R v Phillips [2000] VSCA 225

Court of Appeal (Vic)|2000-11-23|Before: PHILLIPS, C.J., BATT and BUCHANAN, JJ.A.

Criminal law - Appeal against sentence - Relationship between non-parole period and head sentence "less than conventional or orthodox expectations would produce" - No reason given for length of non-parole period - Appeal allowed - Lesser non-parole period fixed.

PHILLIPS, C.J. (delivering the judgment of the Court):

These offences were committed at a property at Carrum Downs on 28 September 1997 on a married woman. They carried maximum penalties of ten years, 25 years and 25 years respectively. You admitted some 30 prior convictions from 13 court appearances between 1973 and 1988. These included street offences, various assaults including some on the police and including an assault by kicking and two charges of burglary and two of theft in 1988 for which you received a wholly suspended sentence of six months' imprisonment. You had no prior convictions for sexual offences on women.

After hearing a plea for leniency in which a former employer was called on your behalf, the judge sentenced you to be imprisoned for two years and six months for the indecent assault, five years for the digital rape and six years for the rape with your penis. His Honour ordered that nine months of the first sentence and one year of the second be served cumulatively upon each other and the sentence on the third, making for a total effective sentence of seven years and nine months. He fixed a non-parole period of six years.

You later lodged notice of application for leave to appeal against conviction, which you have abandoned, and notice of application for leave to appeal against sentence, wherein you pleaded the following grounds:

"1. That in all the circumstances the sentence is manifestly excessive. 2. That the judge ought not to have ordered cumulation as he did."

Sunday 28 September 1997 found you at the house of a friend in Carrum Downs. You were staying for the weekend. Other people were present and a deal of beer was consumed. By the early evening, as the judge found, you and some of the other men were drunk or substantially so. The judge also found your victim was not drunk but was seated with you on a couch when you made to her remarks which had explicit sexual connotations. She said she was leaving and going to the toilet, and after she had done so you grabbed her from behind and dragged her into a bedroom, although she protested and struggled. You hit her twice and forced her legs apart and then committed the offences of which you were convicted. You then returned to the living room and proceeded to drink some more beer. The woman was medically examined in the early hours of the following morning. Dr David Wells, a very experienced forensic physician, found her calm, responsive and alert. He did not think at the time of his examination that she was grossly affected by alcohol. He observed the following injuries: an abrasion to the right side of the nose; a 1.3 centimetre bruise on the left cheek; ragged incised wounds to the upper lip below the nose; an abrasion of .5 centimetres on the lower lip; a red brown bruise on the right side of the upper abdomen; a curved abrasion 6.5 centimetres long on the lower abdomen; four dark brown bruises on the inner mid-part of the left thigh; a three-centimetre brown bruise on the outer part of the left knee; a four-centimetre mottled bruise on the right kneecap; a bruise on the front part of the thigh of 3.5 centimetres; two small oval bruises in the same area; red bruises on the tips of both elbows and a bruise on the back of the left lower thigh. The judge found that these injuries, save for the bruising to the knees, were consistent with her evidence that you raped her. The judge also concluded, having read a victim impact statement, that the woman had sustained great emotional trauma resulting from your conduct and that you had no remorse for your crimes.

There was evidence that physically the woman was a slight person and you are a man of some proportions.

Today, you appeared before us unrepresented and the Court has been told that you are unable to read or write. Before you addressed us, Mr Coghlan, the Crown Prosecutor, at the behest of the learned Registrar, informed the Court that you wanted to convey arguments that the cumulation directions in your sentence were not warranted because of the very brief lapse of time between the offences; that your prior convictions were old and did not include offences against women. Asked the Crown's view as to the non-parole period fixed in your case, counsel replied that it would have to lie at the very highest point in the range available to the learned sentencing judge.

Addressing the Court, you said that you felt that the sentence was too high. You said the judge did not take into account the alcohol involved. You said you had no sexual prior convictions and the last prior conviction was in 1988. Before that, the last involving violence was in 1976. You said you were nearly 46 years of age, you have a daughter whom you have always supported by complying with a maintenance order, and you said you had always worked, including 22 years as a garbage man with the Box Hill Council.

The Court has considered your case. So far as the cumulation directions are concerned, the question is, was it open to the judge to make them. It is not a matter of what orders we might have made had we initially sentenced you. While it is true that the offences occurred in short compass, it is also true that each added to the total picture of your criminality. Accordingly, we think the directions made were open to the judge. We have also considered the total effective sentence. The question is not what total effective sentence we might have imposed, but whether the one imposed by the judge lay within the range of those properly available. We think it did, having regard to the whole of the evidence and your personal circumstances.

You complained that the judge did not take into account the alcohol involved. The judge did find you were drunk but found also that he did not regard your being affected by alcohol as a mitigating circumstance. We think in taking that view he did not fall into error. On the other hand, your drunkenness serves to explain, but not excuse, your conduct. We have considered the non-parole period fixed. Its relationship to your head sentence is less than conventional or orthodox expectations would produce having regard to the whole of the circumstances. The learned judge gave no reason for his decision as to its length. We have searched the evidence and other material for a reason or reasons, for example a conclusion that you were a poor subject for rehabilitation. We are unable to find such a reason. Certainly, the dates and content of your prior convictions do not provide one.

After consideration, we have come to conclude that the non-parole period fixed in your case was manifestly excessive. Accordingly, it falls to this Court to fix a new period. In all the circumstances, we fix a non-parole period of five years. Otherwise, your sentence is confirmed.

The orders of the Court are that the application for leave to appeal against sentence is granted, the appeal treated as instituted, heard instanter and allowed. The sentence incurred by the applicant in the lower court is set aside as to part, namely, the non-parole period fixed, but is otherwise confirmed. In lieu of the non-parole period fixed in the court below, the Court fixes a non-parole period of five years.

The Court declares that the period of 391 days is the period of pre-sentence detention already served by the applicant as part of the said sentence and directs that the making of that declaration and its contents be entered in the records of the Court.

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