R v Hyland [2008] VSCA 220

The sentencing judge directed that two years of the sentence imposed on count 1 and three months of the sentence imposed on count 3 be served cumulatively upon each other and upon the sentence imposed on count 2. The total effective sentence thus imposed was fourteen years and three months' imprisonment. The sentencing judge fixed a period of 10 years' imprisonment before the appellant was to be eligible to be released upon parole.

2 In this appeal, brought by leave, the appellant relies upon the following grounds:

1. The sentence was in all the circumstances manifestly excessive.

1. The learned sentencing judge failed to give sufficient weight to the plea of guilty by the appellant.

3 The sentencing judge described the circumstances of the offending as follows:

Your victim [CJ] resided in Yarraville. [CJ] at the time was 80 years of age. Her neighbour [MR] became known to you on the day preceding these offences. That day, namely 9 August 2005 the neighbour [MR] who was then unknown to you called out to you asking for a cigarette. Your were in company with another unknown person who left and you repaired into [MR's] unit and consumed alcohol. You stayed the night with her and the following morning 10 August 2005 went to the local shopping centre where you purchased liquor. You continued drinking at a hotel in Yarraville and conversed with [MR] about your respective general backgrounds, during the course of which she informed you that she had previous dealings with the CAT team and after learning a little about your previous history she declined to leave the hotel with you. You left and you went to [her] unit in Williamstown Road where you continued drinking. That afternoon, shortly before 3 o'clock [CJ] the victim returned home from her shopping and her hair appointment. She was home a short period when you rang her doorbell and informed her that her neighbour, your new acquaintance [MR] was not feeling well and that you wished to ring the CAT team [CJ] knew that [MR] had some mental health issues and unlocked the security door and let you in. She ushered you to the phone and invited you to use it whereupon you placed your hands over her mouth and said "Do as you are told and you won't get hurt". You then demanded of her that she undress. You then walked [CJ] into the bedroom. She was in shock and scared and did not say anything out of her fear. Once in the bedroom she pleaded "Please, please". But you kept demanding that she remove her clothes. She was so frightened that she was unable to do so. You removed her clothing which you discarded onto the floor and then told her to lie down on the bed, which she did. Then you removed your clothing and lay on top of her, placing your lower body between her legs. You told her to open her legs wider and she said that she could not. Then you inserted your penis into her vagina. You were not wearing a condom and you told her to open her legs even wider. You kissed her on the lips and neck whilst you raped her. She did not respond as she was in shock. You entered her for between two and three minutes and ejaculated on the top of her vagina. You then lay next to her. Whilst doing so, you asked her whether she had any money. In particular, you asked whether she had an ATM card. You put your clothes on and told her to go and get some money. Totally naked, she walked to the kitchen opened her handbag and took out $25 and handed you a $20 note. You asked for the other $5 but she stated that she needed it. You then walked to a window and asked her to swear to you that she would not tell the police. She made no response and you left.

4 The evidence against the appellant was strong. Latent finger prints were found on beer bottles in the rubbish bin of MR's house. DNA sampling was undertaken of the victim's clothing and her bed, dress materials and carpet. Matches with the appellant's DNA were made with respect to the victim's underpants, singlet and bed sheets. A warrant for the appellant's arrest was issued soon after the occurrence of the crime. However he had fled to South Australia where he was arrested on 18 September 2005 in relation to other matters. The matters in respect of which the appellant was detained in South Australia came before the South Australian court on 9 May 2006. By this time the results of forensic evidence obtained at the scene of CJ's unit became known and a warrant for the extradition of the appellant was sought. He did not oppose extradition nor did he seek bail.

5 Not surprisingly the victim impact statement which was tendered before the sentencing judge demonstrated that the effect of the appellant's rape was most significant upon her. In summary, the victim stated that she could not eradicate the dreadful ordeal from her memory. She stated that she remained nervous and apprehensive whenever she heard noises around her front door. On the anniversary of the offence she left her unit for the whole day because she could not stay at home. Whenever she sees a person who resembles the appellant in appearance she feels 'jittery'. She is depressed and she said that sometimes when she gets up in the morning she sits on the couch staring into space for an hour or so. For a long time she was unable to bring herself to tell anyone what had happened to her. Even by the time of making the statement in late October 2006 she had disclosed it to only a very few people. On the day of the offence she had been out shopping and answered the request at the door because she had concerns for her neighbour. She stated that she feels unable to answer her door to anyone she does not know and is fearful of coming face to face with the appellant again. She said that she can still visualise the appellant standing in her lounge room. There can be no doubt that the invasion of her home and her humiliating rape has had a most significant consequence upon her and her feelings of safety and independence.

6 The appellant was born on 20 June 1969 and was aged 36 at the time of the offending. He has 16 prior convictions from five previous court appearances between 1987 and 2005. Of particular relevance is the fact that on 13 November 1989 at the County Court at Melbourne the appellant was convicted of rape, burglary with intent to rape, assault with intent to rape, intentionally causing injury and sentenced to a total effective sentence of four years' imprisonment with a minimum period of 21 months to be served before being eligible for parole. At the County Court at Melbourne on 22 September 1993 the appellant was convicted of intentionally or recklessly causing injury and indecent assault and sentenced to a total effective sentence of 32 months' imprisonment with a minimum period of 26 months to be served before being eligible for parole. The sentencing judge observed as follows:

Count 2, rape, is your third offence of a sexual nature and your second offence of rape. All these offences involve violence. You have committed four burglaries, two of which were with intent to commit rape and one count of assault with intent to commit rape. The previous count of rape in January 1987 was committed when you were 17½ years of age and was perpetrated upon a 51 year old woman in her home. You struck her about the head and penetrated her. On Christmas Day 1992 you indecently assaulted [another victim]. At that time you were 22½ years of age and your victim lived with you and two other people. You walked into her bedroom, grabbed her around the throat and told her to take off her clothes. She sought to reason with you but you jumped on top of her and pulled her pants down and removed her shirt and bra. You touched her on the breast with your hands and covered her mouth to stop her screaming. You then punched her to the right eye and she suffered a blood nose. You then retreated, said you were sorry and left. Shortly thereafter you contacted police. During the period 1987 to 1985 between the ages of 18 and 26 you were imprisoned on three occasions for a total of about four years over the eight year period. In 1985 you left Australia and returned to Ireland and Europe for about eight years, whereupon you returned to Australia in March 2004. These offences which are brought before this Court took place almost 18 months' later.

7 The sentencing judge described the appellant's background as follows:

You were born in England, moved to Ireland and migrated to Australia at age one with your parents. At age five you returned with your parents to Ireland before returning to Australia at aged nine. Some two years' later your parents separated and your stepfather moved in with your mother. Apparently your father was a violent alcoholic and your stepfather the same. The latter also, I was informed [by your counsel]. He subjected you to violence and it was your perception that your mother blamed you for your stepfather's conduct. He had three children who were not assaulted. When you were about 15, you left the family situation and were assisted by the Salvation Army and never returned to live with your mother and stepfather for any significant period until a brief time in mid-2005. You have had little contact with your father over the past 15 years. He apparently lives in Ireland. Your schooling was unsettled and you had many substantial moves. You began school in Ireland and completed grade 4 and then completed six months in grade 5 in Perth at which time you returned to Melbourne and attended primary school there. You went to secondary school in Murrumbeena and transferred to Caulfield Tech until about year 9 and then to the St Kilda Community Centre where you completed year 11. You were expelled from Caulfield for fighting and wagging and attributed your problems at school to your problems at home because it was hard for you to concentrate. You informed consultant psychiatrists and psychologists that you were sexually interfered with by a baby sitter when you were four years' old and later had a sexual relationship when aged 11 with your 30 year old neighbour. You worked as an unskilled labourer both in factories and supermarkets until you were imprisoned in 1989 and then, according to the history you have to the consultant psychologist, Elizabeth Warren, "drifted around" until your subsequent imprisonment in 1993. Upon your release on parole, you were directed to attend the Brunswick Street Clinic. You attended once in 1996 and were told that there was no requirement for you to return. I note that you had a psychiatric assessment in 1989 and were diagnosed as "normal" according to Elizabeth Warren's report. In a report of July 1993, Mr Ian Joblin, consultant psychiatrist, stated that you were admitted to Mont Park the next year 1990, when you attempted suicide by cutting your throat.

You then returned to Ireland and married a lady from Bulgaria by whom you had a daughter. She lived in Bulgaria and you worked in Ireland for months on end, returning for a couple of weeks from time to time to visit your family. That marriage failed and you returned to Australia in March 2004 when you lived for a short time with your mother and stepfather. Your marriage was destructed by your excessive drinking. Your daughter is now eight years of age and resides with her mother overseas.

8 In the course of the plea hearing before his Honour, which commenced on 21 October 2007, a report from psychologist Elizabeth Warren was tendered. In his sentencing remarks his Honour referred to Ms Warren's report in some detail. Ms Warren had seen the appellant in the Metropolitan Remand Centre in October 2006. She formed the view that there was no evidence of intellectual deficit. Indeed, intellectual testing revealed the appellant to have a 'high average classification'. Ms Warren expressed the opinion that the appellant had some residual anger at his mother's inaction regarding the violence to which he had been subjected at the hands of his stepfather. She considered that that anger might be part motivation for the rape. She concluded that the appellant 'should now assume future risk and take appropriate preventative measures, which could include better social engagement so that others can observe and alert him to deterioration'. Ms Warren reported that the appellant informed her that he had been assessed by a psychiatrist in 1989.

9 Not surprisingly, his Honour was concerned about the fact that in such circumstances there was no psychiatric report before him, and he adjourned and ordered a pre-sentence psychiatric report. The pre-sentence report was provided by Dr Adam Deacon a consultant psychiatrist at the Victorian Institute of Forensic Mental Health. Dr Deacon examined the appellant at the Melbourne Remand Centre on 20 November 2006. Dr Deacon considered that the appellant engaged at a superficial level, maintaining conversation in a guarded fashion. The appellant was periodically evasive and avoidant in answering direct questions relating to his past and current offences. He did not appear to be reliable and candid; rather he appeared to be measured and calculated. His social manner whilst being generally polite, was glib and shallow. Dr Deacon considered that the appellant displayed negligible insight into his offending behaviour. He appeared defensive in acknowledging any significant wilful contribution to his behaviour. He rationalised and intellectualised his behaviour as him being 'like a zombie'. He minimised the possibility that he may have been angry. He expressed token remorse but this was expressed more in terms of his experience of shame 'I feel disgusted, ashamed, embarrassed'. Dr Deacon expressed the following opinion:

Mr Hyland is a three-times convicted sex offender, all involving degrees of violence. Mr Hyland has a developmental history that may have placed him at an increased risk of committing acts of sexual violence towards females. He was allegedly exposed and subject to considerable emotional, physical and sexual abuse as a child and adolescent. He developed anti-social tendencies and conduct problems as a child that escalated in severity during his adolescence. There was a long history of both alcohol abuse and dependence. He has also been chronically dependent upon marijuana. It is difficult to characterise Mr Hyland's personality structure but he appears to have anger problems that are mostly controlled but periodically explode, sometimes leading to offending behaviour. Alcohol appears to have a significant disinhibiting effect. Mr Hyland has a limited formal psychiatric history. He does not present with any obvious signs of a mental illness in addition to his substance dependency. Mr Hyland is less than candid in discussing his past and recent offending behaviour. He conveniently minimises any volitional component and responsibility by attributing his behaviour to alcohol and drugs that "made" him into a "zombie" who was "not thinking properly". There are clearly many relevant aspects to the causation of Mr Hyland's behaviour that he is unwilling to discuss; some aspects may be unconscious. He may have a particular disdain for women given the disrespect he has for his own mother who is both a victim of violence but may have also condoned violence towards himself. Mr Hyland superficially accepted that he "had a problem" and was willing to have further assessment by Corrections Sex Offender Program. Mr Hyland does not currently impress as a good candidate for such programs given his superficial and glib interpersonal style and lack of palpable empathy and remorse. Irrespectively I would recommend Mr Hyland be considered by further assessment by CSOP and engage in intensive drugs/alcohol counselling. Mr Hyland does not currently warrant any specific psychiatric treatment.

10 In addition to the report of Dr Deacon, his Honour had before him reports from psychologist Mr Ian Joblin and consultant psychiatrist Dr Ruth Vine which had been prepared in 1993 prior to the sentencing of the appellant in the County Court on charges of intentionally or recklessly causing injury and indecent assault. His Honour set out in detail a summary of those reports. Mr Joblin had seen the appellant in July 1993 whilst he was in Pentridge Prison. He was then 24 years of age. Mr Joblin obtained a history that the appellant had first seen a psychiatrist when he was aged 13, and that he had slashed his throat in 1990, leading him to be admitted to Mont Park Hospital overnight. Mr Joblin considered that the appellant had 'fairly severe psychological problems' and felt that these problems related largely to his alcohol abuse and use of marijuana. Mr Joblin felt that the appellant's future 'as at July 1993 is one of some concern'. The appellant was seen by Dr Ruth Vine, psychiatrist, on 27 August 1993. She enquired of the appellant as to the cause of his offending on Christmas Day 1992. In relation to that offence the appellant told Dr Vine that he had lost control and 'felt horny' and acted under the influence of drugs and alcohol. Dr Vine stated that it was not clear whether a combination of drugs and alcohol were directly connected to that criminal behaviour. She went on to state:

[The appellant] does not have a current psychological illness and does not require psychiatric treatment this time. He shows evidence of an anti-social personality disorder and it may be that in the longer term he would benefit from attention to anger control methods and to his drug and alcohol usage. It is likely that Mr Hyland will continue to suffer periods of labile mood and be at risk of self harm both within and outside the prison system and will require brief support and psychiatric attention.

11 His Honour observed that it was of significance that the histories taken by Dr Deacon of the appellant's offending in 1989, 1993 and 10 August 2005 were similar indeed. As to the offence committed in 1989 the appellant had 'drunk too much, not thinking straight, that was the result'. In 1993 the appellant's explanation to Dr Deacon for the commission of the offence was 'drinking, smoking marijuana, not thinking straight'. Likewise in relation to the offence committed in August 2005 he said that he had been 'drinking excessively, addicted to pokies, at a loose end, nothing to do. I was a zombie no control over what I was doing'.

12 I turn now to consider the grounds of appeal. It is convenient to refer first to ground 2.

13 In the course of his sentencing remarks the sentencing judge referred to the plea of guilty of the appellant. He said as follows:

You indicated a desire to plead guilty to these offences at the earliest opportunity. That is a considerable factor to be weighed in your favour. In part, it is a reflection of the remorse which you hold but to a larger extent, in my view, is the fact that you have spared [CJ] from the devastating prospect of having to give evidence at your trial. In addition, you have spared the State the expense of mounting such a trial. In particular, I am mindful of [CJ's] age and the possibility that had you wished to protract these proceedings, she may well have passed away before the trial was conducted. Even though the forensic case against you, based on DNA, is strong, your early plea of guilty in the circumstances calls, in my view, for a palpable discount in the sentence which the Court would otherwise impose.

14 It is submitted by counsel for the appellant that notwithstanding the fact that the sentencing judge stated that he intended to give a palpable discount in the sentence for the early plea of guilty, the sentence which was imposed by him did not reflect such discount. In effect ground 2 is a particular of the complaint made by ground 1 that the sentence was in all the circumstances manifestly excessive. The submission of the appellant concedes that the statistics reveal that the sentence imposed on the count of rape is not the highest sentence imposed for this offence,[1] but it is submitted that there were important mitigating factors, in particular the appellant's guilty plea and his remorse. It is submitted further that in the context of this offence the appellant had a long psychiatric or psychological disturbance which manifested itself in persistent substance abuse and periodic outbursts of sexual violence. It is submitted that the sentencing court was obliged to take into account as a mitigating matter reduced moral culpability in accordance with the principles set out in R v Verdins.[2] It should be observed that no submission was made to the sentencing judge that the case of R v Tsiaras[3], or indeed the principles of Tsiaras which were adopted later in R v Verdins, were of any relevance.[4] Nor, in my view, could such submission have been made sensibly. There was no evidence of any mental disorder from which the appellant was suffering at the time of the commission of the offence nor for that matter at any other relevant time, notwithstanding the fact that there had been an earlier diagnosis by Mr Joblin, psychologist, of bipolar disorder which was not confirmed by eminent psychiatrist Dr Vine.

15 There was nothing in the material before his Honour to suggest that in accordance with the principles set out in Tsiaras or in Verdins the appellant was other than an appropriate vehicle for the full application of the principles of general and specific deterrence.

16 Insofar as the submission that the appellant's remorse was a significant mitigating factor the sentencing judge said as follows:

... on the question of remorse, Dr Deacon, on the one hand concluded that your remorse is "token remorse, but this was expressed more in terms of his experience of shame 'I feel disgusted, ashamed and embarrassed"'. Dr Deacon's view was that you saw yourself as a victim because you had to deal with the possible ramifications of others learning of your crime. On the other hand Ms Warren interpreted your remorse to be sincere concluding "his last crime has shocked and disturbed him and he is deeply ashamed and sorry" ... I conclude that you have limited insight into your offending, but that you are remorseful.

17 It should be observed that the evidence before his Honour as to insight varied. Dr Deacon said that the appellant 'displayed negligible insight into his offending behaviour'. He also observed that the appellant minimised the level of severity of the offence saying 'I wasn't in for too long ... only an inch'. The opinion of Ms Warren as to the insight of the appellant was equivocal. She said:

Clinical features of note that are considered to underpin the sexual offences are unresolved agitated feelings regarding mother, father and stepfather. He is aware and has insight into some aspects but in other areas does not himself find a link between his anger and the sexual offending.

In my view the evidence of remorse was limited indeed and such evidence as there was was given appropriate consideration by the sentencing judge.

18 As was conceded by counsel for the appellant upon the plea, the rape of CJ was a repulsive offence. The rape of an elderly woman in her own home in the circumstances here described calls for condign punishment. Moreover the appellant was a person who had been responsible for two previous sexual attacks upon women and had served prison terms in respect thereof. Clearly the issue of specific deterrence loomed large before his Honour. The appellant was sentenced as a serious sexual offender. As the sentencing judge observed correctly the principal sentencing objective in the case before him was the protection of the community. In the circumstances of this case and as the sentencing judge found, the appellant carried out a horrifying rape upon a woman of 80 years of age in her own home causing her great fear, humiliation and mental anguish. His Honour gave very careful consideration to the appellant's previous sexual offences, describing in detail those offences and the circumstances in which the appellant committed them. His Honour gave careful attention to such mitigatory factors as existed, including such remorse as he found the appellant suffered, the plea of guilty, the psychological and psychiatric evidence before him and all those factors personal to the appellant as well as other general matters. After considering all these matters, his Honour imposed a sentence of 12 years on the count of rape. In my opinion and in all the circumstances the sentence on the count of rape cannot be seen as manifestly excessive and I do not consider that a different sentence should have been imposed.

19 I turn to the sentence imposed on the count of aggravated burglary. There can be no doubt that the entry of the appellant into the home of his victim under a false pretext and with the intention to commit a sexual offence upon her was a serious example of the crime of aggravated burglary and called for a substantial sentence. The appellant entered the home of his victim with full knowledge of the fact that his intended victim was alone and elderly. He did so by deception, pretending to be acting as a 'good Samaritan'. The maximum penalty for aggravated burglary is 25 years' imprisonment and this is a serious example of that crime. However, as pointed out by counsel for the appellant the highest sentence previously imposed for this offence for the period between 2001 and 2006 is seven years' imprisonment. Current sentencing practices are a relevant consideration in sentencing and in my view and notwithstanding the serious nature of the offence, the imposition of a sentence of 12 years in all the circumstances of this case is manifestly excessive. I would impose a sentence of six years imprisonment on this count.

20 As to the sentence of nine months' imprisonment imposed by his Honour on count 3, the count of theft, it appears to me to be clear that no exception could be taken to such a sentence. Although the amount stolen was relatively small, the circumstances of the theft were callous indeed. As with count 2, I do not consider that a different sentence should have been imposed.

21 Notwithstanding my view that the sentence imposed on the count of aggravated burglary was manifestly excessive I do not consider that any exception can be taken to the orders for cumulation imposed by his Honour. In my view the total effective sentence of 14 years and three months imposed upon the appellant cannot be said to be manifestly excessive in all of the circumstances of this case. Likewise, in my opinion, under no circumstances can the non-parole period fixed by his Honour of 10 years be called manifestly excessive. Indeed, on one view, and taking into account the circumstances of the offending and the antecedents of the appellant and the evidence about the limited prospects of rehabilitation, it may be seen as relatively merciful.

22 In my opinion the appropriate order is to allow the appeal in part but otherwise to affirm the sentences imposed upon counts 1 and 3 and to make the same orders as to cumulation so as to impose the same total effective sentence as was imposed by the sentencing judge.

23 I agree with the disposition proposed by his Honour the presiding judge for the reasons he has given.

1. The appeal is allowed in part.
2. The sentences imposed on 23 March 2007 on counts 2 and 3 below are affirmed.
3. The sentence on count 1 is quashed and in lieu thereof the appellant is sentenced to six years' imprisonment.
4. The Court directs that two years of the sentence imposed on count 1 and three months of the sentence imposed on count 3 be served cumulatively upon each other and upon the sentence imposed on count 2, making a total effective sentence of 14 years and three months, such term of imprisonment commencing on 23 March 2007.

5. A non-parole period of 10 years' imprisonment is fixed.

1. It is declared that the period of 318 days is to be reckoned as already served under the sentence and it is ordered that there be noted in the records of the Court the fact that that declaration was made and its details.
2. The orders made by the sentencing judge on 23 March 2007 under s 464ZF of the Crimes Act are affirmed.

[1] The Sentencing Statistics provided by the Sentencing Advisory Council demonstrate that between 2002 and 2007 there has been one sentence exceeding 20 years and 15 sentences of between 10 and 15 years imposed for the principal offence of rape.

[2] [2007] VSCA 102; (2007) 169 A Crim R 581.

[3] [1996] VicRp 26; [1996] 1 VR 398.

[4] The judgment in Verdins had not been handed down as at the time of sentencing of the applicant.