R v Griffin [2006] VSCA 60

1 The appellant appeals against sentence on his conviction on one count of digital rape to a term of five years and six months' imprisonment with a non-parole period of three years.

2 The offence occurred on 11 November 2000, when the appellant and the complainant (whom I will refer to hereafter as "GB") attended a church conference at a country venue. They had known one another for about eight months prior to the offence. GB was 54 years old at the time and suffered both an intellectual and physical disability. She lived alone and required a walking frame to move about. The appellant was a qualified nurse and had worked with patients suffering from intellectual and physical disabilities over some years previously. He was 46 at the time of the offence.

3 By arrangements made on the evening of 10 November 2000, the appellant agreed to provide GB with transport from her home to the church conference venue. He collected her at about 8:30am in the morning and drove her home again at the conclusion of the conference, arriving at the complainant's home about 5:00pm. On that first occasion he waited outside the complainant's home for about 15 minutes while she changed her clothes. He then drove her back to the conference venue for a dinner that was arranged that evening and various evening activities. After the dinner, at about 8.30 p.m., the appellant drove GB home and, after parking his car outside her home, went inside with her. He told GB that she had two spots on her neck area and that he had formerly been a nurse at a particular country centre. The appellant then told GB to go into her bedroom. She went into her bedroom, followed by the appellant, and he then told her to take off her dress, repeating that he was a nurse and that he just wanted to look at the spots on her neck. He told GB to pull down the bedroom window blind. She was frightened of what might occur if she did not obey him, and proceeded to pull down the blind and remove her dress. The appellant then told the complainant that he wanted to remove her bra. She complied. By then the complainant was wearing only a half slip, stockings and underwear. The appellant told GB to sit on the bed and then, while she was so seated, he touched her breasts, telling her that he was looking for sores. He repeated that he was a nurse and told her that she was not to tell anyone about what he was doing. The appellant then told GB to lie back on the bed and after she had done so he pulled her underclothing and stockings partly down, and again told her that he was a nurse and not to tell anybody. The appellant then began feeling the complainant's genital and surrounding areas. At that point she sat up and asked the appellant not to do what he was doing, and told him that she did not like it. The appellant responded by directing the complainant in a loud voice to lie down and be quiet. The appellant then told GB to completely remove her underwear and open up her legs, repeating that he was a nurse and that he was looking for sores. The complainant did as she was told and the appellant continued to feel around her genital area. By this point the appellant had pulled over a chair to the bed and was seated. In this position he then inserted his fingers into the complainant's vagina. This was the count of rape.

4 The appellant continued to tell GB that he was a nurse and that the complainant should not tell anybody about what had happened. After some time he removed his fingers from the complainant's vagina and told her that he was going to wash his hands. He told her not to put any clothes back on, to stay in that position, and that he would come back to the bedroom and talk to her. When the appellant went out of the bedroom, GB put on a dressing-gown and when he returned she told him they could not stay in the bedroom because she thought her son might be coming around soon. Whilst this was not true, the complainant told the appellant this in order to get him out of the bedroom. The appellant left the bedroom and remained in the house for about a further five or ten minutes, during which time he repeatedly said to the complainant that he was a nurse and talked about sores. The appellant repeatedly told the complainant not to tell anyone what had happened. He then left.

5 A few days later the complainant reported the incident to members of the local church. Initially the appellant denied any wrongdoing. When the appellant was arrested, he participated in a record of interview, during which he admitted going to GB's home on the first occasion and going inside the house. He denied going inside her home on the second evening occasion, claiming that he dropped the complainant off outside her home. He also denied the allegations relating to the second occasion, including the circumstances from which the count of rape arose.

6 The matter went to committal, at which the complainant was cross-examined. There was no issue that that was done in a sensitive manner. Nevertheless it was doubtless stressful for the complainant. Eventually, after some delays and various adjournments, the matter came on for trial on 8 November 2004. The appellant was arraigned and pleaded guilty to one count of rape (count 1 on the presentment) and not guilty to one count of indecent assault (count 2 on the presentment). The appellant admitted 17 prior convictions from two court appearances in 1991 and 1997. Of those, twelve convictions were for indecent assault, two for common assault, two for behaving in an offensive manner and one for theft.

7 On the plea, the learned sentencing judge had before him the victim impact statement of the complainant, the presentment, and transcript of plea and sentence with respect to the prior convictions, together with various medical reports and documents relating to the appellant. At the time of sentence, and since, the appellant was suffering a number of medical conditions, including pancreatitis, diabetes, and various physical and psychological difficulties, among them some post-operative problems.

8 In the course of the plea, counsel for the Crown tendered the materials with respect to the prior convictions. There was no opposition or objection by defence counsel to that course. However, in the course of submissions, it was submitted by the defence that his Honour should not rely upon those materials to draw inferences of humiliation and degradation. At this point it is appropriate to set out what actually occurred in the way the Crown put those matters on the plea. Counsel, having tendered the earlier presentment and transcript, informed his Honour of the relevant counts and the asserted fact that they related to young female nurses at the same care facility for persons of intellectual disability where the appellant also worked. It was explained that the relevant period of conduct spanned approximately twelve years, and that in each instance the victim was younger than the appellant, naïve, new to their job, and that the appellant was in a position of superiority. It was submitted to the judge below in this matter that the acts constituting the prior convictions were acts likely to degrade and humiliate. The purpose of the submissions by the Crown, as was made quite plain, was to demonstrate that his Honour ought sentence the appellant in this case as a serious sexual offender under Part 2 of the Sentencing Act.

9 It is relevant for present purposes to broadly set out the circumstances of the related prior convictions to which his Honour's attention was directed and which were considered broadly in the course of the plea. One count related to a young woman who was 19 at the time of the offence, when the appellant approached her and grabbed her breasts from behind when she was working in the laundry at the facility for persons with intellectual disabilities. This was referred to as count 1. Count 2 of the prior convictions related to a 17-year-old student who had been called into the appellant's office. He locked the door once she was in there and pushed her against the desk and tried to unzip her dress, and she struggled against him. The appellant became more aggressive and tore the zip away from the dress. The next relevant count on the previous convictions was count 4. It related also to a young student nurse. At the time of that particular incident she was on duty at the swimming pool at the facility. She was engaged in putting a young girl on the toilet when she was attacked from behind and forced into the corner of the toilet cubicle by the appellant, where he ran his hands over her breasts and vagina and tried to remove the young woman's bathers. The next count of the prior convictions that is relevant was the fifth count. Again it related to a young nurse, who was involved at the time in working and scrubbing the laundry floor of the relevant facility. The appellant came in and shut the door behind. He grabbed the young woman, put his hand up her dress, and grabbed the outside of her vagina. She managed to escape but was then followed by the appellant into another area, where he pursued her. The pursuit was eventually interrupted by a ward assistant. The next relevant count was count 6. In that case a woman at the facility was alone in the laundry, when the appellant pinned her from behind, pulled her uniform off her shoulders, dropped her bra straps and fondled her breasts. The next count was count 7. It related to a 17-year-old nurse. She was subjected to various acts of harassment by the appellant that ultimately led to an attack by him from behind when she was washing dishes in the kitchen. He put his hand up her dress and tore her pantihose and underwear away and apparently said, "If I ever want you I will, and there's nothing you can do about it." The next count was count 8. It related to a trainee at the facility who had been there for about nine months. She was supervising clients at the swimming pool and was in the water when, she said, she was groped in the genital area by the appellant. The next count was count 9. When the appellant was involved with a young woman in a toilet area, he followed her and while she was washing her hands he approached her and began fondling her breasts. The appellant pulled her underwear down, removed his penis and ejaculated near her vagina. Another count was count 10, again involving a young woman at the facility, when the appellant grabbed her on her breast. There were other counts that were drawn to the attention of his Honour in this matter below, including one incident whereby the appellant pressed his penis against the individual concerned.

10 In the course of the reasons for sentence below, his Honour noted the total of 17 prior convictions and the fact that he had before him the presentment and transcript of the plea in those matters. His Honour broadly described the conduct constituting the prior convictions and noted that they had "considerable importance generally" in the case. His Honour then proceeded to conclude his reasons and find that two of the previous indecent assault convictions caused the appellant to fall to be sentenced as a serious sexual offender.

11 Presently before the Court there are two grounds of appeal, the first ground (ground 1) having been abandoned. Ground 2, the first ground I consider, related to the way in which his Honour below treated the prior convictions in the course of his reasons for sentence. It was said that his Honour erred in five respects: first, that his Honour adopted an erroneous approach to the question of serious sexual offenders and his treatment of the appellant; secondly, his Honour's taking into account of matters about which the appellant was neither charged nor convicted; thirdly, that his Honour in any event did not have open to him the opportunity to make alleged findings in the course of his reasons for sentence; fourthly, that the procedure relied upon to make the findings was flawed; but, more importantly, fifthly, that there were in any event errors made in the course of the findings. It was said with respect to the last matter that, even if the findings made by his Honour were proper and that it was appropriate for him to have regard to the transcript of the earlier proceedings, the learned judge was wrong to conclude that the victims in each of the prior conviction incidents were persons over whom the appellant was able to exert power or authority. Ultimately with respect to ground 2, it was submitted that for these reasons the learned judge erred in a material matter and that the discretion was re-opened.

12 Having considered the submissions both in writing and put today by Mr McLoughlin, in my view there was no error on the part of the judge with respect to the matters raised under ground 2. A careful analysis of his Honour's reasons revealed that his Honour did no more than, as was properly open to him, consider the material that was before him. Notably, there was no objection to the matters being put before him relating to the prior convictions. I have carefully considered the transcript on the plea and I can see no indication, obliquely or otherwise, of an objection to the inclusion of those matters in the materials to be put before the learned judge for the purposes of considering his sentence of the appellant. Consideration of these matters leads me to conclude that there was no material error. On the contrary, the prior convictions of the appellant were of the highest relevance to the circumstances before the sentencing judge and the matters which his Honour was entitled to consider. His Honour did no more than consider those matters in the course of taking account of all the matters that were before him for the purposes of the plea. It was open to his Honour to consider the earlier course of conduct of the appellant with respect to the victims of the prior convictions, in particular the indecent assaults. It might be said, arguably, that his Honour need not have confined himself in his path of reasoning to the two prior convictions for indecent assault that his Honour did. It might be said that it was indeed open to his Honour to take account of all the relevant matters. In any event, as I have concluded, it was open to his Honour to take account of these matters and his Honour did no more than make findings of fact on the material before him, and which he was quite entitled to do.

13 In my view, no material error has been made out. It follows that ground 2 fails.

14 I turn then to the second ground (ground 3), which is a ground of manifest excess. The basis upon which the ground is put forward is that the judge failed to take account adequately of the plea of guilty, the delay of four years between the offence and sentence, the appellant's very serious ill health, and other sentences imposed for digital rape.

15 Certainly in this case the appellant did plead guilty. Of course, it was not at the very earliest opportunity and it was appropriate, which doubtlessly his Honour did, to take account of the timing of the plea of guilty, and it is noted that in the course of the plea the Crown quite properly made the concession that the appellant was entitled to the full benefit of that early plea. It was a matter that his Honour clearly took into account. As to the matter of delay, there certainly was some delay, but some of it was of the making of the appellant; some of it was for various reasons which were not related to the appellant. There is the matter of the appellant's serious ill health. Those matters were before the court and his Honour considered those matters properly as he ought. As to the matter of other sentences imposed for digital rape, it is appropriate to note at the outset that the maximum penalty for rape is 25 years. As his Honour observed, this was a serious case surrounded by unfortunate circumstances. It was open to his Honour to take account of all the relevant matters, including the condition of the victim, and, as his Honour observed, it was a serious example.

16 Taking account of these matters, together with the prior convictions of the appellant, in my view the sentence that was imposed by his Honour was well within the range, and I do not regard it in any manner as excessive in all the circumstances. It follows that ground 3, the second ground (manifest excess), is not made out.

17 It follows further that in my view the appeal ought be dismissed.

18 I have some reservations as to whether the sentencing judge was entitled to elevate the two prior convictions of indecent assault by effectively finding that they constituted a category of offence other than that for which the appellant was presented and sentenced. Nevertheless, I am of the opinion that the sentence imposed below was correct and no different sentence should be now passed. Accordingly, I agree with the disposition of the appeal proposed by the Chief Justice.

20 The order of the Court is that the appeal is dismissed.