Torrefranca v The Queen [2021] VSCA 157

1 On 2 July 2019, the applicant pleaded guilty, before a judge of the County Court, to three charges of sexual assault,[1] and two charges of sexual penetration of a person with a cognitive impairment or mental illness.[2]

2 Each offence carried a maximum penalty of 10 years' imprisonment.

3 On 29 October 2019, the judge sentenced the applicant to a total effective term of 6 years and 9 months' imprisonment, with a non-parole period of 4 years, as follows:[3]

Sexual penetration of a person with a cognitive impairment

Sexual penetration of a person with a cognitive impairment

8 years' imprisonment with a non-parole period of 5 years

4 The applicant now seeks leave to appeal the sentence. For the reasons that follow, leave to appeal will be granted in respect of the first proposed ground of appeal, the appeal will be allowed and the applicant will be resentenced as set out at the end of these reasons.

5 The offending took place on the afternoon of 7 August 2018. The applicant was 62 years old. He was employed, on a probationary basis, as a disability support worker at a supported accommodation facility.

6 Shortly after arriving at the facility in the mid-afternoon, the applicant invited one of the residents, Ms Drying,[4] to accompany him to his office. Ms Drying was 26 years old. She suffers from an intellectual disability and cerebral palsy and is unable to walk independently.

7 The applicant took Ms Drying into his office and closed the door. Once they were both seated, the applicant began to unzip the vest Ms Drying was wearing. He placed a hand under her clothing and against her skin, and began to rub Ms Drying's back. He moved his hand to the front and rubbed her abdomen. He then moved his hand to her breasts and grabbed them, opening and closing his hand. After Ms Drying told him to stop, he did so (charge 1 - sexual assault).

8 Some minutes later, the applicant unfastened Ms Drying's belt and placed his hand beneath her underpants. He inserted his fingers into her vagina for one or two seconds (charge 2 - sexual penetration of a person with a cognitive impairment or mental illness). He then removed his fingers and stepped aside.

9 A short time later, the applicant lifted Ms Drying's top, placed his mouth on her left breast and sucked her nipple (charge 3 - sexual assault).

10 The applicant heard another resident, Ms Hawker, return to the facility and stopped what he was doing. Before leaving the office, he told Ms Drying that she should not tell anyone what had happened.

11 Ms Hawker was 40 years old. She suffers from an intellectual disability and cerebellar atrophy, as well as depression and psychosis. Among a number of other diseases and disorders, she suffers from congenital myopathy and muscle fibre disproportion. Like Ms Drying, she is unable to walk independently. She requires the use of a wheelchair.

12 Ms Hawker asked the applicant to help her shower. She required assistance with showering, and there was a documented procedure to be followed by the workers who provided that assistance. A hoist was used to place her onto a commode chair which was then wheeled into the shower. Ms Hawker was then largely able to wash herself independently. However, she was unable to reach some parts of her body and required assistance in washing those areas.

13 After the applicant had placed Ms Hawker in the commode chair and the shower commenced, Ms Hawker asked the applicant to help her wash her back and anal area. He put on a pair of gloves and began to do so using a small towel. He then moved the towel to her vagina, and 'played around with it'. Washing Ms Hawker's vagina was not part of the documented shower procedure (charge 4 - sexual assault).

14 The applicant then moved in front of Ms Hawker and spread her legs. He inserted his fingers in her vagina and moved them around four or five times (charge 5 - sexual penetration of a person with a cognitive impairment or mental illness).

15 Ms Hawker told the applicant not to touch her as she got out of the shower, and said to him that she needed a break. The applicant told Ms Hawker not to tell anyone else about what had happened because he could lose his job. He took Ms Hawker back to her bedroom.

16 Later that day, Ms Hawker and Ms Drying reported the incidents to another carer at the facility. The police were contacted. The applicant was arrested two weeks later, on 21 October 2018. In his initial interviews with police, he denied any wrongdoing.

17 The applicant was committed for trial in early March 2019. The trial was listed for August 2019. In April 2019, the results of DNA analysis of Ms Drying's clothing were returned. They provided extremely strong support for the applicant being a contributor to a mixed DNA profile taken from the breast region of Ms Drying's shirt.

18 On 25 June 2019, the matter resolved. The applicant pleaded guilty to the present indictment on 2 July 2019.

19 The judge characterised the offending as involving multiple violations of the sexual privacy and dignity of each disabled victim, albeit over a short span of time. The offending against Ms Drying was spontaneous and opportunistic. While similarly opportunistic, the separate and subsequent offending against Ms Hawker occurred after the applicant had recognised that he had offended against Ms Drying.[5]

20 The judge said that the offending was aggravated by a 'truly shocking' breach of trust against vulnerable victims.[6] She stated that, in respect of the charges of sexual penetration of a person with a cognitive impairment or mental illness, she had taken care to avoid double punishment, as being a support worker for the victim and therefore in a position of trust was an element of that offence.[7]

21 The offending was also aggravated, the judge said, by the applicant attempting to silence the victims by urging them not to report his offending.[8]

22 The judge described the distress and trauma which the offending had caused the victims and their families. There was a serious diminution in the quality of life of both women, and they had lost trust in their carers, upon whom they depend for their daily and intimate care.[9]

23 The judge acknowledged the applicant's guilty plea, which she considered to be indicative of remorse and of real utilitarian value.[10]

24 Turning to the applicant's personal circumstances, the judge described his upbringing in the Philippines, during which he was exposed to scenes of violence and murder. The applicant moved to Australia with his family after experiencing threats and harassment connected with his employment for foreign-owned companies. He subsequently worked as a security guard, among other roles. He had a long and successful work history. The judge observed that, as a compensatory response to his history of trauma, the applicant appeared to have sought jobs focused on helping others.[11] At the time of the offences, the applicant was in the process of retraining so that he could work in community services.

25 The judge noted the applicant's lack of any previous criminal history, and his prior good character, but stated:

This factor matters less given that you needed to have been of good character in order to be in the position of trust which you exploited in commission of the offences.[12]

Nonetheless, the judge considered the applicant's good character to be a matter of 'some importance' to which 'some mitigatory weight' attached. The judge summarised at some length a series of character references received on the applicant's behalf.[13] Among other things, those references spoke of the applicant's deep regret and remorse for his actions.

26 The judge acknowledged that the applicant presented with symptoms of adjustment disorder with depression and anxiety, as well as some features of post-traumatic stress disorder. The judge considered that, to some extent, the applicant's mental health challenges were reactive to his current situation, and the prospect of imprisonment. Nonetheless, she allowed for 'some mitigation' to reflect the fact that imprisonment would be more onerous for the applicant as a result.[14]

27 The judge also acknowledged that, notwithstanding the seriousness of the offending, the applicant had good prospects of rehabilitation and presented a low risk of sexual reoffending. Nonetheless, she considered that general deterrence was a prominent sentencing consideration, as was, to a lesser extent, denunciation and just punishment.[15] Further, as the applicant fell to be sentenced as a serious sexual offender, the judge was compelled to treat community protection as the primary sentencing purpose.[16]

28 There are three proposed grounds of appeal, as follows:

(1) The sentencing judge erred in failing to give full or adequate weight to the applicant's previous good character.

(2) In relation to charges 2 and/or 5, the sentencing judge erred by having regard to a fact:

(a) which was inconsistent with the plea resolution; and

(b) which would have constituted the more serious offence of rape.

(3) The individual sentences, orders for cumulation, the total effective sentence and non-parole period are manifestly excessive.

29 The applicant submitted that the judge erred by discounting the weight she would otherwise have given to the applicant's prior good character on the basis that he 'needed to have been of good character in order to be in the position of trust' in which he offended. It was submitted that the applicant's prior good character ought properly to have been a significant matter in mitigation.

30 Counsel submitted that the applicant's good character encompassed more than an absence of prior offending. It included his productive work history, contributions to his family and community, and the attributes described in an impressive array of character references. While it might readily be accepted that his lack of prior convictions was a prerequisite to his employment as a carer, there was no evidence that the position required something more.

31 In any event, it was submitted that the judge erred by diminishing the weight to be given to the applicant's prior good character on the basis that he exploited it in order to commit the offences, while also treating the applicant's breach of trust as an aggravating factor.[17] This was said to amount to double punishment. It was submitted that the breach of trust was impermissibly treated as both a matter in aggravation and a matter diminishing the mitigatory weight to be afforded to the applicant's prior good character.

32 The respondent contended that the judge appropriately characterised the applicant's prior good character as important and worthy of some mitigatory weight. The judge set out his personal circumstances, and the laudatory character references, at some length. Further, she took care to avoid doubly punishing the applicant for his breach of trust, expressly stating her intention to avoid double counting the applicant's breach of trust in respect of charges 2 and 5 because the applicant's position of trust was an element of those offences. Nonetheless, it was said to be appropriate - given the fact that the victims were entrusted to his professional care because of his prior good character, and the significant degree to which the applicant had broken the trust of the victims - that there be some reduction in the mitigatory weight to be given to the applicant's prior good character. So much, it was said, was appropriately accepted by the applicant's counsel on the plea.

33 It is well established that, if an offender is, leaving the offences for which sentence is being passed out of account, a person of good character, the sentencing judge is obliged to take that matter into account. The weight that must be given to prior good character will, however, vary according to all the circumstances of the case.[18] It may be diminished, for example, if (as in Ryan v The Queen), the good character was earned while acting in the very role in which the offending occurred. It may also be diminished if the offending involved breaches of trust.[19] But every case will depend on its own circumstances.

34 In Ryan, the majority in the High Court held that the sentencing judge had erred in placing no weight at all on the offender's prior good character. It was accepted, however, that the weight to be attached to that factor was significantly diminished, including by the breach of trust involved. The offender was a priest who offended in the course of his duties, over many years. The facts in Ryan, and the sentencing judge's treatment of prior good character, are very different to the present case.

35 An error closer to that alleged in the present case was identified by this Court in SD v The Queen. The offender was said to have exploited his prior good character to commit a sexual offence against his niece. The sentencing judge stated that, having done so, his prior good character weighed less heavily than in cases where there is no abuse of trust. This Court distinguished Ryan on the basis that the case was an isolated offence and the connections in Ryan between the offending, the offender's prior good character, and his position of trust, were absent. The Court said:

In our opinion, the sentencing judge erred in diminishing the weight to be given to the appellant's otherwise good character, and in finding that the appellant somehow exploited his good character in order to commit the offences. We agree with the submission of counsel for the appellant that her Honour's approach had the effect of punishing her client twice for the breach of trust - first by identifying that breach as an adverse sentencing consideration, and second by using it, inappropriately in the circumstances, to diminish the appellant's otherwise good character.[20]

36 The applicant here alleges the same error - treating the breach of trust as both an adverse sentencing consideration and a basis for diminishing the applicant's otherwise good character. Again similarly to SD, the applicant also submits that the judge was in error in finding that the applicant 'needed to have been of good character in order to be in the position of trust which [he] exploited in commission of the offences'.[21]

37 The applicant also relied on Wakim v The Queen.[22] The offender in that case had an extensive history of social work and community involvement for which he had been recognised by the award of an Order of Australia Medal. He came to know the complainant's family through a religious connection and offended after befriending them. The family were encouraged to trust the offender by his high regard in the community. The sentencing judge stated that less weight was to be given to the offender's good character because it had enabled him to secure the family's trust and had facilitated the offending. The respondent conceded on appeal that, since the offence was an isolated one, the judge had erred in giving less weight to good character. The Court upheld the appeal on a somewhat different ground which depended on the notion of double punishment. It said:

In cases concerning sexual offences against children, an offender is ordinarily entitled to have his sentence reduced by virtue of his previous good character. The weight to be given to that mitigating feature will depend on the circumstances of any given case. The sentencing discretion will miscarry if the weight to be given to a mitigating factor such as previous good character is discounted on the basis of features of the offending which have already been taken into account in aggravation of the penalty to be imposed. Such reasoning effectively doubly punishes an offender. An offender who commits an isolated sexual offence involving a child is not to be doubly punished by a court treating their breach of trust as an aggravating circumstance whilst also diminishing the mitigatory weight to be given to previous good character. We are of the opinion that in this respect the sentencing judge committed an error in her reasoning.[23]

We do not read this passage as being confined either to cases concerning sexual offences against children, or to cases where an offence is isolated. It would be anomalous if double punishment were forbidden in cases of an isolated offence, or involving children, but was permitted in other cases.

38 Two facets of the treatment of good character are in play here. The first is the extent to which the significance of prior good character is diminished where the offending has involved a breach of trust. Ryan shows that it may be very considerably diminished in the case of repeated offending closely connected with the context in which the good character was earned. Both SD and Wakim indicate that where that connection is absent and the offending is isolated, the diminution is likely to be much less.

39 The second aspect is the need to avoid double punishment. If good character has been diminished as a sentencing consideration by virtue of the offender's breach of trust, that breach of trust cannot also be taken into account in aggravation of the penalty to be imposed, and vice versa. This does not mean that good character 'cancels out' the breach of trust: the sentencing judge need not give equal weight to the aggravating impact of a breach of trust and to the offender's prior good character. The sentencing judge, as explained in the above passages, need only ensure the same breach of trust is not counted twice, so as to amount to double punishment.

40 In the present case, there was a dearth of evidence upon which to conclude that the applicant's good character enabled him to be in the position of trust which he exploited. But reading the sentencing remarks generously, in circumstances where the matter was not put in issue, it was open to the judge to reduce the weight afforded to the applicant's prior good character on the basis that it had assisted him to be in a position to commit the offences. Nothing in the cases to which we have referred indicates that this was in error.

41 However, in our opinion the judge did engage in the double punishment identified in SD and Wakim. She placed significant weight on the 'truly shocking' nature of the breaches of trust, stating that it aggravated the offending. But, as well as taking that very understandable course, she treated the applicant's prior good character as mattering less because it facilitated the breaches of trust. Being treated as an aggravating factor, the breach of trust could not simultaneously be treated as reducing the weight to be attached to the applicant's prior good character.

42 While the judge was careful not to treat as aggravating a feature of the offending that was a necessary element of the sexual penetration offences (namely, being in a position of providing treatment or support services to the victims), that is a different point. It is of course wrong to treat as an aggravating circumstance a feature of the offending which is a necessary element of the offence. It is not suggested that the sentencing judge fell into that error.

43 The respondent submitted that the applicant's argument impermissibly treated sentencing as a mathematical exercise. However, pointing to reasoning that involves double punishment does not entail a mathematical exercise. The applicant has established an error of principle in the sentence. While the case can be distinguished in many respects from the offending in SD and Wakim, it is the principle identified in those cases which needed to be applied in the present case.

44 For these reasons, despite the very careful and comprehensive nature of the judge's sentencing remarks, vitiating error has been established and the sentencing discretion is reopened. Before turning to that matter, we shall briefly address the remaining proposed grounds.

Proposed ground 2 - factual basis for sentencing

45 The applicant submitted that the judge erred by having regard to deposition material inconsistent with the plea resolution, which suggested that charges 2 and 5 were in fact cases of the more serious charge of rape.

46 At the plea, the following exchange occurred between the judge and counsel for the applicant:

HER HONOUR: And we see the existence of other factors of concern, if not of aggravation, such as the perseverance of conduct in spite of the protestation of impaired persons saying 'no'...

...

HER HONOUR: And of course [he] didn't stop himself, even after her protestations that he needed to stop sexually assaulting her.

COUNSEL: The first woman ... ?

HER HONOUR: Charge 4 to Charge 5.

COUNSEL: Yes.

47 Later, in the course of the prosecution's reply, the judge commented:

[T]hat's the expression I've written down. Seized opportunity as it arose, and then escalated, because in relation to both, it starts with the seizure of the opportunity, and then it escalates to a sexual penetration very quickly, sometimes in the context of protestations.

48 The applicant suggested that the references to 'protestations', to the protestation of 'impaired person_s_,' and to 'charge 4 to charge 5' indicated that the judge was referring not just to the protestation of Ms Drying which was contained in the prosecution opening and which she recorded in her sentencing remarks, but also to material contained in Ms Hawker's VARE.

49 That material formed no part of the plea resolution nor the prosecution opening. The applicant contended that it was incumbent on the prosecutor to inform the judge accordingly, and warn her that the material to which she was evidently referring was a part of the depositions to which she must not resort in sentencing.

50 The applicant accepted that the judge did not directly refer to this material in her sentencing remarks. However, it was submitted that the judge acknowledged in those remarks that she had had regard to matters developed in oral argument, which must be taken to have included references to deposition material that went beyond the prosecution opening. As a result, the sentencing exercise became untethered from the agreed facts.

51 It was said that there was therefore, at a minimum, a substantial risk that the judge had regard to facts establishing a lack of consent or reasonable belief in consent in assessing the seriousness of the sexual penetration charges. The judge had thereby infringed the principle in R v De Simoni, by which a person must not be sentenced for an offence with which they have not been charged.[24] It was properly conceded that this proposed ground was considerably stronger in respect of charge 5, as there was some relevant evidence of protestation preceding charge 2.

52 In our opinion, this ground is not made out. The sentencing judge made no reference in sentencing to protestations on the part of either victim other than as mentioned in the agreed prosecution opening. Indeed, the summary of the offending in the sentencing remarks closely reflected that opening. It has not been shown that the judge erred in having regard to the additional material mentioned in the plea hearing.

53 Leave to appeal should be refused in respect of this proposed ground.

54 The applicant submitted that, in all the circumstances, the sentences imposed were not reasonably open. It is not necessary to address this proposed ground, but it is convenient to outline the matters relied upon by the parties in so far as they inform the resentencing we must undertake.

55 The applicant's submissions focussed mainly on the orders for cumulation in respect of the offending against each victim. The degree of cumulation - 9 months for the sexual assaults against Ms Drying, and 6 months for the sexual assault against Ms Hawker - was said to be excessive, especially given the very brief duration of the offending against each of the victims.

56 The applicant submitted that the judge had mistakenly emphasised the applicant's breach of the trust of the community. It was said to be unjustified, if not 'hypocritical', to treat the applicant as if he were the holder of some kind of public office, when he was in fact a relatively junior contractor with little job security.

57 The respondent pointed to the shocking nature of the offending against two very vulnerable victims in quick succession, with accompanying attempts to silence them. Some cumulation was required, and the applicant fell to be sentenced on charges 3-5 as a serious sexual offender.

58 In light of our conclusion on proposed ground 1, we will refuse leave to appeal on proposed ground 3.

59 Leave to appeal will be granted on proposed ground 1 but otherwise refused. In relation to resentencing, it is necessary to take account of the matters that were before the sentencing judge, together with some intervening circumstances to which our attention was drawn by counsel for the applicant. In particular, the applicant was sentenced before the current COVID-19 pandemic. That has led to him being denied contact visits for a significant period. The availability of remote contacts has been limited and the applicant has been repeatedly unable to have face-to-face remote contact with his wife due to her work commitments. In addition, by virtue of being a serious sexual offender, the applicant has been prevented from having contact with child family members, even though his offending did not involve children.[25] All these matters were said to have made prison more burdensome for the applicant than might have been expected when he was sentenced.

60 In terms of resentencing, while the offending was very serious and involved grave breaches of the trust placed in the applicant by the victims and their families, we consider that the matters upon which the applicant relied point to sentences somewhat lower than those imposed by the sentencing judge. The fact that there were two victims calls for significant cumulation, consistent with the status of the applicant as a serious sexual offender in respect of the charges against Ms Hawker. However, account must also be taken of the fact that, with respect to each individual victim, the charged acts took place in quick succession as part of one overall sequence of offending, and cumulation in that context should be moderated accordingly.

61 We would add that we do not accept that it overstates the position to say that the applicant breached the trust of the community. The care of those unable to lead fully independent lives is a matter of real public importance and concern. It is to be expected that those relied upon to help such people to address the difficulties with which they live will at all times act conscientiously and respectfully. When there are egregious departures from that standard, as has occurred in this case, considerations of general deterrence, just punishment and denunciation will loom large in the sentencing process, reflecting those expectations of the community.

62 In the result, we will resentence the applicant in accordance with the following table:

Sexual penetration of a person with a cognitive impairment

Sexual penetration of a person with a cognitive impairment

63 We declare pursuant to s 6AAA of the Sentencing Act 1991 that, but for the applicant's pleas of guilty, we would have sentenced him to a total effective sentence of 7 years and 6 months' imprisonment with a non-parole period of 5 years.

[1] Crimes Act 1958 s 40.

[2] Crimes Act 1958 s 52B.

[3] DPP v Torrefranca [2019] VCC 1869 ('Sentencing Remarks').

[4] To avoid identifying the complainants, pseudonyms have been used.

[17] See SD v The Queen [2013] VSCA 133; (2013) 39 VR 487, 494 [31] (Ashley, Redlich and Priest JJA) ('SD').

[18] Ryan v The Queen (2001) 206 CLR 267, 278-9 [36] (McHugh J); see also 300-1 [112] (Kirby J), 319 [178] (Callinan J) ('Ryan'); SD [2013] VSCA 133; (2013) 39 VR 487, 494 [30] (Ashley, Redlich and Priest JJA).

[19] Ryan (2001) 206 CLR 267, 278 [34] (McHugh J).

[20] SD [2013] VSCA 133; (2013) 39 VR 487, 494 [31] (Ashley, Redlich and Priest JJA).

[22] [2016] VSCA 301 ('Wakim').

[23] Ibid [43] (Redlich JA and Beale AJA).

[24] R v De Simoni (1981) 147 CLR 383, 392 (Gibbs CJ); see also R v Newman [1997] 1 VR 146, 150 (Winneke P, Hayne J and Crockett AJA agreeing at 146 and 153).

[25] We infer that this has been the result of administrative practice within the prison system. There does not appear to have been an order made with respect to the applicant under the Sex Offenders Registration Act 2004 (the second offence under s 52B of the Crimes Act constituting a class 3 offence which attracted the discretion in s 11(3) of the Sex Offenders Registration Act); had such an order been sought, it would by no means have been automatically made: see generally Sayer v The Queen [2018] VSCA 177, [87]-[107] (Whelan and McLeish JJA).