Stevens v The Queen [2012] VSCA 192

1 I will ask Bongiorno JA to deliver the first judgment.

2 At the November 2011 sittings of the County Court at Geelong, the appellant, Matthew Keir Stevens, was found guilty by a jury of a number of offences in each of two trials. The trials were concerned with offences committed on 22 November 2007 and 14 April 2010 respectively. In respect of the first offending in time, he was convicted of one charge of aggravated burglary (charge 1) and one charge of indecently assaulting MC, an 18yearold woman (charge 2). In respect of the second episode of offending, he was convicted of three charges of indecently assaulting CT (charges 4, 6 and 7) and one charge of threatening to kill CT (charge 5).[1] CT was also a young adult female.

3 The first episode of offending occurred when the appellant entered a house in a Geelong suburb in the early hours of the morning with the intention of committing a sexual assault. He entered the bedroom of the victim, got onto her bed, took down his tracksuit pants and exposed his penis to her. He put his hands under the bed clothes and touched the victim on her pubic area or genitalia. That woke her up. She pushed his hand away and saw that he was lying on her bed masturbating. He then left the house and, although he left a fingerprint, he was not matched to that fingerprint until some years later. The offending led to one charge of aggravated burglary and one charge of indecent assault, of both of which he was convicted.

4 The second episode of offending was similar. It occurred in another Geelong suburb in a house shared by three young women. The appellant entered the house in the early hours of the morning through an unlocked door and then entered the victim's bedroom. She woke and got up from her bed. She was grabbed by the

appellant who threw her onto the bed and got on top of her. He engaged in what she described as 'dry humping' and, when she tried to see his face using the light from her mobile phone, he threatened to kill her. At some point, he put his hand down on the victim's pubic area underneath her underpants. He then grabbed her hand and put it on his erect exposed penis. She pushed him off and he ran from the house. This offending gave rise to a charge of aggravated burglary, of which the appellant was acquitted, three charges of indecent assault, of which he was convicted, and one charge of making a threat to kill, of which he was also convicted.

5 On 7 December 2011, the appellant was sentenced by his Honour Judge Mullaly as follows:

6 In reaching the sentences which he did, the sentencing judge took into account the gravity of the appellant's offending, the frightening nature of it for his victims and the effect of it on them as described in their victim impact statements. His Honour also took into account the appellant's personal circumstances, which included an intellectual disability (he has an IQ of 65), a history of sexual abuse at the hands of his stepfather (who was sentenced to a long term of imprisonment), his diagnosed psychiatric and psychological problems, the fact that he had substanceabuse problems, his age, his prior criminal history, which was not insignificant, and his prospects of rehabilitation, which his Honour regarded as uncertain. The sentencing judge explained his reasons for the orders for cumulation that he made and discussed the application of R v Verdins[3] principles having regard to the appellant's intellectual disability.

7 The appellant sought leave to appeal his sentence on two grounds: that the sentencing judge erred in his application of the principle of totality, resulting in an excessive sentence, and that, of itself, the sentence was manifestly excessive. On 28 March 2012, I granted Stevens leave to appeal on both the totality ground and the ground of manifest excess.

8 The argument put on behalf of the appellant in this Court with respect to totality referred to the orders for cumulation made by the sentencing judge. It criticised those orders as resulting in excessive cumulation, not so much because of the cumulation between the two episodes of offending but because of the cumulation within each of those episodes. The argument put was that, with respect to the first episode, cumulation of 50 per cent of the sentence imposed in respect of the indecent assault upon the sentence for the aggravated burglary (which was only committed in order to commit the indecent assault) was excessive. With respect to the second episode, the argument was that this offending may be properly described as the one course of conduct, which should have attracted the presumption of concurrency, leading to concurrent or almost concurrent sentences.

9 After this appeal had passed the leave stage, the Crown realised that the sentencing judge had not referred to the serious offender provisions of the Sentencing Act 1991 when he imposed Stevens' sentence. It sought leave to add further arguments to its case opposing the appellant's appeal but conceding that the sentencing had erred in failing to apply the provisions of ss 6D and 6E of the Sentencing Act 1991 in fixing Stevens' sentence on charges 6 and 7 on the indictment ― two charges of indecent assault of which he was found guilty.

10 In fact, careful scrutiny of the indictment upon which the appellant's two trials were conducted shows that he became a serious sexual offender, not as the Crown contended in its Supplementary Response to the Appellant's Written Case, but after being convicted of and sentenced for the aggravated burglary and indecent assault in his first trial. The aggravated burglary was a 'sexual offence', being an aggravated burglary falling within the description contained in cl 1(1)(xviii) of sch 1 to the Sentencing Act 1991 ― an aggravated burglary in circumstances where the offender entered the building or part of the building as a trespasser with intent to commit a sexual or indecent assault. Accordingly, Stevens should have been sentenced as a serious sexual offender in respect of the four offences upon which he was convicted at his second trial ― three charges of indecent assault and one of making a threat to kill. Making a threat to kill is a 'violent offence' by virtue of cl 2(c)(iv) of sch 1 to the Act. By s 6B(3)(c) of the Act, a 'relevant offence' in relation to a serious sexual offender is a sexual offence or a violent offence. The application of these statutory definitions to s 6D creates a situation where, in Stevens' case, he fell to be sentenced as a serious sexual offender for each of the offences of which he was convicted at his second trial. Thus, the presumption as to cumulation of sentences enacted in s 6E of the Act applied to each of the sentences imposed in respect of those offences.

11 Upon the opening of this appeal in this Court, the prosecutor sought to add the matters to which reference has been made above to his argument. He was given leave to rely on those further matters, at which point the Court warned the appellant that although the Crown's pointing out of the sentencing judge's error meant that there was now established error in the sentencing process requiring him to be resentenced, the Court was not bound to reduce that sentence. It could increase it but would not do so unless it first warned the appellant of the likelihood of that occurring.

12 Section 6D of the Sentencing Act 1991 establishes a special sentencing regime for serious offenders (as defined in the Act). Because at the time Stevens came to be sentenced for the four offences of which he was found guilty at his second trial he had already been convicted and sentenced to terms of imprisonment in respect of two relevant sexual offences, he was a 'serious sexual offender' as defined in s 6B(2) of the Act. As such, the Court sentencing him was required to apply ss 6D, 6E and 6F of the Act.

13 Section 6D of the Act provides that if a sentencing court considers a gaol sentence justified for a relevant offence committed by a serious sexual offender, it must regard the protection of the community as the principal purpose for which that sentence is imposed. It may, if necessary, even impose a disproportionate sentence to achieve that purpose.[4] Section 6E of the Act makes any relevant sentence imposed on a serious sexual offender cumulative on any other sentence to be served by the offender unless the court orders otherwise and s 6F requires the court to record serious sexual offenders' status as such in its records.

14 These provisions, and the relationship between them and the totality principle, were explained by McHugh, Gummow and Hayne JJ in R H McL v The Queen:[5]

In modern times, s 569(1) of the Act[6] is likely to have its most frequent operation in circumstances where the sentencing judge has compressed sentences by reason of the totality principle. There would be less occasion for the Court of Appeal to exercise its powers under that sub-section if sentencing judges imposed the sentence appropriate in respect of each conviction and then gave effect to the totality principle, where that principle did require a reduction of the cumulative effect of the sentences, by making concurrent any sentence or sentences that conflicted with the totality principle.

The need for judges not to compress sentences is especially important where the accused person is a 'serious sexual offender' within the meaning of s 16(3A) of the Sentencing Act, and similar provisions. Section 16(3A) gives effect to a legislative policy that serious offenders are to be treated differently from other offenders. It was plainly intended to have more than a formal effect, which is the effect it would frequently have if its operation was subject to the full effect of the totality principle. Given the terms of s 16(3A), the scope for applying the totality principle must be more limited than in cases not falling within that section. The evident object of the section is to make sentences to which it applies operate cumulatively rather than concurrently. The section gives the judge a discretion to direct otherwise. But the object of the section would be compromised and probably defeated in most cases if the ordinary application of the totality principle was a sufficient ground to liven the discretion. Since the relationship between s 16(3A) and the totality principle does not arise in this appeal, it is enough to say that sentencing judges need to be astute not to undermine the legislative policy inherent in s 16(3A) by applying the totality principle to the sentences as if that section (or s 6E which replaced it) was not on the statute book.

15 In the instant case, the appellant complained that the sentencing judge ordered too much cumulation of the sentences imposed in respect of the offences of which he was found guilty in each of his trials. In particular, his counsel submitted that the three charges of indecent assault of which the appellant was found guilty in his second trial should have been regarded as part of a single criminal episode attracting total concurrency in respect of the three sentences imposed. He also argued that the cumulation of 12 months of the sentence imposed for the indecent assault of which the appellant was found guilty in his first trial on the four-year sentence for the aggravated burglary which preceded it was excessive.

16 Had this Court been viewing this case on the same basis as the sentencing judge did ― that is to say, without regard to ss 6D and 6E of the Sentencing Act 1991 ― it may well have found some substance in these submissions. It was because there might have been substance in them that Stevens was granted leave to appeal. However, now having considered the relevant provisions of the Sentencing Act 1991 and the comments of McHugh, Gummow and Hayne JJ referred to, it is clear that the sentences passed by the sentencing judge and the orders for cumulation which his Honour made were fully justified. They represent a substantial amelioration of the

prima facie statutory position, which would have produced a head sentence of 11 years and nine months' imprisonment.

17 In order for the appellant to succeed on an appeal such as this, the Court must be satisfied not only that there is an error in the sentence first passed but also that a different sentence should be imposed. As no different sentence ought to be imposed in this case, this appeal should be dismissed. The failure by the sentencing judge to comply with s 6F of the Sentencing Act 1991 should be corrected by our ordering that the record of the County Court be amended to reflect the fact that the appellant fell to be sentenced as a serious sexual offender in respect of charges 4, 5, 6 and 7 on the indictment on which he was tried.

20 The order of the Court is that, in respect of charges 4, 5, 6 and 7, the record of the County Court be amended to reflect the fact that the appellant fell to be sentenced as a serious sexual offender. Otherwise the appeal is dismissed.

[1] Although there were two trials, there was but one indictment. The two charges relating to the offences against MC ― charges 1 and 2 ― were severed from the indictment and tried separately.