R v Vivona; DPP v Vivona [2005] VSCA 205

2 I also agree with the reasons for judgment of Harper, A.J.A. and to the proposed orders.

3 On 14 October 2004, following a plea of guilty to one count of rape committed on 17 November 2002, Luigi Vivona was sentenced by a judge of the County Court to twelve years' imprisonment. It was ordered that a minimum of ten years be served before the prisoner became eligible for parole.

4 Later in 2004, the same accused was again before the County Court. On this occasion, he pleaded not guilty to a series of offences committed on 12 July 2003: one count of aggravated burglary (Count 1), two counts of false imprisonment (Counts 3 and 4), two counts of armed robbery (Counts 5 and 6) and five counts of indecent assault (Counts 7-11). He also pleaded not guilty to an additional count (Count 2), which was an alternative to Count 1.

5 Vivona's trial on these matters commenced on 15 November. It concluded with his conviction on all counts save Count 2. A plea in mitigation was heard on 24 January this year; and on 7 February 2005 Vivona was sentenced on Count 1 to be imprisoned for seven years. On each of Counts 3 and 4, he was sentenced to two years' imprisonment; on each of Counts 5 and 6 to three years' imprisonment; and on each of Counts 7-11, to one year's imprisonment. It was ordered that each sentence so pronounced be served concurrently with each other such sentence. It was also ordered that 15 months of the total of seven years be served cumulatively upon the twelve years' imprisonment to which Vivona had, on the charge of rape, been

sentenced on 14 October 2004. His total effective sentence was, accordingly, thirteen years and three months. A new, single, non-parole period of eleven years and three months was fixed.

6 It is in these circumstances that Vivona seeks leave to appeal against his sentence for rape. At the same time, the Director of Public Prosecutions appeals against the sentences imposed in February. The Director's single ground of appeal is that the "sentence imposed" in relation to the ten counts on which a conviction was recorded "is manifestly inadequate." There are two grounds upon which Vivona bases his application for leave. First, that the learned sentencing judge who presided on the plea erred by failing to give sufficient weight to that plea; and secondly, that her Honour erred by imposing a sentence that was manifestly excessive in all the circumstances.

7 Vivona was born on 25 April 1969. He is accordingly now 36 years of age. When the rape the subject of this application was committed, on 17 November 2002, he was aged 33 years. The offences the subject of the remaining counts were committed (on 12 July 2003) when he was 34. He admitted, on his plea, 60 previous convictions from nine court appearances between 18 July 1986 and 29 January 2002. These included three counts of rape, one count of assault with intent to rape, two counts of detention for the purposes of sexual penetration, and one charge of indecent assault. Added to these were one count of robbery, one charge of each of burglary and recklessly causing injury, and 27 charges or counts of theft. His most recent substantive sentence of imprisonment before the matters with which we are concerned was imposed by the County Court sitting at Geelong when on 31 March 1994 he was sentenced to be imprisoned for seven years on one count of rape. A non-parole period of five years was fixed. In the result, however, parole was not granted, and Vivona remained incarcerated for the full term. In her sentencing remarks, the learned sentencing judge from whom this application for leave is taken noted the reason: the prisoner had declined to participate in a sex offender treatment program.

8 On the evening of Saturday 16 November 2002, the person who some hours later was to be raped by Vivona attended a club in Sunshine. Early the following morning she decided to walk home. During the course of this journey Vivona alighted from a vehicle which had pulled up behind her. She had previously seen and, the evidence suggests, spoken to him, at the club; but he was otherwise a stranger. Nothing in the evidence suggests that anything previously said amounted to any invitation of any kind from her to him. After leaving the vehicle, Vivona nevertheless made sexual advances to her which she rejected. He persisted to the point of forcing himself upon the victim despite her repeated and vehement protests. Penile penetration was effected. During this process Vivona held the complainant by the throat and pushed her head onto the ground. Meanwhile, neighbours heard the complainant calling for help. There was evidence before the sentencing judge that at least one of them formed the view that a rape was being committed. The police were contacted. When they arrived at the scene they found the complainant to be very distressed, with blood on her left hand, around her nose and throughout her hair. Vivona was arrested at the scene. He subsequently admitted the penetration, but denied that it was without the victim's consent.

9 Following his arrest, DNA obtained from Vivona was compared with DNA the source of which was a vaginal swab taken from the victim. In the words of the sentencing judge, "... the result was that it would be expected that it would be at least 98 million times more likely than not that the DNA obtained from the complainant's vagina came from [Vivona]... ." When this evidence is placed alongside the circumstances of the arrest, and the partial admissions which Vivona later made to the police during his record of interview, the case against him becomes very strong indeed. If rape is often difficult to prove, this ought to have been an exception.

10 In her sentencing remarks, the judge referred to a number of what she described as aggravating features of the crime. I share her characterisation of them. The list included the fact that Vivona preyed on a vulnerable woman, a stranger to him, whom he knew was walking alone in the early hours of the morning. Not only did she not invite the attentions of her attacker, she made it unequivocally clear that she rejected them. Despite this, Vivona had unprotected sex with her while further assaulting her by holding her by the throat and thrusting her head into the ground.

11 All this occurred at a time when Vivona was subject to a sentence of three months' imprisonment, wholly suspended for two years. This sentence was imposed when, on 29 January 2002, he was convicted at the Magistrates' Court at Sunshine on one count of recklessly causing injury.

12 Other factors were included in her Honour's assessment. Vivona had, in her Honour's view, a full appreciation of the criminality of his behaviour. This was coupled with an anti-social personality disorder and an underlying tendency to sexual deviation, a lack of empathy for his female victims, and poor control of his sexual urges. In this light, the offence for which Vivona was to be sentenced by her Honour was seen by the judge as part of a pattern of similar grave offences against women. It was the third occasion on which he had attacked and raped a vulnerable female in a public place late at night, and the fourth conviction of rape that had been recorded against him (one of the three attacks resulted in two such convictions). In these circumstances, the prisoner came within the definition of a serious sexual offender in s.6B(2) of the Sentencing Act 1991; and the judge was therefore required by s.6D of that Act to have regard to the protection of the community as the principal purpose of the imposition of the sentence which her Honour was to pronounce.

13 Nothing put before us challenged her Honour's assessment of the prisoner's character. It is in my opinion an assessment that her Honour was on the evidence entitled to make. She was also entitled to consider, as she did, the seriously adverse impact which the crime had on its victim.

14 Her Honour considered Vivona's prospects of rehabilitation. She took some comfort from the prisoner's professed willingness, not exhibited earlier in his career, to participate in an appropriate sex offender treatment program. She nevertheless assessed the prisoner's prospects of rehabilitation as slim. They rested, she thought, on his successfully completing the program and making a real commitment to change. She added:

"I accept that you pleaded guilty at the earliest opportunity and I have taken that into consideration when sentencing you. You are entitled to a discount on the sentence to be imposed by reason of the provisions of the Sentencing Act. Your plea of guilty has facilitated the administration of justice by saving court time and the expense of trial and even more importantly, by your plea of guilty, you have spared the complainant what would have been the undoubted trauma of having to re-live what occurred as far as she knew in a courtroom situation. I accept that it is in the interests of the community that guilty pleas be encouraged from offenders. Additionally, your plea of guilty indicates a degree of remorse, albeit slight, in respect of the commission of this offence."

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.

[1] [2003] VSCA 190; (2003) 7 VR 128 at 133.

[2] [2004] VSCA 46 at [20].

[3] Sentencing remarks, 7 February 2005, at [9].

[4] Ibid, at [12].

[5] At [9].