R v Fuller-Cust [2002] VSCA 168

R v Fuller-Cust [2002] VSCA 168 - VSCA 2002 case summary — Zoe

[57]

Mr. Tehan informed the court that he was not arguing that the indecent assaults were not relevant offences, but was submitting that the fact that his Honour had not made a finding as to whether the words quoted were satisfied in relation to either of the indecent assaults[7] showed that an erroneous approach permeated the whole of the sentencing discretion. It is clear that the very acts constituting the indecent assault the subject of count 7 and also the use in connection with it of the mirror satisfied the alternative relating to the degrading or humiliating of the victim. But with respect to the indecent assault the subject of count 2 the position is less clear, particularly in regard to the connotation of the word "immediately" so far as it may be necessary to consider acts immediately before or immediately after the indecent assault. Since, as will appear, I am of the opinion that it is necessary for this court to re-sentence the applicant and since, in the absence of findings by the sentencing judge, this court must for re-sentencing find as a matter of fact whether the quoted words are satisfied in the case of count 2, it is not, I consider, sufficient to rely on Mr. Tehan's concession. That is all the more so if, as I am inclined to think is the case, s.6C(2) applies (despite the heading to the section) to the question presently under consideration, for it requires the court to be satisfied beyond reasonable doubt that the conviction is for a relevant offence. Nevertheless, I am so satisfied that, if the acts specified in paragraph [9] as constituting count 2 do not satisfy the quoted words, the other "indecencies" there referred to, but not specified, which in fact include an uncharged digital vaginal rape, and which were perpetrated in close temporal proximity to the indecent assault, do satisfy the alternative relating to the degrading or humiliating of the victim. If it can be said that the offence in count 1 occurred "immediately before" the commission of that in count 2, then undoubtedly that alternative was satisfied on that score also.

[61]

It is clear from the context (including his Honour's statement on this subject to defence counsel[8] close to the end of the plea hearing) that by "cumulation" in the statement impugned by this ground his Honour meant total, as opposed to partial, cumulation. He was speaking in terms of the cumulation of what might be called the total effective sentences arrived at for the respective separate episodes. Though it is clear from the passage in which the impugned statement occurs, which is set out in paragraph [41] above, that his Honour applied the "rule" in this case, he did say only that it was the "normal" rule. Nevertheless, total cumulation as between episodes is not the normal rule. Rather, s.16(1) of the Sentencing Act ordains a prima facie rule of concurrency, good reason being required to direct any cumulation: R. v. Mantini[9]. It cannot be said that his Honour was speaking of s.6E when he stated what he said was the normal rule, for the passage in which the impugned sentence statement occurs begins with the expression "Absent the statutory requirement," scil., for cumulation of all sentences, stated in the previous sentence to be the primary directive of the legislation. Reliance was placed for the respondent in argument on Director of Public Prosecutions v. Grabovac[10], where in connection with sentencing for multiple offences Ormiston, J.A. (with whom the other members of the court agreed) stated that, though concurrency was to be preferred, "a degree of cumulation ought to be ordered where sentences represent separate episodes or transactions which ought to be recognised, though at all times avoiding the imposition of a `crushing' sentence." A similar passage, but without the last clause, is to be found in the Victorian Sentencing Manual.[11] It may be accepted that Ormiston, J.A. was giving guidance as to an appropriate case for departing from the prima face rule in s.16(1), but the important point for present purposes is that, as is apparent from the quotation, he was recommending "a degree of" cumulation, not total cumulation. It was also contended that the impugned statement was correct as being consistent with R. v. O'Rourke[12] and Attorney-General v Tichy[13]. But R. v. O'Rourke was not concerned with cumulation or concurrency as between episodes of offending and in Tichy Wells, J expressly refrained from laying down comprehensive principles on the question.

[66]

The history taken by Mr. Joblin records the following. The applicant's foster parents were very strict Brethren. They were strict and abusive towards him. This lead to resentment on his part. His foster father sometimes belted him severely. Moreover, he perceived that he was different with his Aboriginal background. His foster mother's brother sexually abused him from the age of seven to the age of eleven, but, despite his telling his foster mother of this, nothing was done about it. The foster parents had four children of their own. The applicant has maintained contact with his foster sister only. After he was placed in the Ballarat Children's Home the applicant spent time in Baltara, Turana, Tally Ho Boys' Home and Bayswater Boys' Home. His employment history was unstable, his last job being in 1991. As to previous offending, the applicant told Mr. Joblin that the 1980 offences arose when he became upset with the youth worker and a dispute arose. After release and spending a difficult time with his foster brother-in-law the applicant moved to live with a girlfriend in South Yarra for three years, during which time a daughter was born. They separated in 1985 and he began another relationship with a woman who had two sons. They lived in Ascot Vale and separated in 1986. He moved to Ballarat, but was drinking excessively and abusing drugs. He was taken in by Skewes. Eventually he moved to Melbourne. He met a young woman and they became engaged. That relationship ended apparently four weeks before they were to be married, because of his problems with alcohol. Then through the church he met the victim in the matters for which he was sentenced in 1992. His next relationship was with a woman his age whom he met through the church in Geelong (and whom he married as already mentioned). She was English and had three children, then aged fourteen, seven and four. They bought a house in Geelong. At that stage he was relatively stable, though he still had occasional problems with alcohol. On one occasion they separated for three weeks. He went to Ballarat. They decided to sell their home in Geelong. She moved with the children to live with him in Ballarat in a rented premises. A week later she became ill and shortly thereafter died of meningitis in late 1999. The children's father applied for custody but failed. The children went to live with Mr. and Mrs. Skewes, but the applicant slept at his rented property, drinking excessively.

[67]

Under the heading "Assessment" Mr. Joblin states that the case is somewhat extraordinary and what separates it from others of such a serious nature is the applicant's very good intellect. He has good insight. The issue with him is simply that he has had and continues to have "considerable anger about his history". He is concerned about his Aboriginality. He is concerned about his Irish father. He is concerned about being "dumped" on a weekend at an infant welfare centre in Geelong and then being fostered to inappropriate persons. He felt isolated and alienated. In addition he was subjected to sexual abuse by an uncle. Mr. Joblin opined: "Given that history and lack of stability, there is, in my opinion, good reason to predict the development of a serious disturbance in psychological functioning of an anti-social nature. Indeed that transpired." By early 1980, the applicant was in Pentridge. In addition he had a history of alcohol abuse. He told Mr. Joblin that basically he was a binge drinker. When at times he reflects on his history he cannot tolerate the anxiety and self-medicates with alcohol. Mr. Joblin continued "Quite obviously, the alcohol exacerbates and aggravates an underlying anger and frustration. Unfortunately [he] has sought to take out that anger on four female victims who have been in a situation with him when he has been upset and drinking." He has difficulty forming appropriate relationships. He feels he cannot trust anyone. The two paragraphs quoted in paragraph [34] above then follow in the report. Mr. Joblin stated that the applicant did not demonstrate any significant psychological abnormality. He is not psychotic. He does, however, have serious psychological and psychosocial problems that stem from his history. He is confused over his Christianity and Aboriginality. He is confused about his relationships. Until the issues mentioned are addressed, "one would have some concern for this man. He needs serious psychotherapeutic intervention....There is considerable work to be done before he can be given an optimistic prognosis."

[70]

The offences to which the applicant pleaded guilty are, with one possible exception (count 6), serious ones, as is shown by the maximum penalties applicable. This is especially true of rape. Essentially, the two sets of instant offending were committed upon women who had helped or befriended the applicant, were committed upon them in their own homes, at night and after the applicant had drunk himself into intoxication, and involved their being degraded, humiliated and terrorised over periods of many hours. To judge from the expert evidence, the offending sprang from the applicant's anger and resentment in reaction to perceived personal rejection, betrayal and lifetime disadvantage which, as he knew from past experience, he was not able to control after over-indulgence in alcohol. In determining the length of the sentences for all counts other than count 4 and 6 the protection of the community from the applicant is, by virtue of s.6D(a), the principal sentencing purpose and, even in the case of counts 4 and 6, it is, by s.5(1)(e), a relevant purpose. The protection of the community from the applicant is, in my opinion, also a proper consideration, and an important one, bearing on the decision whether, and if so to what extent, to direct otherwise than as provided in s.6E for the cumulation of individual sentences. In addition, general and specific deterrence are important in this case, as is the manifesting of the court's denunciation of the applicant's conduct. Further, regard is required by s.5(2)(f) to be had to the applicant's previous character, a concept amplified in paragraph (a) in particular, and also paragraph (c), of s.6. It must not, however, be given such weight as to lead to the imposition of penalties which are disproportionate to the gravity of the instant offences. Here, the applicant's antecedent criminal history shows that the instant offences were not uncharacteristic aberrations but rather that the applicant manifested in committing them a continuing attitude of disobedience to the law, so that retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. Again, the antecedent criminal history illuminates the applicant's moral culpability in the instant case and shows dangerous propensity on his part and a need to impose condign punishment upon him. In short, the considerations discussed in the joint judgment in Veen v. The Queen [No. 2][16] on this topic are particularly apposite.

[72]

The applicant's co-operation with police, his plea of guilty (manifesting acceptance of responsibility and a willingness to facilitate the course of justice), and some evidence of remorse are to be taken into account as mitigatory. In addition, his background was relevant. That background had two aspects in Mr. Tehan's argument: first, the sexual abuse he suffered as a child and, secondly, his being placed, from infancy, in unsatisfactory institutional care and highly unsatisfactory foster care, with consequent separation from his natural parents and concomitant disadvantage. In R. v. AWF[17] this Court held that childhood sexual abuse suffered by an offender was relevant to moral culpability, rehabilitation and specific deterrence, though it was made clear that its relevance and persuasiveness varied greatly and that its force was not strong where the charges were of the most serious kind, as these are. The court also made it clear that evidence as to an offender's background may explain, but will rarely excuse, the offending. It must be remembered that the applicant had obtained a university degree before the present offending. In any event, as it seems to me, neither aspect can have much weight here in the face of the nature and objective gravity of the two sets of offences and the principal sentencing purpose of protection of the community and other important sentencing purposes applicable. So far as the applicant's Aboriginality is concerned, the law, as I understand it, is that the same sentencing principles apply to an Aboriginal offender as to any other offender, but there may be particular matters which a court must take into account in applying those principles which are mitigating factors applicable to the particular offender, including disadvantages associated with the offender's membership of the Aboriginal race: Neal v. The Queen[18]; R. v. Rogers and Murray[19]; and R. v. Fernando[20]. (The way of life of the offenders in those cases was far different from that of the applicant in Geelong and elsewhere in Victoria.) The relevant matter on the evidence here, in my view, is that the applicant was brought up in the care that has been described, separated from his natural parents, and I have already dealt with its significance.

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