R v Gill [2010] VSCA 67

1 The appellant, Luke Gill, pleaded guilty in the County Court at Geelong to one count of rape (Count 1) and one count of robbery (Count 2).[1] He was convicted and on 30 January 2008 was sentenced to 16 years' imprisonment on count 1, and to six years' imprisonment on count 2. The learned sentencing judge cumulated three years of the sentence on count 2 on the sentence on count 1. The total effective sentence was thus 19 years' imprisonment. The judge fixed a non-parole period of 14 years' imprisonment.

2 Now the appellant appeals by leave against sentence. The grounds upon which he relies are these:

Ground 1: The sentences on Counts 1 and 2, the order for cumulation, the resulting total effective sentence and the non-parole period are manifestly excessive and in breach of totality.

Ground 2: The learned judge erred in failing to discount the sentence on Count 2 to account for the overlapping behaviour giving rise to both counts.

3 In our opinion, the appeal must be allowed and the appellant re-sentenced.

4 The circumstances giving rise to the offences occurred in central Geelong in the early hours of 1 December 2006.

5 The victim (EO) was a 22 year old student. She worked as a kitchen hand to supplement her income.

6 EO was unknown to the appellant, a man then aged 28.

7 On the evening of 30 November 2006, having finished work, EO went to a friend's house for a barbecue. Then she and a girlfriend went to a bar in order to celebrate a new job which EO had obtained in Melbourne. After a time, the victim and some friends went to another hotel, in Little Malop Street, Geelong. At each venue, the victim had a few drinks, danced and socialised.

8 At about 2.00am EO left the hotel in order to go to a nearby ATM to obtain some cash.

9 As she left the ATM, the appellant stopped her, and grabbed her arm. She told him that she had to return to the hotel.

10 At the intersection of Little Malop Street and Moorabool Street, EO wanted to turn one way, so as to return to the hotel. But the appellant, who had his arm around her shoulders, forced her to turn in the opposite direction.

11 Once EO realised that she was heading away from the hotel, she attempted to break free, and demanded that she be allowed to leave. But the appellant grasped her more forcefully and made her to walk along the Market Street Mall in the direction of his choosing.

12 After the two of them then had moved further away from other people, the appellant pushed EO into a fire exit doorway. There he forced her to the ground, ripped off her clothes, pushed her into a kneeling position, and repeatedly penetrated her anus and vagina. He used, it seems, a 12 cm long perfume bottle which she had in her handbag, and probably also his hand and/or fist.

13 EO resisted what was being done to her as much as she could. But there were real limits to what she could do because she was being badly injured, was scared and crying.

14 In time, the appellant left. He took his victim's purse and some personal belongings. He searched the purse when some distance down the Mall. He discarded most of the items which he had taken. He apparently took away a set of keys, a mobile phone, and $110.00 in cash.

15 EO was, as we have said, badly injured by the attack. She was bleeding a lot. She managed to make her way back along the Mall towards the intersection of Moorabool Street. There she collapsed. An ambulance attended.

16 The paramedic who attended the scene of EO's collapse observed that - (1) she was curled up on the ground in a foetal position; (2) she was extensively covered in blood, and lying in a pool of blood; (3) she was bleeding freely from the anus; (4) there were blood clots on her buttocks, with a large flap of torn flesh, and what the paramedic took to be prolapsed rectum or bowel; (5) EO was disoriented in time, place and person.

17 The paramedic considered that EO was 'in decompensated hypovolaemic shock and required urgent fluid resuscitation and surgical intervention.'

18 EO was taken by the ambulance to Geelong Hospital. On admission, her blood pressure was extremely low, her heart rate was very fast, her conscious level was reduced and she had suffered significant blood loss.

19 The complainant underwent surgery. The attending surgeon observed -

An obvious severe complex perineal trauma involving both the vagina and the anus. On closer inspection there was a full thickness separation extending from the posterior vagina through the perineal body into the interior anal canal with complete division of the sphincter complex. This tear continued ... for a total distance of fifteen centimetres.

20 The damage - to the rectum, vaginal wall, perineal body and the separate anal sphincter muscles - was surgically repaired. A laparotomy was performed and a temporary colostomy bag established.

21 The attending surgeon opined that EO was at risk of long-term impaired sphincter function. It might deteriorate by reason of a number of circumstances.

22 EO was hospitalised for eight days. She had to wear the colostomy bag for several months. When it was removed, and closure was effected, she was again hospitalised, on that occasion for seven days.

23 There are other potential physical consequences of the complainant's injuries. We will mention them later in these reasons.

24 EO was also left, on the material available at the time of the plea hearing, with continuing psychological sequelae of the attack. A diagnosed post traumatic stress disorder had these features: (1) symptoms of dissociation, in the severe and acute range; (2) dramatic decrease in social functioning; (3) inability to work full time and to continue study; (4) symptoms of anxiety and depression, in the mild range; and (5) sleeplessness, nightmares and flashbacks.

25 On the other hand, a psychologist who assessed EO in June and July 2007 considered that her prognosis for a good recovery - over an unknown period, but most likely several years - was excellent. She opined that EO's intelligence, upbringing and family support would help her recovery.

The extent, cause and consequences of the injuries forensically described

26 Dr Angela Williams, a forensic physician employed by the Victorian Institute of Forensic Medicine, reported after examining medical and other material that - (1) it was difficult to conceive that the injuries were caused by penetration by the perfume bottle alone; (2) the other penetrating object may had been a hand or a fist; (3) the injuries caused were not compatible with life in the absence of 'time critical medical intervention'; (4) significant genital injuries post assault 'are seen in less than 1% of cases and rarely described to this extent'; (5) in the collaborative experience of five doctors in the Department of Clinical Forensic Medicine, 'injuries of this extent and severity to the anogenital area have never been seen in live victims of sexual assault'; and (6) prospective long-term consequences included: (a) inability to give birth except by Caesarean section; (b) 'ongoing issues with psychological trauma'.

The appellant: his circumstances and other matters advanced in mitigation

27 The appellant was, as we have said, aged 28 at the time of offending. He came from a broken home. He resided with his mother during his childhood. He left school at the end of year 11 in order to get work. Over the ensuing years, he was mostly in work, in unskilled employment. He was last in work, before the present offending, in late 2005. Thereafter he was in receipt of a 'Newstart' allowance.

28 The appellant had been in a series of relationships over the years. By the time of the present offending, he had two children by different relationships, and his new partner was pregnant. Indeed, it appears that his offending on this occasion may have been related in some way to a dispute with his partner concerning her pregnancy.

29 The sentencing judge accepted that the appellant had a long-term alcohol problem; and also that he was a multi-drug user. But for cogent reasons, which he well-explained, the judge did not accept that alcohol or drugs were 'in any way responsible for you committing [these] crimes.'

30 The appellant had relatively few prior convictions. None of them were for sexual offences. But he did have a conviction for assault, and one for breach of an intervention order.

31 The learned judge accepted that the appellant's offending on this occasion was out of character. A number of character references placed before his Honour testified to the appellant being gentle, caring and loving. The appellant's limited prior offending did not give the lie to those references.

32 His Honour noted that, whilst in prison, the appellant had undertaken a number of self-improvement courses, and as well had tested clean for drugs. These matters bore upon what the judge characterised as 'some prospects for your rehabilitation'.

33 Bearing upon sentence also was the question whether the appellant was remorseful for his offending. For reasons which we consider were cogent, the learned judge did not accept the contention for the appellant that he was truly remorseful. He stated that he 'placed little weight' upon the appellant's expressions of remorse. But he did take into account in the appellant's favour the fact that he had 'acknowledged responsibility for [his] crimes and expressed some sympathy for [his] victim.'

34 Next should be mentioned the fact that the appellant pleaded guilty to the counts on the presentment. The plea was not made early. It came after the appellant had lied on more than one occasion to the police about his movements on the night in question. It came after he had changed his appearance in several ways from his appearance on the night in question, and after he had attempted to obliterate his fingerprints by having a friend place them repeatedly on a barbecue hot plate. It came after CCTV footage was obtained which made it very clear that he had no prospect of successfully denying his involvement in the offending.

35 For all that, the appellant did plead guilty. The plea meant that EO was spared the burden of giving evidence (even if there had not been one question in cross-examination). Further, it had utilitarian value, and it served the public interest that accused persons, if guilty, publicly acknowledge their guilt. In those circumstances, ordinarily, the plea would stand as a mitigating factor operating to reduce the sentence which would otherwise have been imposed. The judge stated that it so operated in this case.[2]

Why the appeal must be allowed. What fresh sentences should be imposed.

The sentence on the robbery count was manifestly excessive. All aspects of the sentence are opened up for reconsideration

36 Counsel for the appellant submitted that, whatever view might be held about the sentence imposed on the rape count, the sentence for the robbery had been so far beyond what could have been justified that manifest excess was an inevitable conclusion. He observed that, despite his client's plea of guilty to that count,[3] it was difficult to see that the particular offending had been more than a theft. But viewed as a robbery, and allowing that it had been committed upon a rape victim, the sentencing range was, he submitted, 12-24 months' imprisonment.

37 Immediately after counsel for the appellant had addressed sentence on the robbery count, the Court sought a response from senior counsel for the Crown. Whilst not conceding that either the total effective sentence of 19 years' imprisonment or the non-parole period of 14 years was wrong, he submitted that the total sentence was the product of a sentence on the rape count which was too low and a sentence on the robbery count which, he really conceded, was manifestly too high. He nominated the sentencing range on the robbery count as 18-24 months' imprisonment. He seemed to submit, assuming the correctness of his submissions thus far, that by reason of s 568(4) of the Crimes Act 1958 the Court could not or should not interfere with any aspect of the sentence imposed.

38 The Court demurred to that submission. It intimated its opinion that, once accept that the sentence on the count of robbery was manifestly excessive, all aspects of the sentencing process were opened up for reconsideration. That included the sentence imposed on the count of rape.

39 We pause to confirm the view of s 568(4) which we expressed on the hearing of the appeal. The provision operates as follows: this Court is empowered to quash a sentence if - (a) error is detected in the sentence passed; and (b) the Court considers that a different sentence should have been passed. In the case of a single offence, there is no difficulty in understanding what is meant by 'sentence' in s 568(4). The situation is not quite so obvious where an offender is sentenced at the one time for more than one offence. But the correct position, applying the facts of the present matter to the subsection, is that once the Court determined (as it does - see below) that the sentence on the count of robbery was manifestly excessive, and that a lesser sentence should be imposed, the sentence on that count, the order for cumulation, the sentence on the rape count, and the order fixing a non-parole period, were opened up for fresh determination. That is so for these reasons.

40 First, the 'sentence' referred to in s 568(4) was not the total effective sentence which in this case was produced by the individual sentences and the order for partial cumulation. A total effective sentence is not a sentence of imprisonment. As the Court of Criminal Appeal said in R v Boucher,[4] in a somewhat different context -

It is not possible to appeal against a total effective sentence: the prisoner can appeal only against the individual sentences of imprisonment and the orders made for concurrency or cumulation.

41 Second, at least in a case such as the present, it is no answer to a conclusion that the sentence on the robbery count was manifestly excessive that 'structural arguments' are to be avoided,[5] and that the overall disposition was acceptable. The point is illustrated by DPP v Joseph.[6] There, on appeal, different individual sentences were imposed although, in the end result, the same total effective sentence was arrived at.

42 Third, although it might conceivably be argued that the sentence on the rape count alone should stand, the sentencing exercise was an integrated one in which the judge was required to synthesise the various sentencing considerations so as to produce individual sentences and an order for partial cumulation (if he considered that the latter was required) which appropriately punished the appellant for the totality of his offending. Several aspects of the sentencing exercise having been successfully impugned, what remains must necessarily be re-examined.[7]

43 We return to the narrative. The Court having indicated its provisional opinion about the operation of s 568(4), argument proceeded on the assumption that the Court would conclude that the sentence on the robbery count was manifestly excessive and that the sentencing discretion generally was re-opened. Counsel for the appellant conceded that it was open to the Crown, in those circumstances, to argue that the sentence on the rape count ought be increased; and, indeed, counsel for the Crown did so contend.

44 Before turning to the competing arguments with respect to sentence on the count of rape, we should state and explain our opinion that the sentence on the robbery count was manifestly excessive.

45 Manifest excess, for the purposes of an appeal in a criminal matter, describes a sentence which is outside the range of sentences legitimately available to a judge in the exercise of his or her discretion. Although there is no single 'correct' sentence for a particular crime, because the entire circumstances of each instance of that crime will differ, sentences imposed by judges in many cases involving that offence establish a broad sentencing 'range', which may include a variety of options. If the sentence in a particular case, all circumstances considered, falls very plainly beyond the top end of the range, it is described as manifestly excessive.[8]

46 Robbery involves stealing, and immediately before the stealing, and in order to effect it, the use of force or the putting in fear of force. It is the use of force or the putting in fear of force to effect the stealing which turns theft into robbery.

47 In the present case, the applicant took the items to which we have earlier referred essentially as an afterthought. The force which he had used related to the rape. Had he not pleaded guilty to the count of robbery, it is doubtful that he could have been convicted of it. Nonetheless, he did plead guilty to the offence, and he fell to be sentenced for it. Robbery from an injured and defenceless rape victim was deplorable, and this was a significant sentencing consideration. That is so although, as was recognised in the submissions for the appellant and the Crown, the circumstances otherwise did not support a conclusion that this was a serious instance of the offence. Each counsel nominated two years' imprisonment as the upper limit of sentence on the robbery count. We agree with their submissions. In the event, the sentence of six years' imprisonment which the judge imposed was very clearly manifestly excessive. The appellant must be re-sentenced.[9]

48 All things considered, we will impose a sentence of two years' imprisonment on this count.

What sentence should be imposed on the rape count?

49 Counsel for the appellant submitted that, although the rape was extremely serious, and its impact upon EO had been grave, nonetheless the sentence imposed on that count had been manifestly excessive when all matters standing in mitigation were brought to account. He argued that the judge had failed to give adequate weight to mitigating circumstances. He relied upon - (1) his client's plea of guilty, which he submitted ought be given substantial weight; (2) his client's remorse; (3) the absence of prior convictions for sexual offences, which he submitted was relevant to the need for protection of the community; (4) his client's efforts to rehabilitate himself, as indicated by the number of courses which he had undertaken whilst in custody; (5) the fact that his client had suffered depression whilst in custody; (6) the fact that his client remained in protective custody; (7) the judge's finding that his client had some prospect of rehabilitation. He sought to compare the circumstances of the instant case with the circumstances considered by this Court in R v WCE,[10] and in R v Welsh.[11]

50 Counsel for the Crown submitted that this case approached the worst category of rape. The appellant's reliance upon his plea of guilty was his 'best point'. The appropriate range of sentences, counsel submitted, was 18-20 years' imprisonment.

51 For reasons which we already explained, it is unnecessary to consider the argument that the sentence on the count of rape was manifestly excessive. The question to be decided is what sentence should now be imposed for that offence.

52 The rape was perpetrated by the appellant upon a person unknown to him. He was larger than she. She was, in substance, dragged off the street late at night whilst going peaceably about her own business. The incident took place over some time. The rape itself was unarguably savage. The injuries which the appellant inflicted upon EO were life-threatening. She suffered the physical and emotional sequelae to which we have referred. Her victim impact statement, reserved in tone but the more eloquent for that, highlighted her suffering.

53 The circumstances to which we have referred explain why this rape fell into the category of extremely serious rapes. But this does not mean that matters relied upon for the appellant, to the extent that they are valid, can be disregarded.

54 The maximum penalty for the offence of rape is 25 years' imprisonment.[12]

55 The maximum penalty should be reserved for the very worst cases of rape.[13]

56 Counsel for the appellant submitted that a rape involving violence similar to that used in the present case would have been worse if - (1) committed in company; (2) planned; (3) committed by a man with prior convictions for sexual offences; (4) committed by a 'serious sexual offender' (this term has a particular meaning in the criminal law in this State. It did not apply to the appellant.); (5) the offender had pleaded not guilty, and had been convicted after trial; (6) there had been a multiplicity of rapes; (7) gross injuries had been inflicted upon the victim in addition to any injuries inflicted in the course of the rape.[14]

57 We agree with that submission. To that list may be added the case of a revenge rape[15] attended by violence such as was here used; and, arguably also, rapes involving invasion of the sanctuary of the victim's home, or the use or threatened use of a weapon.

58 It follows from what we have thus far said that this rape, serious though it was, was not a rape which, other things being equal, could attract the highest of penalties.

59 Then there must be considered the matters upon which the appellant relied in mitigation. We have set them out at [49]. In our opinion, each of them, except for remorse, is able to go in mitigation of penalty. But in the overall sentencing synthesis, we give none of them, except for the guilty plea, much weight at all.

60 Senior counsel for the Crown, as we have said, submitted that the appropriate range of sentence for the rape was 18-20 years' imprisonment. We think that he proposed no higher figures because he recognised the absence in this case of any of the circumstances to which we have referred at [56]-[57]; and also because the rough guide to sentencing practice which is provided by sentencing statistics would not support any greater sentence. Counsel did not argue, we add, that 'current sentencing practices' were too low.

61 We do not accept the Crown's submissions, because we consider that a sentence in the range which counsel proposed would leave no room for a case of violent rape attended by one or more of the circumstances to which we have referred at [56]-[57] and in which there was an absence of mitigating features - particularly a plea of guilty. Although the discount allowed by sentencing judges for a guilty plea - from what can be seen since s 6AAA of the Crimes Act was introduced - seems to vary quite widely, a discount (expressed, for convenience, in percentage terms) of 15-25 per cent is not unusual. But even if only a ten per cent discount was allowed in this case, a sentence of 20 years would represent a sentence, if the matter had gone to trial on a not guilty plea, of about 22 years' imprisonment; and a sentence of 18 years would convert to a sentence after trial of 20 years' imprisonment. In our opinion, sentences in that range would not sufficiently allow for cases having one or more of the features to which we have referred at [56]-[57].

62 Further, to the extent that sentencing statistics can provide some guide to 'current sentencing practices', a matter to which the Court must have regard under s 5(2)(b) of the Sentencing Act 1991, we do not think that the Crown's submission was assisted thereby. In the period 2003-04 to 2007-08, 226 people were sentenced for rape. Imprisonment terms varied from two to 20 years. There were only two sentences above 14 years. The median length of imprisonment was five years, the most common length of imprisonment was five years, and the average term varied from five years and one month to five years and nine months. When an offender was sentenced for other crimes at the same time, there being some cumulation of sentence, there were only four instances of a person being sentenced to a period in excess of 19 years' imprisonment. So far as we can see, the sentence imposed upon the appellant for rape must have been the second highest imposed in that five year period, and the total effective sentence must only have been exceeded on four occasions. It seems also that the highest total effective sentence must have been that

imposed on Welsh.[16] His case involved a number of the features to which we have referred at [56]-[57].

63 Whilst counsel for the Crown has not persuaded us that a sentence of 18-20 years ought be imposed on the rape count, counsel for the appellant has not persuaded us that the sentence which the judge imposed on the count of rape was otherwise than appropriate. The whole circumstances which we have described, given whatever could be said in the appellant's favour, in our opinion require the imposition of such a sentence. The individual sentences imposed on the counts of rape in Welsh, and the sentence on the count of rape imposed in WCE, do not persuade us to the contrary.

64 We consider, then, that the appellant should be sentenced to 16 years' imprisonment on the count of rape.

65 Notwithstanding that the robbery was an act temporally not much distant from the rape, we consider that there should be partial cumulation of the sentence on that count with the sentence on the count of rape. We will order cumulation to the extent of one year. The total effective sentence will, therefore, be 17 years' imprisonment.

66 We will fix a non-parole period of 13 years' imprisonment. This does not mean, of course, that the appellant will be released at the end of that period or, indeed, at any time before the expiration of 17 years. Whether and when he is released will depend upon the decision of the Parole Board, reached upon consideration of the factors required by law.

67 For the reasons given, we will allow the appeal, and re-sentence the appellant to 16 years' imprisonment on count 1 and to two years' imprisonment on count 2. We will order that one year of the sentence on count 2 be cumulated on the sentence on count 1, this making a total effective sentence of 17 years' imprisonment. We will fix a non-parole period of 13 years' imprisonment. We will otherwise confirm the sentence and other orders made below.

[1] The appellant also pleaded guilty to a firearms offence. The judge sentenced him to one month's imprisonment, and made no order for cumulation. The appellant did not appeal against that sentence.

[2] Because sentence was passed before the commencement of s 6AAA of the Sentencing Act 1991, his Honour was not obliged to state the sentence that he would otherwise have imposed. The artificiality and difficulties of that obligation were exposed by Kaye J in R v Flaherty (No 2) [2008] VSC 270; (2008) 19 VR 305.

[3] He made no application to change his client's plea.

[4] [1995] VicRp 7; [1995] 1 VR 110, 116. See also R v Albanus [2004] VSCA 236 [9](Callaway JA).

[5] Discouragement of structural arguments has particular resonance in cases where the accused has committed a large number of similar offences, often involving dishonesty, and the judge has taken a broad brush approach to the individual sentences imposed.

[6] [2001] VSCA 151.

[7] Again, although the issue was not the same, see R v Iddon and Crocker (1987) 32 A Crim R 315, 328 (Crockett, Murray and Hampel JJ).

[8] The concept was slightly differently expressed, but to the same effect, by Maxwell P in R v Abbott [2007] VSCA 32; (2007) 170 A Crim R 306, [13]-[14].

[9] It is unnecessary in the circumstances, to give consideration to the second ground of appeal.

[10] [2004] VSCA 243.

[11] [2005] VSCA 285.

[12] That has been the maximum penalty since 1991. Before that, the maximum sentence for rape was ten years' imprisonment, and the maximum sentence for rape with aggravating circumstances was 20 years' imprisonment.

[13] See, for instance, Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357, 372 [31], R v Sibic [2006] VSCA 296; (2006) 168 A Crim R 305 [14] (Redlich JA) and R v AB (No 2) [2008] VSCA 39; (2008) 18 VR 391, 403 [40](Nettle JA).

[14] Cases involving one or more of those circumstances are DPP v Devaldez [2003] VSCA 29, R v WCE [2004] VSCA 243 and R v Welsh [2005] VSCA 285.

[15] Which was thought to be the case in R v Tahche. See Cannon v Tahche [2002] VSCA 84; (2002) 5 VR 317, 319-320 [3]-[6].

[16] R v Welsh [2005] VSCA 285. Welsh and another man invaded the victim's home in an act of vengeance. They did so in disguise. They planned their actions. They took with them various sex items. They bound their victim, and placed a hood over her head. For an hour and three quarters they repeatedly penetrated her orally, vaginally and anally with a series of objects and Welsh penetrated her with his penis. They cut most of her clothing. A knife and scissors were drawn over her naked body. We need not refer to other abhorrent aspects of their conduct. Welsh pleaded guilty to ten counts, including six of rape. On each count of rape, he was sentenced to 20 years' imprisonment. With some cumulation, a total effective sentence of 26 years was arrived at, and a non-parole period of 20 years was fixed. This Court rejected Welsh's appeal.