R v Welsh [2005] VSCA 285

2 In my opinion the appeal should be dismissed for the reasons stated by Vincent, J.A.

3 In early 2003, [V], a 38 year old female advertised that she had two rooms available for rent in her home, where she lived with her four year old son. She interviewed and accepted two persons, one of whom was the appellant, as tenants of these rooms. Both took up occupancy shortly afterwards.

4 On Sunday 11 April 2004, V requested the appellant to move out of the house.[1] Her stated reason for termination of the arrangement was that during the previous three weeks, his behaviour towards her had become increasingly verbally aggressive. He, in turn, later asserted that tension had developed between them by reason of V's failure to repay money that she had borrowed from him. Whatever may have been the precise circumstances, he ceased occupancy of his room on 23 April 2004.

5 Being required to quit the house produced an extraordinary degree of anger in the appellant and he commenced to harbour ideas of exacting vengeance upon her. He was working for a bricklayer at Mackinnon at the time, and talked about this possibility with a fellow employee, Lachlan James Tihema, in a series of conversations that, according to Tihema, commenced about two weeks prior to 7 May 2004; that is, almost immediately after leaving the house. The two men reached agreement that the appellant would rape V and that Tihema would capture the events on videotape. The appellant then borrowed a video recorder from his employer for this purpose, stating that he wanted to send a recording of himself to his family in New Zealand.

6 V, who had no inkling of any of this and who regarded the appellant as a friend in spite of their earlier difficulties, spoke regularly to him on the telephone. Consequently, he was well acquainted with her movements and domestic arrangements.

7 In the week leading to 7 May, the appellant continued to communicate with V and, on the day of the offences, she asked him to visit her that evening to discuss a property venture in which they were both interested. This presented an ideal opportunity for the appellant to implement his plan. [2]

8 Accordingly, at around 2 p.m., on 7 May, Tihema received a telephone call from him, stating that the appellant would pick him up in about half an hour. A short time later, Tihema was collected from an hotel and the two men drove to Dandenong in a vehicle that the appellant had rented, apparently for the occasion. They went first to a disposals store where the appellant purchased two balaclavas, two bundles of nylon rope and gloves, and then to a nearby "adult" store where he bought several items, including an 18 inch double ended dildo, a vibrator, personal lubricant and, what was called a "domination set" containing handcuffs, a latex hood and a mouth gag. They returned to the disposals store and exchanged the balaclavas, earlier purchased, as the appellant decided that his would not adequately conceal his facial features. With the appellant driving, the men next travelled to a Dandenong supermarket where they obtained cigarettes, alcohol and shaving equipment.

9 So equipped they proceeded to V's home. In the course of this journey, the appellant gave Tihema instructions concerning what would happen once they were inside the house. The appellant was to be referred to as "Mick" and he directed Tihema to do most of the talking, as the appellant had a distinctive New Zealand accent. They also discussed such matters as the putting of their cigarette butts in their pockets after each cigarette smoked in the house, as they did not want to leave any forensic evidence that might result in their identification.

10 At approximately 4.50 p.m., the appellant parked the rental car some distance from V's house to which they walked, equipped with the video camera and the various items that they had purchased. The appellant was aware that V was due home shortly for, as already mentioned, he had spoken to her earlier that day. They entered the house, using a front door key that the appellant had had cut when residing at the premises and had retained without V's knowledge.

11 V arrived home at approximately 5.15 p.m. On entering her front door, she was confronted by a male wearing a balaclava and carrying a knife (Tihema). She was grabbed by the shoulders, shaken and then forced to the floor. She was told, "Don't fight, don't scream, otherwise you'll get this". The latex bondage hood was then placed over her head. V could see nothing, but became aware that there was someone else present when she heard another male voice (that of the appellant) coming from the lounge room. The two males had a conversation and she heard the other male say, "Tie her up". V was instructed to get up from the floor. As she was doing so, she was struck heavily across the back of the head. Her hands were then tied tightly, using the nylon rope that the appellant and his confederate had brought with them and she was walked into the lounge room.

12 V was experiencing breathing difficulties at this stage; there being only two small apertures in the bondage mask and she was asthmatic. She informed her attackers of this problem and asked for her Ventolin spray. Tihema retrieved it from her handbag, lifted up the bottom of the hood and sprayed Ventolin into her mouth. V later told the investigating police that she made every effort to remain calm. Among her concerns throughout the episode was the possibility that the stress of the situation and the mask she had been forced to wear may have induced an acute and dangerous asthmatic attack.

13 In an attempt to ensure that she remained unaware of the appellant's participation in what was taking place, Tihema asked V whether she was expecting anyone to call at the house. She replied that she was, and that his name was Tony. She was asked about his physical size, as if this person was a stranger to Tihema, and then pushed over to a dining table, located in a room adjacent to the lounge room. On reaching the table, her legs were tied to its legs, using more of the nylon cord, and she was positioned so that she was lying face down across the table top. Her hands were then placed above her head and tied to the legs at the other end, on either side.

14 I do not propose to set out in detail that part of the truly horrifying violation and abuse which V was able to describe and to which she was then subjected over a period of approximately an hour and forty-five minutes. She was repeatedly penetrated, orally, vaginally and anally, with the appellant's fingers, the dildo, the vibrator and the appellant's penis. On some occasions, she was simultaneously penetrated vaginally and anally with different combinations of them. The appellant licked her vagina with his tongue as some of these actions were taking place. Her body was turned and re-tied a number of times to facilitate the appellant's engagement in different forms of violation.

15 At one point, her hand was placed on the appellant's penis as he attempted to force her to masturbate him. Most of her clothing was cut. She was tormented with a knife or scissors being drawn over her naked body, and humiliated by having her pubic hair cut with scissors. Her pleas of distress and pain were ignored, or she was told to "shut up" by Tihema. At one stage, when she complained that she was in pain as a consequence of the anal insertion of the dildo, the appellant struck her about the face with it. On another, he took it from her anus and forced it into her mouth.

16 She told the police:

"It has happened so many times, they all blur into each other. I was turned on both my right and left side at different times and raped vaginally and anally so many times that I lost count. I kind of went into a blank a little bit, just to kind of survive."[3] (My emphasis)

Unsurprisingly, having been rendered both totally helpless and blind with the hood over her head, she feared for her life. She had no idea who her attackers were, how she had come to be chosen as the subject for this horrendous treatment or what would befall her.

17 The attacks stopped from time to time to enable the two men to rest, drink alcohol and smoke cigarettes. They eventually ceased when Tihema said to the appellant, who was at the time vaginally raping the victim with his penis whilst licking her breasts, "Come on Mick, hurry it up, we have been here long enough." The appellant then withdrew his penis and ejaculated over V's stomach.

18 Before they left, the two men set about ensuring that they collected or destroyed any evidence that might implicate them. This included placing V in a shower, still hooded and experiencing breathing difficulties. Soap was rubbed over her body and forced it into her vagina and anus with the appellant's fingers. She was dried with a towel and taken back to the lounge where she was left bound and gagged. As an act of further intimidation the appellant placed a note on a coffee table in the room which stated:

"You're on candid camera. Straight to the police and you're on the internet. Carl says hi".

19 Tihema took her mobile phone, but asked her who she would like called after half an hour to assist her. She responded "Tony" (referring to the appellant). The two men left at around 7.00 p.m.

20 Once she was certain that they had gone, V freed herself and removed the hood and gag. The telephone cord in the house had been cut, so she put on some clothes and ran across the road to a neighbour's home from which she contacted the police.

21 After engaging in some diversionary activity in an endeavour to ensure that suspicion did not fall upon him, the appellant returned to V's house. He anticipated that he would find her still bound and gagged and intended to present himself as a concerned rescuer and friend but, by that stage, the police were already present.

22 I need not address the investigation that ultimately led to the identification of Tihema as one of the perpetrators and then, following his admissions of responsibility, to the appellant.

23 This bald description of the terrible crimes committed upon V by the appellant and Tihema provides only the barest indication of the horror of the experience to which she was subjected and the nightmarish images with which she has been left, regrettably, I consider it can be safely predicted, for the remainder of her life. They are terrible to reflect upon and it is deeply saddening to contemplate the reality that anyone could display the viciousness and contempt with which she was treated.

24 The appellant was charged, on 9 May 2004, with a large number of offences, including 39 counts of rape and 8 of indecent assault. His co-offender was similarly charged on the following day.

25 After further proceedings and discussions concerning the preparation of an appropriate presentment, the appellant appeared before the County Court, on 13 December 2004, and pleaded guilty to one count of burglary (count 1), one count of common assault (count 2), one count of false imprisonment (count 3), one count of indecent assault (count 4) and six counts of rape (count 5 to 10)[4]. All save counts 1 and 3 were representative counts. I will return to the significance of that feature.

26 After hearing a plea in mitigation of penalty advanced by the member of counsel on behalf of the appellant and Tihema, the learned sentencing judge, on 17 December 2004, imposed the following sentences upon the appellant:

On count 1 - 5 years' imprisonment;

On count 2 - 4 years' imprisonment;

On count 3 - 7 years' imprisonment;

On count 4 - 7 years' imprisonment;

On count 5 - 20 years' imprisonment;

On count 6 - 20 years' imprisonment;

On count 7 - 20 years' imprisonment;

On count 8 - 20 years' imprisonment;

On count 9 - 20 years' imprisonment;

On count 10 - 20 years' imprisonment.

His Honour directed that the period of two years of the sentence imposed on each of counts 1, 2 and 3 was to be served cumulatively upon each other and upon the sentence imposed on count 5. This created a total effective sentence of 26 years, in respect of which, his Honour fixed a non-parole period of 20 years. His Honour declared that on counts 5 to 10, the appellant had been sentenced as a serious sexual offender and he made an order directing the registration of the appellant as a sex offender pursuant to section 11 of the Sexual Offenders Registration Act 2004.

27 Tihema, who pleaded guilty to the same counts, was sentenced by his Honour on the same day to a total effective sentence of 11 years' imprisonment with a non-parole period of 8 years and, in respect of counts 5 to 10, he was also sentenced as a serious sexual offender. There is no necessity to set out the individual sentences handed down in his case or the reasons for the disparity between the individual sentences and the total effective sentence imposed upon him and those handed down in the case of the appellant. There were very significant distinctions relating to their respective ages, personal circumstances, roles, level of culpability, the preparedness of Tihema to give evidence against the appellant, and Tihema's prospects of rehabilitation that had to be and were taken into account by the sentencing judge. They were clearly of a kind that justified the imposition of much lower penalties upon him than those required in the case of the appellant. No argument has been advanced in this Court that his Honour fell into error with respect to the application of the principle of parity of treatment, or the degree of disparity effected between the two offenders, and there is certainly nothing in his remarks or that can be implied from the differences in the dispositions ordered which suggests that he may have done so.

Grounds of Appeal

28 Having been granted leave to do so, the appellant seeks to have the sentences imposed upon him set aside on the grounds that:

"1. The learned sentencing judge erred in imposing sentences on each count of the counts that offended the principle of proportionality.

2. The sentences on each of the counts one to eleven are, in all the circumstances of the cases, manifestly excessive.

3. The total effective sentence of 26 years is manifestly excessive.

4. The non-parole period of 20 years is manifestly excessive.

5. The learned sentencing judge failed to give sufficient weight to the [appellant]'s pleas of guilty.

6. The learned sentencing judge erred in his findings of fact in the following ways:

(a) in finding that the [appellant] pleaded guilty because of the strength of the prosecution case;

(b) in finding that the [appellant] pleaded guilty because the co-offender Lachlan James Tihema indicated a willingness to give evidence against him;

(c) in failing to give weight to the appellant's acknowledgement of his involvement in the offences by statement to the police on 12 May 2004;

(d) by placing undue emphasis on what he said was the representative nature of the counts.

7. The learned sentencing judge failed to give sufficient weight to the totality principle of sentencing.

8. The sentence was crushing.

9. The learned sentencing judge erred in making a sex registration order against the [appellant]. In particular, there was no evidence that enabled his Honour to be satisfied that the [appellant] poses a risk to the sexual safety of one or more persons or of the community under section 11(3) of the Sex Offenders Registration Act 2004."

Ground 6

29 I turn, first, to the complaints set out in ground 6.

30 His Honour made direct reference, in his sentencing remarks, to the appellant's plea of guilty and his indication of preparedness to do so. He formed the view that the appellant had pleaded guilty not by reason of the presence of any sense of remorse, but by reason of what he recognised as the strength of the prosecution case and, in particular, the expectation that Tihema, who had already confessed, would give evidence against him (grounds 6(a) and (b)). These conclusions were clearly open in the circumstances, when regard is had to the nature of and motivation for the conduct in which the appellant engaged, the care that he evidenced both before and after the commission of his offences to ensure that he could not be identified as one of the perpetrators and the fact that his admissions were made only after he was aware that he had been implicated by Tihema.

31 With regard to the appellant's acknowledged involvement in the offences in his statement to the police, to which attention is drawn in ground 6(c), I observe that the appellant claimed to have set off for V's home in a drug affected state, intending to:

"[G]et this bitch now. One good feeling lesson. At this time I was only going to give her a bit of a clout."

This statement, intended to be of a self serving character and made to minimize the appellant's culpability, is revealing for evident venom. He said that his purchase of the items from the "adult" shop was spontaneous and that he had gone there to buy some pornographic videos. It is patently clear that, at the time of the interview, the appellant well appreciated that he was in an extremely difficult situation and that he was endeavouring to minimize his culpability and, specifically, the degree of calculated vindictiveness with which he had acted. He attempted disingenuously to create the impression that his engagement in sexual violence was not initially intended and that it occurred when, affected by drugs, he lost control. Although his Honour did not directly advert to this statement in his sentencing remarks, there is no reason to suppose that he did not have regard to it. In any event, I fail to see how it could possibly operate in mitigation of penalty to any significant extent in view of the circumstances in which it was made, its contents and tone.

32 There is nothing in the complaint that the sentencing judge placed undue emphasis upon the representative character of most of the counts (ground 6(d)). At one point in his sentencing remarks he stated:

"A representative count enables the offence to be seen in its full circumstantial context. An offender is not, by the loading of the sentence, to be punished for the represented offences, but the sentence for a representative offence may reflect the fact that it occurred in the wider context. Regard may be had to the adverse effects upon the victim of the whole of the conduct (per Batt, J.A., SBL ...). In other words, the whole of the circumstances relating to each count must be given proper effect and recognition for the purposes of imposing a just sentence, paying due regard to recognised principles of proportionality and totality (per Ormiston, J.A., SBL ...).

Not only must I not load the sentence in respect of a representative count by sentencing for a represented count, but I must not sentence twice for the same offence. For example, whilst I may bear in mind the unlawful imprisonment as part of the context in which a rape was committed, I must be careful not to punish twice for the unlawful imprisonment when sentencing for that rape and not punish twice for one rape when considering another rape, and so on."(Citations omitted)

His Honour was clearly conscious of the principles to be applied in sentencing for a representative count and concerned to avoid falling into error in this respect.

33 As he recognised, the fact that a count is designated as representative of a number of criminal acts of the same kind, but for which the individual has not been presented, can assume relevance for a number of purposes in the determination of an appropriate sentence for the crime charged[5]. Included among these is the significance which it may possess in the assessment of the level of criminality in the commission of the particular offence involved. Generally, the charged crime could not in that situation be viewed as an isolated event. It might therefore be reasonably perceived as less likely that the individual's behaviour was out of character, or precipitated by an unusual concatenation of circumstances and the inference that the perpetrator was fully appreciative of the nature and significance of his or her conduct might, on some occasions, be more easily drawn. Second, in a case such as the present one, the impact of the charged crime upon the victim may well be greater as a consequence of its occurrence against a background of other uncharged conduct affecting the same victim. Third, the fact that a crime has been committed in a context of other criminal behaviour of the same kind may indicate that there is a need for specific deterrence of the offender. Similarly, general deterrence and judicial denunciation may assume enhanced significance as sentencing considerations. And, of course, the fact that an individual has engaged in repeated criminal conduct may assume importance when considering the offender's prospects for rehabilitation.

34 I have not attempted to list exhaustively the considerations which can arise as a consequence of the designation of a count as representative (there may well be others) or to explore the dimensions of those to which I have adverted. As the sentencing judge pointed out, while the sentence imposed must relate only to the specific offence charged, a representative court enables that offence to be seen in its full circumstantial context. His Honour, by specific reference, made clear that he was also mindful of the need to have proper regard to the principles of proportionality and totality and to avoid the imposition of double punishment.

35 There is nothing in his remarks or the sentences imposed that suggest that he might have fallen into error in his assessment of the weight to be given to any of these matters.

Grounds 1, 2, 3, 4, 7 and 8

36 These grounds, expressed in different terms, contain the assertion that the individual sentences, the total effective sentence and the non-parole period fixed, all fall outside the range of those available to his Honour in the proper exercise of sentencing discretion.

37 I disagree. As counsel appearing on behalf of the Director of Public Prosecutions has submitted, the offending by the appellant was "at the extreme edge of gravity". It was described by the sentencing judge as:

"Offending, the like of which I have not seen nor heard. It is by margin one of the worst examples of such offending likely to be encountered in ordinary practice, to use the words of Vincent, J. in Mallinder[6]... . I say that taking into account inter alia the actual intention of the perpetrators, the precise activities in which you engaged, the total circumstances in which the offending was committed and its consequences."

38 This statement was not made by a member of the bench with limited experience in the criminal law but by a senior judge who had been dealing with such matters for a very long time. The appellant's counsel at the commencement of the plea hearing accepted that his client's offending was appropriately so described. All save counts 1 and 3 were of a representative character and, notwithstanding the appellant's plea of guilty and the absence of any prior criminal history, each of the rape offences individually merited the imposition of a sentence approaching the maximum available. There were no mitigating features whatever associated with any of them. The appellant's conduct involved considerable premeditation, the use of disguises and careful planning. These crimes were committed against a person who trusted him, in her own home, and were committed for the base motives of sexual satisfaction, the degrading and humiliation of the victim and for no better reason than that he was irate because he had been required to leave her house. They have had, and will continue to have, as I have indicated earlier, a very significant impact upon her, an effect that his Honour considered was intended. Finally in this context I observe that the learned sentencing judge was unable to detect the presence of any remorse in the appellant for what he had done. The sentences imposed upon each of the other counts were also appropriate in the circumstances.

39 Whilst the offences occurred within the context of a single incident, it must be borne in mind that a substantial number of quite separate crimes were committed, that the duration of offending was about 13/4 hours, during which period V was not only abused in the fashion described, but subjected to a continuing fear that she would be killed. That was clearly intended - for what other reason, it could be asked rhetorically, would she have been tormented by a knife or scissors? The approach of the learned sentencing judge in fixing individual sentences - as he did - reflecting the separate seriousness of each of them and then making moderate orders of cumulation to create a total effective sentence that could not be described as crushing did not offend against the principle of totality[7] and was entirely appropriate in the circumstances. Indeed he would have fallen into error had he done otherwise. I am unable to detect any error in his Honour's sentencing remarks, in the individual sentences imposed by him or in the total effective sentence or non-parole period fixed in this case.

Ground 9

40 The written submissions provided to the Court in support of the contention that his Honour fell into error in making an order under the Sexual Offenders Registration Act against the appellant contain the bare assertion that "there was no evidence to justify it".

41 This argument is entirely without merit.

42 It totally disregards the nature and motivation for the conduct in which the appellant engaged. The appellant nurtured, for about two weeks, the prospect and then engaged in carefully orchestrated acts of extraordinary sexual violence and depravity for what was for him obviously pleasurable both as a sexual experience and the exacting of vengeance. The inference that he is, and almost certainly will remain for the indefinite future, a danger to the community is, in my opinion, irresistible.

43 Mr Ian Joblin, a very experienced forensic psychologist, in a report tendered before the sentencing judge, expressed the opinion that the appellant "has very serious and concerning psychological problems". A little earlier, he stated that there were "ritualistic qualities" and "sadomasochistic elements" in the offences which provided "some degree of gratification and satisfaction" and which the appellant found "sexually pleasurable". The appellant had been found by the police in possession of a number of pornographic videos depicting sexual violence. Mr Joblin said in his report:

"I questioned Mr Welsh as to whether those videos provided him a blueprint for the offending. Mr Welsh emphatically denied that. He reported that the videos did not relate to the type of offences for which he is before this Court although that may conflict with the material. While he indicated they did not provide a blueprint for his offending, there may be some difficulty in accepting that."

44 I observe in this context, no oral argument was advanced on behalf of the appellant with respect to the significance of the matters mentioned in Mr Joblin's opinion and no challenge was advanced concerning his views.

45 In these circumstances, I consider that it would have been extraordinary had his Honour not made an order under the Act.

46 Accordingly I would dismiss this appeal.

- - -

[1] The other tenant had left in January 2004. He later told investigating police that the appellant had said, on a number of occasions, that he would like to have sex with V.

[2] The appellant was aware that V's son would not be present, as the little boy was spending the weekend with his father.

[3] T13.

[4] The maximum penalties available were:

Burglary - 10 years imprisonment

Common assault - 5 years imprisonment

False imprisonment - 10 years imprisonment

Indecent assault - 10 years imprisonment

Rape - 25 years imprisonment.

[5] See R. v. S.B.L. [1998] VSCA 144; (1999) 1 V.R. 706.

[6] Mallinder v. R. (1986) 23 A. Crim. R. 179 at 187.

[7] D.P.P. v. Grabovac [1998] 1 V.R. 664; R. v. O'Rourke [1997] 1 V.R. 246.