Rootsey v The Queen [2018] VSCA 108

1. [The applicant] was born on 2 September 1971. On 21 May 1988 the [applicant] was 16 years of age and resided at [an address in Glenroy], with his mother ...
2. ['TVH'], (the complainant) was born [in 1963] ...

1. On Friday 20 May 1988, at approximately 8 pm the complainant attended at the Meadow Inn Hotel on Sydney Road Fawkner with her boyfriend, ['DK'], and a couple of friends. Sometime late in the evening they left the venue. The band was still playing as they left.
2. They then had an argument in the car park at the venue and consequently [DK] stormed off alone in a southerly direction along Sydney Road. The complainant followed him a short time later hoping to catch up with him. However the complainant lost sight of him and decided to keep walking home.
3. As the complainant approached the intersection of Sydney Road and Box Forrest Road, Glenroy, she was approached by the [applicant] who asked her for the time. The complainant told him it was about 12:55 am. He then asked the complainant for directions to the Glenroy shops. The complainant and the [applicant] were not known to each other.
4. The complainant gave him directions and continued walking along Sydney Road and then turned right into Box Forrest Road. She walked across the railway crossing, and was grabbed from behind by her hair and left arm by the [applicant] and pushed onto a grassed area next to a cyclone fence. He told her that she was going with him and that he had a knife and that she was to do what she was told.
5. He then pushed her up against the cyclone fence and told her to climb over the fence. A struggle ensued and the [applicant] forcefully sat her down onto the grassed area. She pleaded with the [applicant] to let her go as she had to get home to her young daughter. He again threatened her to [sic.] and reminded her he had a knife.
6. He then pulled her to her feet and led her west along Box Forrest Road. She was asking him to let her go whilst he kept hold of her left arm. Moments later he pushed her onto the grassed area near the driveway to an organization called the Yooralla Spastic Centre, Glenroy and forced her to lie on her back, with her head up against the cyclone fence.
7. He then pulled her top up under her chin, and pushed her bra up exposing her breasts. She was pleading with him to stop. He began to suck the complainant's nipples. He told her to take her jeans off, he then spread her legs apart with his leg and undid the button on her jeans. She took her right leg out from her jeans and he removed her underwear. She told the [applicant] that she was having her period, and he told her he didn't care and pulled the tampon out from her vagina.
8. He then undid his jeans and told her to put his penis into her vagina. She took his penis and placed it between her legs and he then pushed his penis into her vagina hard and this caused her pain. While he was raping her he was kissing her on the chin and told her she 'better make this good'. She was continually crying and he told her to keep quiet and she would not get hurt.
9. He eventually removed his penis, got up on his knees and began to pull up his jeans. The complainant stated while doing this he stopped suddenly and appeared to be listening for something. The [applicant] told the complainant to shut up and to get dressed. She put her underwear and jeans on, pulled her bra down and her top on. She was sitting on the grass and could hear some people in the distance talking.
10. He pulled her up by the arm and onto the footpath. She noticed three people walking towards them on Sydney Road. The [applicant] began to pull her to walk quickly along the road away from the people. She told him that the people were friends of hers, he said he didn't care and that he had the knife. He then told her she was coming down a side street with him. At that moment she pulled away from him and ran towards the group of people walking on Sydney Road. He then fled the scene.

1. The complainant was conveyed to the Royal Women's Hospital that morning of 21 May 1988, and was examined by the Police Surgeon Dr Stephen Jelbart. Certain medical exhibits were collected by Dr Jelbart during the examination of the complainant. These exhibits, including the tampon and the blood sample, were handed to D/S/C Laurel Walker at the conclusion of the examination.
2. On 24 May 1988 the medical exhibits were conveyed to the Forensic Science Laboratory by Detective Walker.

1. On Thursday 11 February 2016 the complainant viewed a photo board containing an image of the [applicant] and 11 males of similar physical appearance to the [applicant] dating back to 1988. The complainant did not identify the [applicant] during this viewing.

1. On Wednesday 16 March, 2016, the [applicant] was interviewed by police at Sale, Victoria. The [applicant] stated he couldn't recall the incident saying he did have a really good recollection of those years. He then exercised his right to silence.
2. At the conclusion of the record of interview, a reference 'Suspect Sample' in the form of a buccal swab was obtained voluntarily from the [applicant] by D/S/C Kieman.
3. The 'Suspect Sample' was lodged at the Victoria Police Forensic Services Centre at McLeod by D/S/C Kieman on 23 March 2016 for comparison with the DNA profiles taken from the complainant's medical exhibits.

1. Spermatozoa were detected on microscopic slides made from two samples from separate places on the complainant's tampon. These samples were subjected to DNA analysis, which were conducted by Forensic scientist Kate Outteridge at the Victoria Police Forensic Science Centre. Blood was detected on the tampon. The sperm fraction from each sample showed a single source DNA profile with it being 100 billion times more likely if the [applicant] was the source of the semen. The non-sperm fraction from each sample showed a mixed DNA profile from two contributors; with the complainant as an assumed contributor, it is 100 billion times more likely if the [applicant] was a contributor to the DNA.

7 At the time of committing the instant rape, the applicant had no prior convictions. He does, however, have subsequent convictions for rape. Hence, on 12 February 1990, on two charges of rape - one penile-vaginal and one oral - which had occurred on 12 August 1989, the applicant was sentenced in the County Court to a Community Based Order of 12 months' duration, with a condition that he perform 40 hours of unpaid community work.[2] In the course of his sentencing remarks on that occasion, the judge said:

You are at the threshold of your adult life, and there is much before me to suggest that it may be, if you have learnt your lesson, a useful and productive life, and one from which society, as well as yourself, will derive benefit. Even with so serious an offence as rape, courts have a natural reluctance to expose to the corrupting and corroding influence of a prison young people in whom can be discerned qualities worthy of fostering.

8 Notwithstanding the sentencing judge's optimism on that occasion for the applicant's prospects, the applicant has amassed extensive subsequent convictions, albeit for non-sexual offences.[3] As a matter of principle, convictions which occur both prior to,[4] and subsequent to,[5] an offence for which a person is to be sentenced are relevant to the imposition of sentence, subsequent convictions affecting the credit that might otherwise have flowed to the person to be sentenced for having lived a law abiding life in the period between the crime and sentence.[6]

9 In the present case, however, despite the subsequent commission of another rape (or rapes), the judge did not see the necessity for specific deterrence to be given significant weight. He said:

Notwithstanding your subsequent conviction in 1990 in respect of two counts of rape, one count of vaginal rape and one count of oral rape upon the same victim, I am satisfied given the absence of any further offending of this type by you in the intervening period that the concept of the need to deter you from this type of offending specifically should not be accorded significant weight.

10 Legislation in force at around the time of the applicant's offence provided that, for the purposes of the criminal law, a 'child' was a person under the age of 17 years at the time of the alleged offending, but who was under 18 years at the time of being brought before the court.[7] Thus, given that the applicant was aged 16 at the time of the instant rape, had he been charged before he turned 18, he would probably have been dealt with in the Children's Court. Although one cannot predict with any certainty the sentence that he would have received, it is likely that, had his offending attracted a period of detention, it would almost certainly have been spent in a youth training centre[8] (which was a markedly different regime to imprisonment).

11 As formulated, the first ground of appeal asserts that the judge 'erred by sentencing the applicant on the basis that he is an appropriate vehicle for general deterrence'. It is plain, however, that the judge did moderate general deterrence as a sentencing factor based on the applicant's youth at the time of offending. Thus, in his reasons for sentence he observed:[9]

In fixing your sentence I am satisfied that your age at the time of your offending and your history of being a victim of sexual offending operate so as to reduce your moral culpability and also to reduce the influence which the concept of general deterrence should be accorded in fixing your sentence.

12 The proper approach in cases similar to the present was discussed in Boland.[10] In that case, the appellant had been convicted of indecent assaults on his sister, committed between 1977 and 1982, when the appellant was aged between 13 and 19 years. Nettle JA (with whom Ashley and Dodds-Streeton JJA agreed) said:[11]

... Decisions of this court in R v Nutter[12] and R v Better[13] recognise that where offences which have been committed while an offender is a child or immature and are not prosecuted until many years after the event, there is good reason to mitigate penalty, or at least to do so where the offender has achieved a significant degree of rehabilitation and there has been no further offending. Although such an offender falls to be sentenced as an adult, common sense and fairness dictate that the assessment of the nature and gravity of the crime, and of the offender's moral culpability, take into account that what was done was done as a child, or as a person of immature years, and not as an adult or a person of greater maturity. Counsel for the appellant is also correct that general deterrence ordinarily has a lesser role to play in the sentencing of children and immature young people than in the case of mature adults, and that it is significant that the appellant has not re-offended in more than 24 years.

13 It may be observed that, although he has no further sexual offending beyond the subsequent rape for which he was sentenced in February 1990, it cannot accurately be said that the applicant has achieved significant rehabilitation and been guilty of no further offending. Indeed, in a pre-sentence report obtained by the judge in contemplation of the possibility of a community correction order ('CCO') being imposed, the author described the applicant as presenting a high risk of further offending in a general manner.

14 In this State, because of the operative legislative regime, general deterrence is excluded from consideration in the sentencing of children.[14] General deterrence continues to have relevance, however, to the sentencing of adults for offences committed as children, albeit that 'common sense and fairness' dictate that any assessment of the nature and gravity of the crime, and of the offender's moral culpability, must take into account that what was done was done as a child, and not as an adult or a person of greater maturity. Thus, the sentencing judge was correct, in our view, to 'reduce the influence which the concept of general deterrence should be accorded', without altogether excluding it as a sentencing factor.

16 In addition to the fact that the applicant was a child at the time of the offending, the applicant's counsel relied on a number of matters in mitigation.

17 Specifically, counsel relied on the fact that the applicant had been the victim of a sexual assault while he was at boarding school, aged 15, that assault having had enduring consequences for the applicant (including recourse to drugs and alcohol). Counsel also relied on the fact that the applicant had pleaded guilty, thereby indicating an acceptance of responsibility and a willingness to facilitate the course of justice.

18 Relying on a psychological report of Dr Dion Gee, dated 24 May 2017 (Exhibit B), it was submitted that a sentence of imprisonment would weigh more heavily upon the applicant than a person in normal health. Dr Gee expressed the following opinions:

In my opinion, [the applicant] does not currently present with an enduring psychotic illness (e.g., schizophrenia), although demonstrates psychopathology suggestive of an underlying - presently active - mood disorder; and continues to display significant deficits in his ability to effectively regulate cognitive, emotional, and behavioural states in an adaptive manner. Specifically, and despite being in receipt of antidepressant medication, [the applicant] meets the Diagnostic and Statistical Manual of Mental Disorders-5 (DSM-5: American Psychiatric Association, 2013) criteria for moderate Major Depressive Disorder: with mixed features (296.22 [F32.1]). [The applicant's] chronic history of substance use - of both alcohol and illicit drugs - highlights a significant dysfunctional association; especially given substances appear to be an important means of self-regulation, and have been complicit in his aberrant behaviour. Specifically, [the applicant] fulfils the DSM-5 diagnostic criteria for a moderate Alcohol Use Disorder (303.90 [F10.20]) and moderate Opioid Use Disorder (304.00 [F11.20]). Seemingly underpinning the foregoing, [the applicant's] clinical picture demonstrated significant levels of trauma pathology; with him currently meeting the DSM-5 criteria for an enduring Posttraumatic Stress Disorder (309.81 [F43.10]) emerging out of those abusive and traumatic experiences of late adolescence.

Coupled with the above pathology, and accepting the potential for a degree of diagnostic overshadowing, [the applicant] advances a significant disturbance in personality functioning; meeting Diagnostic criteria for an Antisocial personality disorder with sadistic and narcissistic features. ...

19 Dr Gee further expressed the view that the applicant's 'impaired mental functioning would see incarceration weighing more heavily on him than on that of a person in normal mental health'. The applicant 'would present with an increased risk of a further deterioration in mental state following sentencing (with a likely exacerbation of his depressive illness, further embedding of his trauma sequelae, the possible re-emergence of suicidal ideation/intent, and continuation of his physical/psychological avoidance behaviour to manage trauma)'.

20 Furthermore, as to the risk of reoffending, Dr Gee assessed the applicant as presenting 'at most a Moderate (if not tending toward Low-Moderate) risk of reoffending sexually in the future'.

21 When dealing with a contention that a sentence is manifestly excessive, the issue for this Court is not whether its individual members would, if sentencing at first instance, have imposed a different sentence to that imposed by the sentencing judge. This Court's intervention is warranted only if the sentence under consideration is plainly - not merely arguably - too severe, so that it may be concluded that it is wholly outside the range of sentences open in the proper exercise of the sentencing discretion. As Young CJ observed in Kenny:[15]

In order to make good a submission that the sentences passed are excessive, it is essential for an applicant to show that the sentences are manifestly and not merely arguably excessive. Such a submission is not one which is capable of a great deal of elaboration. As the majority of the court said in Williscroft's Case,[[16]] to which reference has been made during the course of argument, the imposition of a sentence is in the last resort an individual sentencing judge's instinctive synthesis of the various factors involved, and when application is made to this court for leave to appeal on the ground that a sentence imposed in the court below is excessive, the approach of the members of this court must, I think, necessarily be the same. Each member of the court instinctively synthesises the relevant considerations and, having done so, considers whether in all the circumstances he is able to say that the sentence imposed is so obviously excessive that there must have been some miscarriage in the trial Judge's discretion.

22 Synthesising all relevant factors - including the applicant's early plea of guilty, his age at the time of offending and his mental impairment - we are not persuaded that the sentence imposed was altogether outside the range of those open in the sound exercise of the sentencing discretion. Although the objective gravity of the offence, and the applicant's moral culpability, must be viewed through the prism of the applicant's youth and immaturity, the circumstances of the offence were, as we have said, disturbing. Making proper allowance for the reduced role of general deterrence, and for the limited role of specific deterrence, in the exercise of the sentencing discretion, taking into account the need for denunciation, and paying due heed to the applicant's antecedents and their impact on his prospects of rehabilitation (which the judge viewed 'with considerable caution'), we are unable to conclude that the sentence is manifestly excessive.

24 The application for leave to appeal against sentence must be refused.

[1] Crimes Act 1958, s 45(1). At the time that the offence was committed, the maximum sentence was 10 years' imprisonment.

[2] On the hearing in this Court there was a dispute as to whether the judge ordered 40 or 400 hours of community work. Nothing of importance to the present application, however, turns on this.

[3] Findings of guilt and convictions between the years 1988 and 2015 include: theft of a motor vehicle (1988, 1995); possession and use of a drug of dependence (1991); driving whist disqualified (1992, 1993, 1995, 1996, 1999, 2001, 2002, 2004, 2013, 2015); handling stolen goods (1992); threatening to inflict serious injury (1993, 1995); possessing a pistol (1993); burglary and theft (1995, 1998, 2015); trafficking a drug of dependence (1996); armed robbery and reckless conduct endangering life (1998); and various drink driving, traffic, family violence, property and 'street' offences.

[4] Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465; R v O'Brien and Gloster [1997] 2 VR 714; Weininger v The Queen (2003) 212 CLR 629; R v Bui; R v Beedar (2002) 224 LSJS 286; R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566.

[5] R v Poulton [1974] VicRp 85; [1974] VR 716; R v Kane [1974] VicRp 90; [1974] VR 759; R v Rumpf [1988] VicRp 55; [1988] VR 466; R v Bui; R v Beedar (2002) 224 LSJS 286.

[6] R v McInerney (1986) 42 SASR 111, 113.

1. [7] Children's Court Act 1973, s 3(1); Children and Young Persons Act 1989, s 3. Under current legislation, in the case of a person who is alleged to have committed an offence, a 'child' is a person who at the time of the alleged commission of the offence was under the age of 18 years but of or above the age of 10 years; but does not include any person who is of or above the age of 19 years when a proceeding for the offence is commenced in the Court: see the definition of 'child' in the Children, Youth and Families Act 2005, s 3(1).

[8] The present equivalent being detention in a youth justice centre: see Children, Youth and Families Act 2005, ss 412, 413.

[10] R v Boland [2007] VSCA 242; (2007) 17 VR 300.

[11] Ibid 304 [16]. See also Sherritt v The Queen [2015] VSCA 1, [34]-[35] (Priest JA).

[12] Unreported, Court of Appeal, Charles and Callaway JJA and Vincent AJA, 8 November 1995.

[13] [2003] VSCA 71 per Charles, Buchanan and Vincent JJA.

[14] CNK v The Queen [2011] VSCA 228; (2011) 32 VR 641; Webster (A Pseudonym) v The Queen [2016] VSCA 66; (2016) 258 A Crim R 301.

[15] R v Kenny (Unreported, 2 October 1978, Vic, CCA). See also DPP v Karazisis [2010] VSCA 350; (2010) 31 VR 634, 662-3 [127] (Ashley, Redlich and Weinberg JJA).

[16] R v Williscroft [1975] VicRp 27; [1975] VR 292, 300.