appellant's father was a bank manager, who died suddenly when he was twelve. Depression has since been a significant part of the appellant's life. His education, work history and relationships history have all been commendable. The appellant completed a marketing course at the RMIT, and by the time of these offences had a good job, a caring wife and the start of a family. The appellant was largely a man of good character, although for a long time he had continued to drink to excess. A number of mitigating factors were in evidence before the judge. The appellant pleaded guilty, having offered to do so at an early stage. There was, of course, little alternative to him entering such a plea, he having been observed by witnesses such as Mr Donaldson in the course of his actions and having been found by police officers still with the victim; but nonetheless his plea saved the victim the ordeal of a committal and trial. There was abundant evidence of remorse, and the judge accepted that the appellant was in a state of considerable stress immediately prior to the events of 27 July. His Honour accepted that prison would be harder for the appellant since he would have to remain in protection. He would thus not have the same chances to work, study and do programs as would a mainstream prisoner.

73. In this Court, Mr Shwartz argued that the sentences imposed were well outside the range of sentences for such offences. He put it that the individual sentences in each case set a new benchmark level for the offences in question. He argued that the events giving rise to the two offences were so closely linked in time that any cumulation should have been of a minimal order. A related argument was that the extent of the cumulation had resulted in a head sentence which was manifestly excessive, which in turn had led the judge, in fixing the non-parole period, to leave an undue disparity between head sentence and non-parole period. Mr Shwartz made prolonged and detailed reference to other decisions of the Court, arguing that there had been no case involving a higher sentence for one count of rape save DPP v. Devaldez[1], and no case involving a higher sentence imposed for intentionally causing serious injury. He argued that the manifestly excessive length of the sentence imposed in respect of the count of rape was such that it was reasonable to assume that the high degree of culpability which attached to the second count had been factored into the sentence imposed in respect of the count of rape. He argued that the judge had failed sufficiently to take into account the plea of guilty, the appellant's overwhelming remorse, his ongoing depressive illness (coupled with his problem with alcohol) and the fact that his sentence would have to be served whilst in protection, each of which matters, so the argument ran, the judge needed to deal with separately. He put it that the fact that the judge described the appellant as a "monster" meant that his Honour had allowed the injuries sustained by the victim to swamp other sentencing considerations, leading to a manifestly excessive sentence. It was argued that the victim's physical injuries, terrible though they were, had not led to any permanent loss of physical capacity. Counsel also submitted that the judge had undervalued or failed to give sufficient allowance for or to sensibly moderate any sentence imposed by not allowing sufficiently or at all for the appellant's pre-existing depressive illness as it affected him in the commission of the offences, or to consider the impact such a condition would have on the serving of any sentence of imprisonment. Finally, it was put that the judge had acknowledged and accepted that the appellant needed continuing treatment whilst in prison, but nonetheless had treated the appellant's resort to alcohol as an aggravating feature of the offence rather than a symptom of his depression.

76. In my opinion all these arguments must be rejected. The actions of the appellant which gave rise to the count of rape are as serious an example of a single instance of that crime as one could imagine. The offence was committed with great force and appalling violence upon a defenceless and vulnerable victim. The appellant's actions lasted for some considerable time and led to horrific injuries. They were life-threatening at the time and will inevitably cause a variety of long-term problems. The appellant's actions have had devastating consequences upon the victim and her immediate family. The sentence imposed for rape is, as Mr Hillman for the Crown pointed out, only 56% of the maximum sentence available. There was a clear demarcation between the events giving rise to the count of rape and those which led to the second count, a second explosion of violence directed at the victim's head. The appellant's actions leading to the count of intentionally causing serious injury were also a most serious example of that crime. The appellant inflicted extremely serious injuries by violently kicking the victim repeatedly as well as stomping on her head. The attack caused brain injury more severe than concussion, two fractures to the skull, the partial amputation of the victim's left ear and human teeth bites to the right ear, and the other serious injuries previously described. There will inevitably be serious lasting effects from these injuries. Again, the sentence imposed was only 50% of the available maximum.

79. 26 The judge plainly took into account all the matters put in mitigation, each of which his Honour expressly mentioned. I entirely agree with the Crown's submission that without the mitigating factors a sentence well in excess of the individual sentences imposed on both counts would have been warranted. Just punishment, denunciation, general and specific deterrence and the protection of the community all warranted sentences heavier than those imposed, if those mitigating factors had not been present. When the judge used the expression "monster", he was quoting the witnesses called to give character evidence. Indeed, the first person to use this word during the plea was the appellant's own brother.

82. The Crown submitted, and I agree, that the appellant had been given a number of warnings, both by his brother and his wife, about the consequences should he choose to continue to drink alcohol and that he chose to ignore those warnings. Furthermore, although there was, as I have said, evidence of remorse, the appellant's actions after having raped the unfortunate victim were the antithesis of remorse. The appellant's subsequent expressions of remorse must at least in part have been related to regret for the situation in which he then found himself, rather than genuine remorse for what he had done to the victim. The cumulation ordered was, in my view, by no means excessive.

85. It has often been said that comparison with sentences in other cases is not helpful. Sentences imposed on Crown appeals are always somewhat less than would otherwise have been handed down because of the principles applicable to Crown appeals. Furthermore, the maximum sentences in respect of both offences now under consideration have in recent times been substantially increased. The offences and their consequences both for the victim and her family, and the moral culpability of the appellant in this case were all extreme. The sentences imposed by the judge were in my view clearly within range and certainly not manifestly excessive.

92. For the reasons given by Charles, J.A., I agree that the appeal should be dismissed.

100. The formal order of the Court will be that the appeal is dismissed.

[1] [2003] VSCA 29.