Criminal division – sentencing

In DPP v Meyers [2014] VSCA 314 the Court of Appeal granted a DPP appeal against a total effective sentence of IMP 3y6m/1y6m on charges [including IMP 3y on a charge of aggravated burglary – referred to by the DPP as an “intimate relationship aggravated burglary”] and substituted a total effective sentence of IMP 5y6m/3y [including IMP 4y on the aggravated burglary charge]. At [25]-[46] the Court of Appeal discussed the case of Hogarth v The Queen (2012) 37 VR 658 and stressed the need to avoid debate about classification of various types of aggravated burglary. The Court also referred with approval to recent cases of Gale [2014] VSCA 168 [offender breached intervention order by entering home of former wife in the early hours of a Sunday morning, shouted abuse at both of them and threatened her new partner with a cattle prod], Filiz [2014] VSCA 212 & Anderson [2014] VSCA 255 [both with facts broadly similar to Gale]. In Filiz the Court of Appeal (Maxwell P & Redlich JA) had said at [23]:

“It is a shameful truth that family violence is a leading cause of illness, disability and death among Victorian women aged between 15 and 44. It is also sadly true that there are a great number of women who live in real and justified fear of the men who are, or were, their intimate partners.”

It had also said at [21] – citing Felicite v The Queen (2011) 37 VR 329 and DPP v Pasinis [2014] VSCA 97 – that general deterrence was of particular significance where violence was used against a former domestic partner and where a family violence intervention order was in place. In DPP v Meyers Maxwell P, Redlich & Osborn JJA said at [45]:

“We would wish to endorse the remarks in Filiz about the particular seriousness of offending involving former domestic partners. Violence of this kind is alarmingly widespread, and extremely harmful. The statistics about the incidence of women being killed or seriously injured by vengeful former partners are truly shocking. Although the cases under consideration do not fall into that worst category, they are symptomatic of what can fairly be described as an epidemic of domestic violence.”

See also R v Stanbury [2010] VSCA 49; R v Secombe and Butkovic [2010] VSCA 58; R v Denman [2012] VSCA 261; DPP v Bonacci and Vasile [2012] VSCA 170; Saxon v The Queen [2014] VSCA 296.

11.2.28 Sentencing for rape

In R v Daniel Roy Simon [2010] VSCA 66 at [60] Bongiorno JA said:

“The crime of rape, like many other crimes in the criminal calendar, covers a very wide spectrum of criminal culpability. A sentence which is clearly appropriate in one case of rape will be manifestly excessive in a different case and even manifestly inadequate in another.”

In DPP v Avci [2008] VSCA 256 the respondent had pleaded guilty to 13 charges arising out of attacks on six separate women, four of whom he had raped. The plea was to seven counts of rape, two counts of indecent assault, three counts of robbery and one count of aggravated burglary. The respondent had turned 19 just before the first of the offences. He was sentenced to 16 years imprisonment with a non-parole period of 9 years. The Court of Appeal allowed a Director’s appeal and increased the non-parole period to 11 years. At [26]-[27] Maxwell P (with whom Buchanan & Redlich JJA agreed) set out the principles governing sentencing for rape in Victoria:

“In his submissions, the Director rightly emphasised the fact that Parliament has fixed a maximum penalty of 25 years’ imprisonment for rape. As to the significance for sentencing purposes of the maximum penalty, see R v AB (No 2) [2008] VSCA 39. This is the highest maximum provided for by the Crimes Act. (The same maximum is provided for armed robbery, aggravated burglary and trafficking in a commercial quantity of a drug of dependence). The fixing of such a high maximum reflects the community’s abhorrence of this crime. [In R v Hall (1994) 76 A Crim R 454, 475 (Crockett and Southwell JJ)] the Full Court in 1994 expressed the view that, in the 14 years which had passed since an earlier decision in R v Vaitos (1981) 4 A Crim R 238, community concern about ‘the prevalence and seriousness of rape and like crimes’ had undoubtedly hardened, and there was a greater need for salutary sentences to punish those who committed such crimes. Difficult though it is to generalise about community attitudes, I have little doubt that community concern about rape and like crimes, and the need for salutary sentences to punish and to deter, are stronger than ever.

This point was forcefully made in 2006 by Vincent JA (with whom Buchanan and Neave JJA agreed) in DPP v FHS [2006] VSCA 120 at [42]:

‘The courts, when dealing with [rape] cases, must have regard to the vindication of the community’s social values, pre-eminent among which are the protection of the personal integrity and physical safety of its citizens. They must punish, justly, those whose criminal conduct causes harm to others, and, through the sentencing process, endeavour to deter potential offenders from acting in this fashion … [W]hen [these considerations] cannot be seen to be reflected in the responses of the courts, not only … does the individual victim justifiably feel betrayed and devalued, but the criminal justice system itself fails to achieve its objectives.’”

In R v Brown [2009] VSCA 23 at [31] the Court of Appeal (Neave & Weinberg JJA) cited with approval the above dicta of Maxwell P in DPP v Avci and the following dicta of Crockett & Southwell JJ in R v Hall (1994) 76 A Crim R 454, 475 on which it was based:

“[C]ommunity concern about the prevalence and seriousness of rape and like crimes has undoubtedly hardened. And the need for salutary sentences to punish offenders has undoubtedly increased. This change of attitude is reflected in the increase in the maximum sentence that from time to time has been fixed for the crime of rape. Whilst not giving way to public clamour for revenge, the courts in turn are expected to recognise clearly defined and rational community expectations by the sentences that they impose.”

In R v Brown their Honours continued at [33]:

“Sex workers are no less entitled to be protected from rape than anyone else. The victims in this case were both vulnerable. Each was subjected to what must have been a horrifying ordeal. These were cowardly attacks, committed at night against different women on different occasions. There appears to have been some measure of premeditation. Obviously, they warranted severe punishment.”