R v Sotto [2009] VSCA 70

2 He had six prior convictions arising from three court appearances, relating to the intentional damaging of property, affray and theft (1998) and the possession and use of cannabis (2003).

3 The applicant was 22 years of age at the time of the offences presently under consideration, and 24 years at the time of sentence. After hearing a plea in mitigation of penalty, the trial Judge, on 12 February 2007, sentenced him to

His Honour ordered that 12 months of the sentence imposed on count 5, 6 months of that imposed on count 4, and 6 months of that imposed on count 9 be served cumulatively upon the sentence imposed on count 8 and each other. This created a total effective sentence of nine years' imprisonment, in respect of which a non-parole period of seven years was set.

The application for leave to appeal against sentence

4 The applicant was refused leave to appeal by a single judge of this Court. He elected to renew the application for leave to appeal before a bench of three. His grounds assert that -

1. The learned sentencing Judge erred in imposing a manifestly excessive sentence, both in terms of the total effective sentence and the non-parole period.
2. The learned sentencing Judge erred in making factual findings that were adverse to the applicant without those facts having been established beyond reasonable doubt.

5 The offences were committed in a rooming house in Templestowe in which both the victim and the applicant resided. The summary of evidence with which the Court has been provided contains the following description of the circumstances.

Incident 1:

On a Saturday afternoon sometime in July 2005, the applicant knocked on the door of the victim's bedroom. At this time, the victim was returning to her room with a cup of tea. The applicant pushed the victim in the back which caused her to be pushed into the wardrobe and spill the cup of tea. The applicant called the victim a bitch (count 3).

Incident 2:

In the early hours on 2 August 2005, the victim was in her bedroom. The applicant entered the room and got into the victim's bed and cuddled her. When the victim saw the applicant she asked him what he was doing. The applicant touched the victim over her clothes, under her clothes, in her pants and also felt her naked breasts (count 4). The applicant penetrated the victim's vagina with his fingers (count 5) and then his penis (count 8). The victim tried to scream but the applicant had his hand over her mouth. He made a gesture with his hand across his throat and threatened to kill her (count 9). The applicant removed his penis from the victim's vagina and ejaculated.

The victim suffered bruising on her face from where the applicant had held it when raping her.

6 It is convenient to address first the claims of specific error to which reference is made in ground 2. The judge stated, when imposing sentence -

... the jury's verdict reflects the jury rejected your explanation and was satisfied beyond reasonable doubt that you assaulted [the victim] on the Saturday afternoon and then in the early hours of 7 August, you entered her room as an intruder, indecently assaulted her, raped her twice and threatened to kill her.[2]

...

That ordeal must have been terrifying for her and it is incumbent upon me as sentencing judge to send a message to people in the community such as you that they are to be severely punished for intruding into other people's homes or rooms in a boarding house, in this case, in the early hours of the morning.[3]

7 Counsel for the applicant submitted that these remarks make apparent that her Honour 'plainly regarded the fact that the applicant entered the victim's room as an intruder as a circumstance of aggravation'. He pointed out that his client had not been charged with trespass or burglary and argued that it was not open to her Honour either as a matter of law or fact to make this finding and then treat it as an aggravating circumstance.

8 We are far from persuaded her Honour may have fallen into the error of sentencing the applicant for an offence with which he had not been charged[4] or that she employed an incorrect standard of proof with respect to her finding that the applicant entered the victim's room as an intruder.[5] The impugned passages are more reasonably interpreted as reflecting the judge's justified view of the seriousness of the behaviour in which the applicant engaged, particularly when regard is had to the context in which he acted.

9 The applicant through his counsel had claimed at the trial that he had been invited into the victim's room and engaged in consensual sex with her. Her evidence - the essential features of which it can be safely assumed were accepted by the jury, acknowledging that they acquitted the applicant on some of the counts laid against him - was that she was asleep in her bed when the applicant entered her room and overpowered her. Consistent with the verdicts, the judge was entitled to find beyond reasonable doubt that that was what had taken place. To describe the applicant as an intruder in that situation was quite appropriate. That was exactly how the judge, during the plea, had characterised the Crown case. Defence counsel concurred with the characterisation.[6]

10 The applicant was not being sentenced for the offence of burglary or trespass but for a violent sexual assault upon a vulnerable woman into whose room he entered without warning or consent. As the judge stated, to find him in her bed and then to be raped and threatened would have been terrifying. It was entirely appropriate for her Honour to emphasize the importance of general deterrence as a sentencing consideration in the circumstances, or in other words to 'send a message' that those who engage in behaviour of this kind must anticipate a stern response from the Courts.

11 A further claim was made that her Honour fell into error in sentencing the applicant -

... upon the basis that you committed this offence not for a sexual motive but to assert your power over the complainant ... I consider it most unlikely that you were sexually attracted to the complainant.[7]

The complainant, ... a woman in her fifties, was also a resident in that house and had lived there for around two and a half to three years. It was not in issue that she had a chronic alcohol problem. However, she was able to look after herself, shop for herself and travel on public transport. The material revealed that after a period of drinking alcohol, she had on occasions walked around the house in a state of undress and at times she had collapsed in the shared bathroom area naked, having lost control of her bowels.

She gave evidence that you and she did not get along well. You dispute this but it was not in issue that you considered that she was an inappropriate person to live in that accommodation. ... In the photographs taken after she complained of the second incident, and in this court, she presented as a physically fragile woman small in stature who looked considerably older than her years.[8]

... Whether it [his motivation][9] be your disgust at her behaviour or to intimidate her to leave, I am unable to conclude on the material. However, on the material, I consider it most unlikely that you were sexually attracted to the complainant. A sad woman who was a chronic alcoholic and who looked considerably older than her years whom you came across from time to time in circumstances of little dignity. You are a young man who presents well physically with a reasonable intellect who was seeing an attractive young woman at the time.[10]

14 Although the applicant had, when interviewed by the police, told them then that he had, on occasions, fantasized about kissing the victim, it was apparent from his own statements that he objected to her presence in the house and wanted her to leave. Whether or not the judge directed her mind to the issue of the standard of proof when considering the possible motivations of the applicant cannot be clearly discerned from her remarks. Certainly, the view formed by her Honour - that it was far more likely that he was motivated by animosity than sexual attraction - was open on the evidence and this conclusion could well have been reached beyond reasonable doubt. It must be borne in mind that, not long before these events, the applicant had assaulted the victim, whom he called 'a bitch', by pushing her in the back causing her to fall into a wardrobe.

15 The question of motive was one to which her Honour, unsurprisingly, had given a deal of attention and would have inevitably arisen in the mind of any sentencing judge. Given the circumstances, we do not consider that this Court would be justified in inferring the reasonable possibility of error on the material before us, and bearing in mind the experience of the judge concerned. In any event, we fail to see a significant difference for sentencing purposes between these possible motivations. There appears to be implied in the contention the bizarre and totally unacceptable suggestion that a rape committed because the victim is perceived as sexually attractive is somehow less reprehensible than one which is perpetrated as an expression of power or animosity.

16 There being no force in either of the complaints, this ground must fail.

17 It was conceded on behalf of the applicant that -

... the victim was a vulnerable woman aged in her fifties at the time of the offences, who had what the learned sentencing Judge described as a 'chronic alcohol problem'. The learned sentencing Judge was understandably appalled by the behaviour of the applicant. An immediate custodial sentence was plainly within range.[11]

(a) the applicant had no prior convictions for sexual offences and had never previously been sentenced to a term of imprisonment,

(b) he was 22 years of age at the time of the offences and should have been dealt with as a youthful offender,

(c) ... that your unstable upbringing and the fact that you were sexually molested contributed to the abuse of alcohol in your early years and then cannabis before and during the time of these offences.[12]

19 It is apparent from her Honour's sentencing remarks that the judge was careful to address all relevant sentencing principles and factual considerations in her determination of individual appropriate sentences and the total effective sentence to be imposed.

20 With respect to matters personal to the applicant, she specifically adverted to each of those relied upon in this Court, stating (inter alia) -

There are a number of mitigating factors which I have taken into account. You have a prior criminal history which does not include any offences similar to these matters. The offences relate to possession of cannabis after a raid at your house when you were living in Templestowe and earlier street offences around a shopping area when you were playing truant from school.

I sentence you in the circumstances, as a person who prior to committing these offences, had no criminal history as a sexual offender or as a person who breaks into other people's homes. I have given considerable weight in your favour to your age. You were born on 20 August 1982 and are 24 years of age. I have also given weight to the fact that you have not been to prison before. Judges must give rehabilitation more weight in relation to sentencing a person of your age than an offender who is older. I also take into account the fact that you have been in custody since July 2006, albeit on remand for another matter and that as a sentencing judge, any sentence I impose must not be seen to be crushing. I take into account the sentencing principle of totality.[13]

21 On the plea, the prosecutor drew to the attention of the sentencing judge that, if she were to sentence the applicant to a term of imprisonment on each of the two counts of rape, he would fall to be sentenced on count 9 (threat to kill) as a 'serious sexual offender', and hence as a 'serious offender', within the meaning of s 6B of the Sentencing Act 1991. No issue was taken on this point, either at the time or on the appeal.

22 In the event, her Honour did impose a sentence of imprisonment on those two counts and, accordingly, turned to consider s 6D, which provides:

6D Factors relevant to length of prison sentence

If under section 5 the Supreme Court or the County Court in sentencing a serious offender for a relevant offence considers that a sentence of imprisonment is justified, the Court, in determining the length of that sentence -

(a) must regard the protection of the community from the offender as the principal purpose for which the sentence is imposed; and

(b) may, in order to achieve that purpose, impose a sentence longer than that which is proportionate to the gravity of the offence considered in the light of its objective circumstances.

23 Her Honour noted, quite correctly, that in accordance with s 6D(a), she was required in determining the length of the sentence (on the count of threat to kill) to regard the protection of the community from the applicant 'as the principal purpose for which the sentence is imposed'.[14] She also referred to the discretion conferred by s 6D(b), to impose a disproportionate sentence, and stated that she did not intend to exercise that discretion.[15]

24 The submission for the applicant in this Court was that the protection of the community would be best served by the applicant's rehabilitation and that this consideration - together with his youth - pointed to a lower sentence than that imposed or, at least, a shorter non-parole period.

25 There is no doubt that the rehabilitation of an offender is likely to be conducive to the protection of the community against the risk of further criminal conduct by the offender. But there are other sentencing principles - in particular, just punishment, specific deterrence and denunciation of the conduct - which are also directed at protecting the community by minimising the risk of re-offending. How the object of community protection, made paramount by s 6D(a), is to be secured is - in the absence of any further statutory prescription - primarily the responsibility of the sentencing judge. In this case, the judge weighed all the relevant sentencing considerations in the balance in arriving at a disposition that does not itself suggest error.

26 Counsel for the applicant also argued that the non-parole period of seven years was 'high', given that the head sentence was nine years. He contended that, since the judge gave no reasons for her decision to fix such a long non-parole period, careful appellate scrutiny was warranted.[16] Senior counsel for the Crown, on the other hand, submitted that a head sentence of nine years with a non-parole period of seven was a 'conventional sentence', which was 'frequently imposed', and should therefore be regarded as within the range reasonably open to the sentencing judge.

27 A similar question was considered by the Court in The Queen v Merritt.[17] In their joint judgment, Vincent, Nettle and Kellam JJA said:

In our view the classification by counsel in this case of a non-parole period of 73 per cent of the head sentence as being 'unusually high' is of little assistance. The issue to be considered is whether in all the circumstances of the case, and of the offender, the non-parole period is capable of reasonable explanation or not. Obviously in circumstances where a sentencing judge has fixed a very long period between the non-parole period and the head sentence, or has fixed a very short non-parole period an appeal court will be much assisted by reasons given by the sentencing judge for fixing the non-parole period in question. However as is clear from the authorities, the failure to give such reasons does not speak of error. The question to be determined is whether in all of the circumstances it was reasonably open to the sentencing judge to fix such a non-parole period.[18]

28 Adopting that approach, we consider that it was reasonably open to the sentencing judge in the present case to fix a non-parole period of seven years. Senior counsel for the Crown identified a number of matters which explained the sentence imposed, namely: the victim was a particularly vulnerable person, and her life had been dramatically changed as a result of the offences; the rapes involved violence; there was a significant disparity in ages; and the applicant showed no remorse at any stage.

29 There is nothing in the sentencing remarks that is indicative of error. In our view, the individual sentences imposed, the orders for cumulation, the total effective sentence and the non-parole period fixed were available in the proper exercise of discretion.

[1] Presentment T01912005A. He also pleaded guilty to one count contained in a separate presentment of the possession of a drug of dependence (Presentment T01912005B). For this offence a fine of $100 was imposed. The applicant was sentenced as a serious sexual offender in respect of count 9.

[4] R v De Simoni [1981] HCA 31; (1981) 147 CLR 383; R v Medcraft (1992) 60 A Crim R 181; R v Newman & Turnbull [1997] 1 VR 146.

[5] R v Storey [1998] 1 VR 359.

[16] See, for example, R v VZ [1998] VSCA 32; (1998) 7 VR 693; DPP v Josefski (2005) 13 VR 83, 94 [43].

[17] [2008] VSCA 238, [24].

[18] See also The Queen v Alparslan [2007] VSCA 3 [23]-[24] (Kellam JA).