R v M D B [2003] VSCA 181

9. After various adjournments at the request of the defence, his Honour heard a plea in mitigation of penalty in Melbourne on 12 March 2002, during which a report of Mr Jeffrey Cummins, forensic psychologist, dated 26 November 2001 was tendered, the prosecutor having in November 2001 tendered a victim impact statement. On the following day his Honour convicted the applicant on each of the six counts and sentenced him to be imprisoned for the following terms with the following directions as to cumulation or concurrency on the previously imposed sentence or sentences, namely:

1 False imprisonment 3 years 2 Common assault 6 months 3 months cumulative 3 Threat to inflict serious 3 years 2 years cumulative injury 4 Rape 10 years 8 years cumulative 5 Rape 8 years Concurrent 6 Threat to kill 4 years 2 years cumulative.

That made a total effective sentence of imprisonment for 15 years and three months. His Honour further ordered that the applicant serve a minimum of 12 years before becoming eligible for parole. He directed that it be noted that the applicant was sentenced as a serious sexual offender in relation to count 6. He made a declaration as to pre-sentence detention of 134 days. Finally, his Honour made a disposal order pursuant to s.78 of the Confiscation Act 1997 and an order pursuant to s.464ZF(2) of the Crimes Act 1958 for the taking of an intimate sample.

15. On 27 March 2002 the applicant gave notice of applications for leave to appeal against conviction and against sentence. The application touching conviction was recently abandoned. The application touching sentence originally contained only one ground, namely, that the sentence was manifestly excessive. By order of the Registrar made on 31 October 2003 four further grounds were added. They alleged that the sentencing judge erred as follows:

2. in placing the crimes in the worst category of their type;

3. in that he placed too much weight on general and specific deterrence and too little weight on matters in mitigation;

4. in that he did not moderate, or sufficiently moderate, the sentences imposed given the opinions of Mr Cummins in his above-mentioned report; and

5. in that, in imposing sentences on individual counts and in ordering cumulation, matters which aggravated other offences for sentencing purposes were for a second time reflected in the sentences imposed.

22. Before considering those grounds, it is necessary to state the essence of the offences. They all occurred on 29 May 2000. The applicant is the complainant's uncle, being the half-brother of her mother. The complainant, who was then aged 28, was a married woman with two male children then aged three years and nearly three months respectively. The applicant and the complainant had known each other most of their lives. According to her, she had never been sexually attracted to the applicant, nor had there ever been any previous indication by him that he wanted physical involvement with her.

25. The applicant arrived at the complainant's home at about 3.30 p.m., having previously telephoned to ask if he could come. Her two infant children were present. Her husband was at work. She was engaged in housework. The applicant followed her around the house. As she was putting rubbish outside the back door, he grabbed her from behind and forced her to lie face down on the floor. He stifled her screams by placing his hand over her mouth, handcuffed her hands behind her back with handcuffs that he had brought with him, and said that he was going to have intercourse. This was count 1, though it would seem that the imprisonment continued beyond this point. The complainant's elder son came crying into the room and told the applicant to stop hurting his mother, whereupon the applicant struck the child with his hand, causing him to be flung into an adjacent wall. This constituted count 2. The applicant took a filleting knife from the kitchen, which he kept with him for the duration of the remaining offences. He brandished the knife in front of the three-year-old and told the complainant that if she did not co-operate he would harm the children. This constituted count 3. He then took the complainant into her bedroom and forced her to have oral sex with him on two occasions. That constituted counts 4 and 5. He told her that he had been planning the attack since he was 16. He made threats about the complainant's husband, saying that he was going to kill him when he came home.

28. The complainant's husband returned from work about 6 p.m. The applicant was present. The complainant could not tell her husband what had happened, though she tried, successfully, to indicate by her demeanour that something was wrong. It was not for another three hours, during which they drove to her parents' home and then to her husband's parents' home, followed by the applicant, that the applicant left their company and returned to his own home. The complainant had soft tissue injury around her wrists and bruises on her arms. These physical injuries were relatively minor, but she suffered severe emotional trauma and stress as a result of the offences. She was in severe shock for a week afterwards and suffered deep depression for ten months. She developed high blood pressure owing to the stress.

31. The bald summary which I have given entirely fails to convey the violent and threatening nature of the applicant's attack upon the complainant, the terrifying experience that the latter endured, and the exercise of power on the part of the applicant that it involved. A considerably more detailed account appears in his Honour's sentencing remarks and I adopt that account, though it is unnecessary to set it all out again here.

34. In the course of his sentencing remarks his Honour summarised the applicant's background from Mr Cummins's report. He accepted that the applicant had a socially inadequate personality since childhood, had suffered sexual abuse as a 13-year-old, had received treatment at a psychiatric unit at a provincial hospital at the age of 16, had been suffering from a major depressive disorder and most probably a personality disorder for many years, as well as being immature and infantile, and was not psychotic or schizophrenic, but was below average intellectual ability. As his Honour said, in reaching that view Mr Cummins had regard to the opinion of Dr Caracatsinas, a psychiatrist who saw the applicant in September 2000, that the applicant did not present with any signs of any diagnosable mental illness. (For reasons which need not be investigated, no up-to-date psychiatric report was provided to his Honour.) After referring to Mr Cummins's statement that persons such as the applicant often come to terms with their offending once they have participated in a sex offenders treatment program in prison, his Honour stated that, if that occurred, there was some hope for the applicant's rehabilitation. He had earlier referred to the applicant's lack of prior convictions. His Honour, whilst taking into account the applicant's condition and other mitigating factors put to him, gave primacy, as he was entitled to do, to specific and general deterrence as sentencing purposes.

37. Of the grounds of proposed appeal, I find it necessary to consider only those numbered 1 and 5. Ground 5, relating to cumulation, was argued both as an independent ground and as a particular of ground 1. I need consider ground 1 only so far as it relates to cumulation. To set the context for the consideration of those grounds it is necessary to make some assessment of the seriousness of the offending. The facts personal to the applicant, which of course are also relevant, have been set out earlier.

40. The crimes as perpetrated by the applicant were very serious indeed. As counsel for the respondent submitted, they had aggravating features which included the fact that the victim was, to the knowledge of the applicant, in the house without any other adult being present; the fact that her children were used as a means of coercing her to comply by the making of threats to injure them which, it was obvious, could be carried out; the attack upon the three-year-old child; the use of a knife; the humiliation of the victim in front of her three-year-old son; the handcuffing of the victim over the entire period of time covered by the first five counts, rendering her unable to protect herself or her children; the applicant's premeditation, including his forearming himself with the handcuffs; and his callous disregard of the victim's personal views on oral sex. The criminality was not mitigated by any remorse or plea of guilty.

43. It is clear that the offences the subject of the first three counts were committed as auxiliary to, or to facilitate, the commission of the sexual offences. Viewed in the light of the aggravating factors enumerated above, the substantial or, in the case of count 4, very substantial sentences on the rape counts were, I consider, appropriate. But the question is whether the directions for cumulation are manifestly excessive or (which is really the other side of the same coin) reflected all or some of the aggravating features which justified the substantial sentences for rape. Now, whether a sentence or a cumulation direction is manifestly excessive is a question which does not admit of much argument or amplification[1]. The question is not whether this Court would have imposed the sentences or made the directions for cumulation which the judge did, but whether they were open to his Honour in the exercise of a sound discretionary judgment.

46. With regard to cumulation, counsel for the respondent pointed out that the criminality involved in counts 1, 3 and 6 was different in kind from that in counts 4 and 5. Furthermore, count 2 involved a different victim. Those submissions, so far as they relate to counts 1, 2 and 3, would have considerable force if the essence of those counts had not already been brought to account in determining the sentences on the rape counts. I have come to the conclusion that the directions for cumulation relating to the sentences imposed on counts 2, 3 and 4 involved double sentencing, or, to put the matter another way, were manifestly excessive in that they resulted in a total effective sentence which offended the principle of totality. This can, perhaps, more readily be seen if the directions are notionally adjusted so as to make count 4 the base count and to make one year of the sentence on count 1 cumulative upon it.

49. As the last observation implies, it may be that making count 1 the base count was the source of error, for that created a distortion whereby the less serious offence (false imprisonment) took on an undeserved primacy, whilst the most serious offence (rape the subject of count 4) was, or appeared to be, diminished. At least in general, it is preferable for judges to cumulate upon the most serious count, as otherwise the effective sentence for it appears to be reduced: Director of Public Prosecutions v. Grabovac[2]; R. v. Reid[3]; and R. v. Birnie[4].

55. If the other members of the Court agree with that conclusion, the sentence imposed upon the applicant (now appellant) must be set aside and he must be re-sentenced. In the light of the facts and comments set out earlier, I would sentence him to be imprisoned for the following terms, namely: two years on count 1, six months on count 2, three years on count 3, ten years on count 4, eight years on count 5, and four years on count 6. I comment on one only of those sentences. Although the sentence of three years' imprisonment on count 3 slightly exceeds one half of the

maximum sentence for that offence, the threat was a fearsome one, made to a mother of young children and relating to both of those children. Moreover, it was a threat which, the applicant made only too clear to her, he had it well within his power to carry out, and to carry out not at some later date or at some other place but then and there. I would direct that one year of the sentence imposed on count 1 be served cumulatively on the portion of the sentence on count 6 that is to be served cumulatively by operation of law and upon the sentence imposed on count 4, and that three years of the sentence imposed on count 6 be served concurrently with the last mentioned sentences and portion of sentence.[5] The total effective sentence would therefore be imprisonment for 12 years. I would fix a non-parole period of nine years. It will be necessary to make a declaration as to pre-sentence detention and a declaration that the applicant was sentenced on count 6 as a serious offender. The other orders of his Honour should be affirmed.

61. I agree. The offence of rape is invariably serious. The counts in the present case were undoubtedly grave examples. There was thus no error in fixing the terms for the two rape counts. The vice lay in cumulating significant proportions of the sentences imposed on the other counts which had already been used by his Honour in characterising the rape offences themselves. That is all that this Court should seek to correct.

65. I agree that this application should be allowed and that the applicant should be re-sentenced, and I agree with the disposition proposed by Batt, J.A.

Leave to appeal against sentence should be granted.

The appeal should be directed to be heard and determined instanter.

The Court sets aside each of the sentences and directions made by the learned judge on 13 March 2002.

In lieu thereof the Court sentences the applicant as follows:

on count 1 - that he be sentenced to a term of 2 years' imprisonment;

on count 2 - that he be sentenced to a term of 6 months' imprisonment;

on count 3 - that he be sentenced to a term of 3 years' imprisonment;

on count 4 - that he be sentenced to a term of 10 years' imprisonment;

on count 5 - that he be sentenced to a term of 8 years' imprisonment;

and that on count 6 he be sentenced as a serious sexual offender to 4 years' imprisonment.

The Court directs that one year of the term imposed in respect of count 1 should be served cumulatively upon the term imposed for count 4; further, that three years of the term imposed with respect to count 6 should be served concurrently with the term imposed on count 4 and on all other terms.

The total effective sentence is therefore 12 years.

The Court directs that the applicant serve a period of 9 years before becoming eligible for parole.

There should be the declaration I have already mentioned with respect to the characterisation of the applicant as a serious sexual offender in accordance with s.6F of the Sentencing Act 1991 and that it be noted that he is sentenced as a serious sexual offender in respect of count 6.

There will be confirmed the orders for confiscation and the order pursuant to s.464ZF(2), and it is necessary to declare pursuant to s.18(1) of the Sentencing Act that the period of 742 days is the period during which the applicant has been in custody up to the present day in respect of each of these offences and that it be reckoned as a period of imprisonment already served pursuant to the sentences imposed today. It further is directed that the declaration be noted in the records of the Court.

[1] Dinsdale v. The Queen [2000] HCA 54; (2000) 202 C.L.R. 321 at 325, para [6].

[2] [1998] 1 V.R. 664 at 689, esp. ll.35-36.

[3] Unreported, Court of Appeal, 3 April 1998, at p.15.

[4] [2002] VSCA 155; (2002) 5 V.R. 426 at 436.

[5] See s.6E of the Sentencing Act 1991.