Thornton v The Queen [2021] VSCA 325

1 Following a trial in the County Court of Victoria, the applicant was found guilty of one charge of intentionally causing serious injury and one charge of rape. His co-offender, Stephen Down ('Down'), was convicted of one charge of recklessly causing serious injury, and one charge of rape.

2 After a plea that was presented on his behalf, the applicant was sentenced to a total effective term of nine years and six months' imprisonment, with a non-parole period of six years and nine months,[1] constituted as follows:

Causing serious injury intentionally, s 16 Crimes Act 1958

Rape, s 38(1) Crimes Act 1958

3 The applicant seeks leave to appeal against the sentence on the following proposed grounds:

Ground 1: The sentencing discretion miscarried as a result of delay not being taken into account as a matter of mitigation.

Ground 2: The learned sentencing judge erred in sentencing on the basis that failure to use a condom reflected a complete disregard for the physical welfare of Mr Duncan in terms of the possibility of sexually transmitted disease.

Ground 3: The learned sentencing judge erred in aggravating the sentence imposed by reference to an aggravated burglary with which the applicant had not been charged or convicted.

Ground 4: The sentences imposed on charges 1, 3, the order for cumulation, the total effective sentence and non-parole period are all manifestly excessive.

4 Save for making an order which corrected the pre-sentence detention declaration, leave to appeal was refused by Kaye JA on 3 March 2021.[2] His Honour's reasons will be referred to as the 'Leave Reasons'.

5 The applicant has now elected to have the application determined by the Court constituted by at least two judges pursuant to s 315(2) of the Criminal Procedure Act 2009. Although the applicant was represented by counsel at the time he made his application for leave,[3] he was self-represented when he first made his election. However, after seeking and obtaining an adjournment,[4] the applicant obtained the assistance of pro bono counsel who appeared on his behalf at the substantive hearing of his renewed application before this Court.

6 At the commencement of the hearing, counsel made submissions in support of proposed grounds 1 and 2, but indicated that no submissions would be advanced in support of proposed grounds 3 and 4 (although they did not have instructions to abandon those proposed grounds).

7 We need not repeat the facts of the matter in detail, and will gratefully rely upon the following summary from the Leave Reasons:

4 The offences were committed by the applicant and Down on 11 February 2017, while they both were serving sentences of imprisonment at the Hopkins Correctional Centre in Ararat. The victim of the offences, Simon Duncan ('Duncan'),[5] who was 37 years of age at that time, was also serving a sentence of imprisonment at that centre.

5 In the afternoon on that date, Duncan, having received a visit from members of his family, proceeded to make his way to a cottage within the prison complex to visit some friends. As he was doing so, the applicant spoke to him, and asked if he had brought any tobacco into the prison, tobacco being a contraband item within the prison complex. Duncan responded that he had not brought any tobacco into the prison. Duncan then entered the cottage, sat on a couch and turned the television on.

6 About ten minutes later, the applicant and Down entered the cottage. Duncan was then sitting on the couch watching the television. About thirty seconds later, the applicant struck him on the face with a frozen water bottle. In response, Duncan turned around to face him. The applicant then struck Duncan at least four times with the frozen water bottle. The applicant told Duncan to clean himself up and pushed him to the kitchen, where Down gave him a tea towel to wipe his face. Duncan then made his way to the door of the unit. However, Down intercepted him, grabbed him and pushed him back into the lounge room. At that point, the applicant commenced punching Duncan with his fists some five or six times to the face. Down became involved and threw a number of punches at Duncan. In doing so, Down put his hand on Duncan's shoulders and pushed him towards the couch.

7 At that point, the applicant said something like 'Help me JD, I want to fuck him'. Duncan was then pushed half bent over the armrest of the couch. Down still had one hand on Duncan's shoulder and the applicant was behind Duncan, who was passing in and out of consciousness. While Down held Duncan's shoulder, the applicant pulled Duncan's pants down and sexually penetrated his anus against his will. Duncan believed that, in doing so, the applicant first used his hand and then his penis to penetrate him. In his evidence, Duncan said that the applicant was pushing himself onto him trying to get his penis inside him. Duncan said that he thought that the applicant penetrated him with his penis, but he also said (in his evidence) 'It may have been his hand. I believe it was his penis'.

8 Having penetrated Duncan, the applicant kept pushing himself onto Duncan for about thirty seconds. During that time, Down steadied Duncan with his hand on his shoulder. Eventually Down removed his hand from Duncan's shoulder and Duncan was able to move away from the couch. Shortly after, the door of the unit opened and other prisoners returned. Duncan was taken to the bathroom and cleaned up.

9 Duncan was subsequently conveyed to the Ararat Hospital for assessment and treatment. He was then transferred back to the prison. Some days later, he was conveyed to St Vincent's Hospital in Melbourne where he underwent treatment for his injuries. Those injuries included a number of complex facial fractures involving Duncan's left eye, cheekbone and nose. Those fractures required surgical intervention, in which plates and screws were inserted into his bone, with consequent scarring to his face. In addition, Duncan lost a number of teeth as a result of the assault. In his victim impact statement, Duncan described the heavy emotional and psychological toll that the assault and rape inflicted on him. Unsurprisingly, as a consequence, he has suffered anxiety and depression and post-traumatic stress disorder. A number of medications have been prescribed for him, and he has engaged with a counsellor.

8 In the Leave Reasons, Kaye JA summarised the personal circumstances of the applicant;[6] described the sentencing judge's reasons for sentence;[7] and set out the applicant's proposed grounds of appeal, and the parties' submissions in respect of those grounds.[8] We generally adopt as our own those parts of the Leave Reasons in which these matters were identified and described so as to avoid repetition.

9 This proposed ground relied upon the fact that Duncan first complained to the police on 11 April 2017, and made a formal statement on 21 April 2017, whereas the filing hearing did not take place until 18 June 2018, with no explanation for that delay. Following that hearing, a further eighteen months passed until the trial, and a further six months lapsed between the verdict and sentence (although some of this delay was on account of time being sought by the applicant to obtain further expert evidence).

10 The applicant initially complained that this delay deprived him of the opportunity to be granted parole in respect of a previous sentence imposed on 31 May 2016. However, this complaint was not maintained at the oral hearing. This was an appropriate stance to take given, as Kaye JA identified, the applicant became ineligible for parole as a result of the charges brought against him for the instant offending.

11 However, the applicant also complained that he lost the opportunity for part of the sentence for the instant offending to be served concurrently with the sentence that he was then already serving. He submitted that, as at the date of the offence, there was a period of approximately two years and nine months remaining on the existing sentence so that the lost opportunity for some concurrency was significant. He acknowledged that defence counsel had not referred to this delay before the sentencing judge, but defence counsel did rely on the principle of totality. He submitted that the delay in this case was a 'powerfully mitigating feature', and that the sentencing discretion miscarried as a result of it being omitted from consideration.

12 In oral submissions, counsel placed primary emphasis on the delay between the date of the offending and the filing hearing, which delay was said to be the responsibility of the prosecution. However, counsel ultimately accepted that the relevant period of delay commenced from the date that the victim made his formal statement to police, giving a total period of some 423 days of delay (from 21 April 2017 until 18 June 2018).

13 Given that this delay was unexplained and substantial, counsel submitted that it should have been given significant weight by the sentencing judge. The lack of assistance given to the sentencing judge by defence counsel and the prosecutor on the issue of delay was said to result in the applicant losing the opportunity for concurrency to which he otherwise would have been entitled. Counsel accepted that issues of specific deterrence, general deterrence, and denunciation were raised, but submitted that the error would have a real consequence on concurrency considerations, once the sentencing discretion is re-opened. There would be an impact on the total sentence, even if not a 'huge amount'.

14 Counsel for the respondent conceded that, although police were conducting investigations, the period of time between the report to police and the filing hearing was longer than would ordinarily be expected, and does not appear to have arisen as a consequence of the applicant's actions or omissions. In oral submissions, counsel suggested that the period lost for potential concurrency purposes was some four to five months. This was said to be constituted by the period from the time the previous sentence lapsed (20 September 2019) until the date of the trial (February 2020).

15 We are not satisfied that leave should be given in relation to this proposed ground for two reasons. First, we are not satisfied that the sentencing judge erred by failing to take into account the question of delay. Secondly, we are not satisfied that any different sentence would be imposed in any event.

16 In relation to the first matter, we note the findings made in the Leave Reasons as follows:

35 In his sentencing reasons, the judge noted the applicant's criminal history, and that he had spent nearly all of the previous eight years (apart from some twelve months) in prison.[9] His Honour noted that the applicant had spent 295 days in custody in relation to the instant matter,[10] thus recognising that part of the period, between the laying of the charges, and sentence, were spent by the applicant completing the previous sentence imposed on him in May 2016. In a different context, the judge referred to and acknowledged the principle of totality.[11]

36 Taking those matters into account, it may be safely concluded that in formulating the sentences in the present case, the judge was fully aware that the applicant had already spent a substantial period of time in prison. As I will discuss, the sentences imposed on the applicant, for each of the two charges, were well within range. In a broad sense, I do not consider that it could be reasonably submitted that the judge, in determining the sentences to be imposed on the applicant, did not properly take into account that the sentence that he was to impose on the applicant would add to the substantial period of incarceration which the applicant had already served in relation to his previous sentences.

18 However, if, contrary to this conclusion, there was an error, we consider that any potential for lost concurrency was not substantial. In identifying the relevant lost opportunity, there may be different ways to measure the precise period lost. However, we do not consider the respondent's calculation to be appropriate, since there can be no lost opportunity for concurrency after the time the previous sentence had lapsed. Rather, for reasons which follow, we consider that the respondent's calculation overstates the relevant lost opportunity for concurrency.

19 The relevant prosecutorial delay complained of was the 423 days between the making of Duncan's statement (21 April 2017) and the filing hearing (18 June 2018). However, this delay is not entirely 'unacceptable'. It is unlikely to be appropriate for charges to be laid immediately after receipt of a statement, without the undertaking of any investigation. Allowing for a reasonable period of two months between the making of the statement and the time of the filing hearing, the filing hearing may have hypothetically taken place in about June 2017. Based on the timelines applicable in this case thereafter (not the focus of complaint), the period between the filing hearing (18 June 2018) and the date of sentence (10 August 2020) was 784 days, or around two years (if the period is rounded down in favour of the applicant). The applicant would therefore have been sentenced in about June 2019 (being two years after June 2017), and would only have lost an opportunity for some three months of concurrency, ending September 2019 (which is similar to the time frame identified by Kaye JA of some one or two months[12]).

20 Whatever the precise quantum of months, any delay must also be assessed in context. As Kaye JA noted, there is no hard and fast rule that in each case delay must be taken into account as a mitigating factor.[13] The applicant relied on R v Merrett.[14] However, the delay in that case was constituted by almost three years between the commission of the offences and the laying of charges, as well as a further two years prior to sentence. There was also evidence of significant rehabilitation during the period of delay.

21 By way of contrast, the applicant in this case was already serving a term of imprisonment for serious offences at the time of commission of the instant offending. The following matters are also of significance:

• The assault was brutal, sustained, pre-meditated, and committed in company. It involved the use of a frozen water bottle as a weapon, and caused serious injuries to a vulnerable victim.
• The rape was also particularly serious, given that it was again committed in company, and while the victim was barely conscious.
• The offences occurred within a prison environment which means general deterrence and denunciation require appropriate weight.
• The applicant has a lengthy prior criminal history which includes offences of violence, engaging specific deterrence considerations.

22 We are therefore of the opinion that it is most unlikely that any substantial order for concurrency would have been made.

23 Proposed ground 1 is therefore not reasonably arguable, and leave to appeal must be refused.

24 As identified in the Leave Reasons, the key complaint surrounding proposed ground 2 is the following observation of the sentencing judge:

34 There is no evidence that a condom was used, reflecting a complete disregard for the physical welfare, in terms of the possibility of sexually-transmitted infections, shown to Mr Duncan.

25 In written submissions, the applicant submitted that it was not open to find that penetration with the penis had taken place or even been attempted, and that the sentencing judge made no conclusive finding as to with what Duncan had been penetrated. Despite this, his Honour had sentenced on the basis that there was unprotected penile penetration, and thereby committed a material error.

26 In oral submissions, counsel emphasised that the evidence did not permit the conclusion that there was penile penetration such that the sentencing judge made an error in sentencing on this basis. The (correct) circumstances were said to be so materially different such as to warrant a different sentence.

27 A key issue which arises is whether, even if the evidence permits a conclusion that there was penile penetration, the sentencing judge actually made such a finding for the purposes of sentencing the applicant. As well as para 34, there are two passages of the Sentencing Reasons which are relevant to this issue.

28 First, at para 8 the sentencing judge records the evidence of Duncan as follows:

According to Mr Duncan, you did get your penis inside him, though in evidence before the jury, Mr Duncan said 'It may have been his hand. I believe it was his penis.'

29 Secondly, at para 20 the sentencing judge records what occurred 'in accordance with the jury's verdict' as follows:

Whilst Mr Duncan was coming in and out of consciousness, and after unsuccessfully attempting to escape, you then brutally raped your substantially incapacitated victim, by anally penetrating him with either your hand or your penis.

30 The respondent concedes that no direct finding was made that the applicant penetrated the victim with his penis. We accept this concession as correct. Paragraph 20, in particular, suggests that the sentencing judge did not actually find that there was penile penetration.

31 In the light of this (correct) concession, the sentencing judge erred in finding that the failure to use a condom was an aggravating feature. His observation was also clearly intended to be limited to penile penetration (and not the applicant's failure to wear protection on his hand, as suggested by the respondent).

32 However, notwithstanding this error, we are of the opinion that leave to appeal on proposed ground 2 must be refused. That is because, having regard to the serious nature of the offence of rape - which, as we have said, was committed in company while the victim was barely conscious - we consider that there is no reasonable prospect that the Court of Appeal would impose a less severe sentence than the sentence imposed by the sentencing judge for that offence.[15] In all the circumstances, the sentence of seven years and six months' imprisonment was very moderate.

33 We also respectfully agree with the following observations of Kaye JA in the Leave Reasons:

50 Further, and in any event, if the judge did proceed on the erroneous basis that the failure of the applicant to use a condom reflected a complete disregard for the physical welfare of Duncan, I consider that if leave to appeal were granted on that basis, the Court of Appeal would be likely to dismiss the appeal on the basis that no different and lesser sentence would be warranted. The judge correctly concluded that the rape was accompanied by two other serious factors. First, the offence was committed by the applicant in company in circumstances in which Duncan was powerless to prevent the rape. Secondly, the rape followed the brutal assault inflicted on Duncan by the applicant and Down, the consequence of which he was substantially incapacitated at the time of the rape. Those two factors, taken together, fully justified the judge's conclusion that the rape '... must be viewed as a serious example of the crime of rape'.[16]

34 For the reasons given by Kaye JA,[17] proposed ground 3 is without substance. The sentencing judge did not 'aggravate the sentence' by reference to an uncharged aggravated burglary. There is no evidence that the applicant and Down entered the cottage as trespassers and therefore the offence of aggravated burglary was not committed.

35 For the reasons also given by Kaye JA,[18] it is not reasonably arguable that the sentence imposed by the sentencing judge was manifestly excessive. The matters we have highlighted already[19] suggest that the sentences imposed were well within the range. The two year cumulation order was also moderate given the different character of the two offences.

36 The application for leave to appeal will be refused.

37 The Court records its gratitude to counsel who acted for the applicant pro bono and assisted their client - and the Court - with submissions of a high quality.

[1] DPP v Thornton [2020] VCC 1214 ('Sentencing Reasons').

[2] Thornton v The Queen [2021] VSCA 39. Kaye JA noted that the declaration by the sentencing judge of 295 days pre-sentence detention was incorrect, and that there were in fact 325 days between the lapse of previous sentences and the date of sentence in the present case. This was accepted by the respondent, such that Kaye JA made an order correcting the pre-sentence declaration.

[3] Written submissions were filed on his behalf by counsel.

[4] The hearing was adjourned by order made on 24 August 2021.

[8] Ibid [3], [27]-[31] (proposed ground 1), [43]-[44] (proposed ground 2), [52]-[53] (proposed ground 3), [56]-[60] (proposed ground 4).

[14] [2007] VSCA 1; (2007) 14 VR 392.

[15] Criminal Procedure Act 2009 s 280(1).