15 Vivona now submits, through his counsel, that her Honour was in error in assessing his degree of remorse as "slight". It is, he contended, an error that vitiates the sentence. Vivona pleaded guilty at the first opportunity, he had accepted responsibility for what he had done, and he had demonstrated a commitment to participation in a sex offender treatment program. This was in stark contrast to his position on and following the last occasion on which he was before the County Court (in March 1994, in Geelong). He had then pleaded not guilty and, on the basis that his conviction was wrong, had subsequently refused treatment. Before us, it was submitted on his behalf that the contrast necessarily gives rise to the inference that he is now, and was at the time he was sentenced by her Honour, remorseful. Counsel for Vivona described as cynical the Crown's contention that an inference equally open was that, this time, the prisoner did not wish to deprive himself of the opportunity of parole.
16 Counsel also relied heavily on the undoubted significance of a plea of guilty. By s.5(2)(b) of the Sentencing Act, a plea of guilty and, if it is made, the stage in the proceedings at which the offender's intention to make it is indicated, must be taken into account on sentence. This is so whether or not the plea is accompanied by indications of remorse in addition to those that, ordinarily, are encompassed within, or evidenced by, it. In the words of Eames, J.A. in R v Tasker,[1] "pleas of guilty are ... worthy of a significant sentencing discount even if the only factor worthy of being given particular weight was the avoidance of expense and inconvenience of a trial." Consistently with this, Coldrey, A.J.A. said, in R v Taing,[2] that practitioners must be able to assure their clients, and their clients must be able to accept, that "any purported sentencing discount is real and not illusory."
17 The magnitude of the discount will nevertheless be affected by the degree of remorse demonstrated by the particular offender. While serial offenders may of course suffer as deeply from remorse as anybody else, a sentencing judge may, before accepting that such an offender is as remorseful as he or she would have the judge believe, require a greater degree of satisfaction from them than from others. In this case, for example, her Honour was constrained to consider the question of remorse not only against a history of sexual offences against women, but also bearing in mind that, on sentencing Vivona in Geelong on 31 March 1994, the then sentencing judge expressed the view that the prisoner had "no respect or regard whatsoever for women." Her Honour was also entitled to take into account the fact that no remorse was evident during Vivona's interview with the police after his arrest. His position then was that what he did was consensual.
18 The proposition that Vivona is remorseful rests on his plea of guilty, the acceptance of responsibility that that entails, and on his willingness to participate in sex offender programs. These matters must indeed be taken into account. But Vivona relies on nothing else as evidence of his true state of mind. Any attempt accurately to assess the strength of the totality of the evidence on this point could not avoid an assessment of the strengths (and weaknesses) of the prosecution case with which Vivona was confronted, the contrast between the prisoner's present remorse, if any, and his earlier attitude towards women, and the possible influence on his mind of prospects of parole. When all the relevant factors are taken into account, her Honour's conclusion that in this case the prisoner's remorse was "slight" was in my opinion open to her. She was, accordingly, entitled to frame an appropriate sentence on that basis, bearing in mind the principles enunciated in R v Tasker and R v Taing.
19 The maximum penalty for rape is 25 years. This reflects the fact that the crime is among the most serious of all anti-social acts. It necessarily involves an affront to the dignity of the victim. It often involves much more than that; and the affront itself can vary from the very serious to the outer limits of degradation. This rape was attended by some of the worst elements of the offence, and was committed by a man who had already demonstrated contempt for the interests of others and a narrow but intense concentration on the satisfaction of his own. His record was one which militated against leniency, and her Honour was bound to regard the protection of the community from Vivona as the principal (but of course not the sole) purpose for which the sentence was imposed. The prisoner had previously demonstrated that he was a person from whom the community required protection. Her Honour was in my opinion entitled to decide that, with no more evidence of a reduced need for protection than a plea of guilty and some slight remorse, 12 years' imprisonment with a minimum term of ten years before the possibility of parole was, after having proper regard to that plea, an appropriate sentence.
20 For these reasons, the application of Luigi Vivona for leave to appeal against the sentence imposed upon him on 14 October 2004 should in my opinion be dismissed.
21 I would, on the other hand, uphold the Director's appeal. The ten counts upon which the prisoner was on 19 November 2004 found guilty arose out of a series of criminal acts committed during the course of a single, unauthorised entry by Vivona into a unit in Yarraville only some 500 metres from the prisoner's then place of residence. Two female Japanese nationals occupied the unit. The prisoner gained entry at about 2.00 am on Saturday 12 July 2003 by pretending to be police. His face was covered with a white cloth, and he was wearing latex gloves. He was armed with a knife. From the moment of his entry, during which one of the victims had a finger cut by the knife, both his victims were terrified of him. He bound the hands of each woman behind her back, and placed tape around the mouths of each. One had her ankles taped, the other her legs. Both were indecently assaulted: each had her breasts and pubic region touched and a nipple squeezed. Clothing was in each case re-arranged to expose flesh and facilitate the assaults. The prisoner left after demanding money and taking $450 in cash and a mobile telephone from one of the women, and $50 in cash and a mobile telephone from the other.
22 His Honour's sentencing remarks were brief. He recounted some of the evidence, the effect of which, in his Honour's words, was to demonstrate that Vivona's "attendance at the unit with the knife and duct tape was premeditated and predatory and that the aggravating feature about the burglary was an intent to commit an indecent assault."[3] This conclusion was in my opinion justified. It necessarily led to the result that the aggravated burglary fell into clause 1(a)(xviii) of Schedule 1 of the Sentencing Act and so into the definition of a "sexual offence" in s.6B(1) of that Act. The prisoner himself was then and is now a "serious sexual offender" within the meaning of that expression in s.6B(2) because, not being a young offender, he has been convicted of two or more sexual offences for which he has been sentenced to a term of imprisonment. To this extent, the position that obtained when Vivona was sentenced on 14 October 2004 remained the position when he was sentenced on 7 February 2005, as it remains the position today: the Court must regard the protection of the community as the principal purpose for which the sentence is to be imposed.
23 If, in order to achieve that purpose, the Court is of the view that a sentence longer than that which is proportionate to the gravity of the offence considered in the light of its objective circumstances is appropriate, the Court may impose such a sentence. In this case, his Honour declined to do so "on the circumstances of [the] case and having regard to the sentence of [her Honour the sentencing judge on the conviction for rape] and the principle of totality".[4]
24 I have no quarrel with his Honour on this point. A sentence longer than that which is proportionate to the gravity of the offence may only be imposed if required for the protection of the public. If that protection can be attained by the imposition of a proportionate sentence, then proportionality must be preserved. In this case, his Honour erred (as it seems to me) not because the sentence he thought appropriate was disproportionately long but because it was disproportionately short. In my opinion, the prisoner has demonstrated that he is a real threat to the community. If when sentenced following his conviction for rape he had demonstrated "slight" remorse, when sentenced on the charges that arose out of his invasion of the Yarraville unit he "displayed no remorse at all", as that sentencing judge said in his sentencing remarks.[5]
25 The implications for the protection of the community are plain. I do not think that his Honour had adequate regard to them. The result is a series of sentences some of which (those imposed in respect of Counts 1 and 7-11) are in my view individually manifestly inadequate; and when it was ordered that all sentences be served concurrently with each other and that a mere 15 months be served cumulatively upon the sentence which Vivona is presently serving on the count of rape, that inadequacy became, in my opinion, even more stark.
26 I am influenced in reaching these conclusions by my disagreement with his Honour's categorization of the offences the subject of Counts 7-11 as not being "sexual offences" within the meaning of clause 1(a)(ii)(A) of Schedule 1 of the Sentencing Act. As his Honour observed, every indecent assault has elements of degradation and humiliation, but none qualify as a sexual offence for the purposes of the Schedule (and therefore for the purposes of sentencing a serious sexual offender) unless "immediately before or during or immediately after the commission of the offence and at, or in the vicinity of, the place where the offence was committed, the offender ... did an act which was likely seriously and substantially to degrade or humiliate the victim, whether or not ... that act constituted or formed part of the indecent assault".
27 The judge did not consider that the use of tape to immobilize and silence the victims met this criterion. Nor, in his Honour's opinion, did "the circumstances of the indecent assaults themselves, which were committed in private." But in the case of the events at Yarraville in the early morning of 12 July 2003, entry was effected as each victim stood in vain resistance in the doorway of her place of residence. Each was threatened, gagged and bound. One was forced into a bedroom, the other into the bathroom. The clothing of each was deliberately re-arranged to facilitate the assaults. All this, taken with the assaults themselves, seems to me to be the actions of a man who had utter contempt for his victims, and who, in dealing with them accordingly, seriously and substantially degraded and humiliated them.
28 I would re-sentence the prisoner as follows: on Count 1, to nine years' imprisonment; on each of Counts 3 and 4, to two years' imprisonment (that being the sentence imposed by his Honour); on Counts 5 and 6, to three years' imprisonment (again, that being the sentenced imposed by his Honour); and to two years' imprisonment on each of Counts 7-11. I would also vary the orders made below by ordering that the sentences on Counts 3, 4, 5, 6 and 7 be served concurrently with the sentence on Count 1, with the sentences on Counts 8-11 therefore being served cumulatively on Count 1 and on each other. I would order that the sentence of 17 years' imprisonment that is in my opinion appropriate in relation to the offences that were committed at Yarraville on 12 July 2003 be served concurrently with the sentence of 12 years' imprisonment imposed by her Honour on 14 October 2004. I would order that the prisoner serve a minimum period of 14 years' imprisonment, commencing on 14 October 2004, before becoming eligible for release on parole.