SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0185

DARIN WHEELDON 	Applicant	
		
v		
		
THE QUEEN	Respondent	

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JUDGES:	MAXWELL P and BEACH JA	
WHERE HELD:	MELBOURNE	
DATE OF HEARING:	5 December 2018	
DATE OF ORDER:	5 December 2018	
DATE OF REASONS:	14 December 2018	
MEDIUM NEUTRAL CITATION:	[2018] VSCA 344	
JUDGMENT APPEALED FROM:	[2018] VCC 1245 (Judge Hannan)	

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CRIMINAL LAW – Appeal – Sentence – Rape (four representative charges), false imprisonment, intentionally cause injury – Offences against same victim in both Victoria and New South Wales – New South Wales sentence 11 years with non-parole period of 7 years – Victorian sentence 13 years and 4 months (4 years and 4 months concurrent with New South Wales sentence) – New non-parole period of 14 years – Whether manifestly excessive – Whether totality infringed – Borderline personality disorder – Whether moral culpability reduced – Offending extremely serious – Victim tormented and degraded over lengthy period – Sentence lenient – Leave to appeal refused – DPP v O’Neill (2014) 47 VR 395 considered, Mill v The Queen (1988) 166 CLR 59 applied.

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APPEARANCES:	Counsel	Solicitors	
			
For the Applicant	Mr A Shwartz	Dribbin and Brown Criminal Law	
			
For the Respondent	Mr B L Sonnet	Mr J Cain, Solicitor for Public Prosecutions	

MAXWELL P
BEACH JA:
Summary
1	The applicant pleaded guilty to four representative charges of rape, one charge of false imprisonment and one charge of intentionally causing injury.  The offences were committed against the same victim (‘B’), over a period commencing on the evening of Saturday 2 July 2011 and ending in the early hours of Monday 4 July 2011.
2	Apart from their extended duration, these offences are unusual for the degree of torment and degradation which the applicant inflicted on B.  There is a strikingly sadistic quality about his treatment of B, whom he had got to know when she took him in as a boarder.  As will appear, his offending was an ‘overwhelmingly aggressive’ response to her rejection of his sexual advances.
3	From a sentencing perspective, the case has a further unusual feature.  With B still detained, the applicant travelled into New South Wales (‘NSW’), where he committed further offences against her, of aggravated sexual intercourse without consent (three counts), indecent assault (two counts) and one count of detaining for advantage.  He then tied B up, locked her in a cupboard and left.  She eventually escaped on the evening of Monday 4 July.
4	The applicant contested the NSW charges but was convicted on all counts.  He was sentenced on 14 October 2013 to a total effective term of imprisonment of 11 years, with a non-parole period of seven years.  The NSW non-parole period expires this month.  The applicant is serving that sentence in Victoria, under the provisions of the Prisoners (Interstate Transfer) Act 1983.
5	On the Victorian charges, the applicant was sentenced to 13 years and four months’ imprisonment, of which four years and four months were ordered to be served concurrently with the NSW sentence.  The judge fixed a new non-parole period of 11 years, commencing on 1 January 2015.  The individual sentences and orders for cumulation are set out in the table in paragraph 20 below.  The effect of this sentence was to impose a total effective sentence (for the NSW and Victorian offending) of 20 years, with a non-parole period of 14 years.   
6	The applicant sought leave to appeal against the Victorian sentence, contending that the judge erred in her application of the principle of totality;  failed to take adequate account of the delay since the offences were committed;  and failed to take sufficiently into account his borderline personality disorder.  He also contended that the sentence was manifestly excessive.
7	At the conclusion of oral argument, we announced that leave to appeal would be refused.  We said we would publish our reasons subsequently.  These are those reasons.
The circumstances of the offending
8	The applicant and B met at a soup kitchen run by a Christian charitable enterprise.  B was doing voluntary work there.  Not long after they met, B became aware that the applicant was very unhappy with his accommodation.  One of her boarders was about to move out and she invited him to come and live at her house, which he did.  
9	Initially, the two enjoyed a good relationship.  B tried to make the applicant feel welcome in her home and with her family.  Around January 2011, B’s other boarder moved out, so the applicant was the only other adult living in the house.  He developed a sexual interest in B, and persisted even after she told him she was not interested in a sexual relationship.  As a result, sexual activity occurred occasionally.  
10	The last sexual encounter was on 1 May 2011, when the applicant came into B’s room as she was going to bed.  He pulled her pants down over her objection and penetrated her vagina with his fingers.  She told him to stop and he eventually did.
11	On Saturday 2 July 2011, B’s children were with their father.  On that evening, B and the applicant attended a dinner to celebrate the birthday of one of the soup kitchen volunteers.  After dinner, they sat together in the lounge room.  The applicant offered to massage B’s feet and she accepted.  She thought that they had now reached an understanding that there was not going to be a relationship between them.  
12	As he massaged B, the applicant moved his hands up her legs and then started undoing the button and zip of her jeans.  She told him to stop, saying, ‘For the hundredth time, I have told you, I don’t want this’.  The applicant responded by slapping B across the face.  He pulled off her jeans and underpants and then penetrated her vagina with his fingers (representative charge 1 — rape).  
13	He then grabbed her hand, said, ‘Let’s go,’ and took her to her bedroom.  He took her remaining clothes off, and tied her hands and feet to the bedhead.  
B struggled and asked him to stop.  He punched her to the stomach and then attempted to stuff a singlet into her mouth.  He then sat down on the bed and inserted his finger into her vagina (representative charge 1 — rape).
14	We have described the circumstances in which the offending began, as it provides necessary context.  As the expert reports made clear, and as defence counsel conceded, the applicant’s offending was a direct response to B’s rejection of his attempt to have sex with her.  As his counsel expressed it on the plea, the applicant was wreaking ‘vengeance for what’s been done to him’.
15	The report of the defence expert, Dr Lester Walton, could not have been clearer in this regard:
Specifically in relation to the extended period of brutal sexualised aggression to which he subjected the victim, Mr Wheeldon stated ‘I was upset and hurt.  Maybe I was trying to hurt her as much as she hurt me.  I really don’t know.  
I can’t explain it.  I’m usually protective of women’.
…
While I have described Mr Wheeldon as lacking in insight, in the aftermath of his offending it does seem that he has been able to reflect upon it and I believe he is substantially correct when he identifies the primary motivation towards harming the victim as displacing the hurt upon her which he feels applies to himself.  Thus his activities were overwhelmingly simply aggressive in nature and aggressive sexuality simply formed a part of that.  It was not my impression that 
Mr Wheeldon requires violence as a necessary part of foreplay to become aroused.  The pain he inflicted upon the victim was irrational punishment.
16	It is unnecessary for the purposes of these reasons to set out the detail of what occurred between the initial rape incidents on that Saturday night and B’s escape from a locked cupboard, on the Monday evening.  Dr Walton accurately characterised what occurred as an ‘extended period of brutal sexualised aggression’.  The sentencing reasons are horrifying to read.  It is difficult to believe that the applicant, who was not under the influence of alcohol or drugs nor in the grip of any psychotic disturbance, could have treated B so cruelly for so long.
17	It is sufficient to record that:
•	charge 1 (rape) represented four separate incidents of digital penetration;
•	charge 2 (rape) represented three incidents.  On the first two occasions, the applicant inserted liquid into B’s vagina using a syringe, which produced a strong burning feeling;  on the third, he inserted a pestle into her vagina;
•	charge 4 (rape) comprised six occasions of the applicant forcing B to perform oral sex on him.  More than once he ejaculated in her mouth;
•	charge 5 (rape) represented four occasions of anal penetration which caused B significant pain;
•	charge 6 (causing injury intentionally) was constituted by the applicant inserting needles through B’s nipples, which caused her immense pain.  The applicant insisted that she leave the needles in place overnight.  As the prosecutor correctly submitted on the plea, this ‘involved a form of torture’.
18	The applicant repeatedly tied B to her bed while he assaulted her.  He put a pillowcase over her head while he taunted and threatened her.  He beat her with a metal object (which she thought was a coathanger) while saying ‘Consequences, consequences, consequences’.
19	The charge of false imprisonment covered the period between Sunday morning and Monday morning, during which the applicant drove B’s car through Victoria.  For extended periods, he forced B to travel in the boot of the car.  During periods when he allowed her to sit in the passenger’s seat, he repeatedly forced her to perform oral sex.
20	The applicant was sentenced as follows:

Charge on Indictment 	Offence	Maximum	Sentence	Cumulation	
1.		Rape	25 years	6 years	2 years	
2.		Rape	25 years	6 years	2 years	
3.		False imprisonment	10 years	4 years	1 year	
4.		Rape	25 years	6 years	Base	
5.		Rape	25 years	6 years	2 years	
6.		Causing injury intentionally	10 years	2 years	4 months	
7.		Theft	10 years	6 months	-	

Total Effective Sentence:	13 years and 4 months’ imprisonment
(Four years and 4 months to be served concurrently with the NSW sentence currently being served.  Nine years to be served cumulatively upon that sentence)	
Non-Parole Period:	11 years commencing 1 January 2015 (translation done under Prisoners (Interstate Transfer) Act 1983). 	
Pre-Sentence detention declaration:	N/A	
Other relevant orders: 
Forfeiture Order.
Disposal Order.
Reporting for life pursuant so s 34 of the Sex Offender Registration Act 2004.
Serious Sexual Offender on charges 1, 2, 4 and 5.
Forensic Sample Order.	
Ground 1:  totality
21	Under this proposed ground, the applicant contended that the judge,
when dealing with totality considerations in the sentence failed sufficiently or at all to take into consideration the element of fairness to the applicant.
Reliance was placed on the decision of the High Court in Mill v The Queen.  
22	On the plea, the judge was immediately alive to the totality issue and specifically asked defence counsel to file submissions addressing that question.  The prosecutor also referred to totality as ‘the real issue’.  In her sentencing reasons, the judge referred to the High Court’s approval in Mill of the following statement by Street CJ in R v Todd:
Where there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstance that he has been left in a state of uncertain suspense as to what will happen to him when in due course when he comes up for sentence on the subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach — passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner.
23	Her Honour also set out the following passage from the High Court’s judgment in Mill:
In our opinion, the proper approach which his Honour should have taken was to ask what would be likely to have been the effective head sentence imposed if the applicant had committed all the offences of armed robbery in one jurisdiction and had been sentenced at one time. …
The only course open to the second sentencing court is to adopt a lower head sentence that reflects the long deferment that has taken place during which the offender has been in custody.  It is true that the lower head sentence will fail to reflect adequately the seriousness of the crime in respect of which it is imposed.  That is unfortunate.  However, it is to be preferred to the injustice involved in the imposition of a longer head sentence because of the inadequacy of the law to cope satisfactorily with the intervention of State boundaries.
24	Her Honour then said:
Totality is a difficult issue in relation to this sentencing task, given the connection between the offending for which you will be sentenced this day and the offending for which you have already been sentenced in New South Wales.  In effect this was ongoing offending, but it was as a result of you crossing into New South Wales that the offending had to be dealt with in different jurisdictions at different times
Totality is a significant matter in the sentence I must impose this day given the charges that were dealt with in New South Wales, those charges having occurred as I have said, as a continuation of the Victorian offending.  You were sentenced in New South Wales in relation to two charges of indecent assault, three charges of aggravated sexual intercourse without consent, and one charge of detaining for advantage.  As I have already noted, you were sentenced to be imprisoned for 11 years with a non-parole period of seven.
…
I have been informed in relation to this matter that you will have served the minimum term of the NSW sentence on 31 December of this year.
The correct approach is it seems to consider what would have been an appropriate total sentence, both head sentence and minimum term, for the offending in both New South Wales and Victoria, and then for this court to impose a sentence which is consistent with that determination:  that is, the court may be placed in circumstances where it is necessary to impose a disproportionately lenient sentence in order to avoid a total sentence across both states which is disproportionate.  Given the connection in time and circumstance as between the offending the application of the principles to this matter is clear.  In particular as regards for example the false imprisonment, that was a continuing offence.
25	As can be seen, her Honour directed herself correctly, by reference to the very authorities on which defence counsel had relied.  Nor can there be any suggestion that the sentence imposed infringed the principle of totality.  As explained more fully under ground 4, the sentence was lenient in the circumstances.
Ground 2:  delay
26	Under this proposed ground, the applicant contended that the judge erred
in her application of the principles applicable to delay where the applicant had been incarcerated for a period of approximately seven years in New South Wales before being sentenced in Victoria for like offences occurring at or about the same time in Victoria.
27	There was nothing in this point, in our view.  This was quite unlike the case where there is a long delay between offence and charge, during which the offender is at liberty and is able to demonstrate progress towards rehabilitation.  In this case, the applicant was in custody because of the NSW group of offences and it was inevitable that there would be a delay in the resolution of the Victorian charges.  
28	Moreover, as the prosecutor pointed out in this Court, there was a period of almost two years after the applicant’s transfer to Victoria (in April 2016), during which he indicated a desire to contest the Victorian charges.  He openly admitted to Dr Walton that he had done this knowing that it would prolong the distress for the victim, in the hope of achieving a better sentencing outcome.  Hence that part of the delay was attributable to his own conduct.
29	To the extent that the delay was of significance as a mitigating consideration, there was nothing in the sentence imposed to suggest that it had been undervalued.
Ground 3:  borderline personality disorder
30	In his first report, Dr Walton said:
The overall picture of recurring mood disturbance (particularly depression and aggressivity) the failure to establish enduring intimate relationships, recurring interpersonal conflict, a disturbed sense of self and insightlessness probably is best captured by a diagnosis of borderline personality disorder.
…
Mr Wheeldon’s psychiatric condition involves a fundamental underdevelopment of a core sense of self and a consequence of that is that he is significantly incapacitated in relation to appreciating the feelings of others, in particular, victim empathy and he has a thoroughly compromised capacity for appropriate remorse.  It is not that he is wilfully psychopathic but he simply lacks the emotional resources.
31	At the request of the sentencing judge, a report was obtained from Forensicare.  In his report, Dr Remy Glowinski, consultant psychiatrist, concluded that there was ‘no reason to think that [the applicant] was under the influence of a psychotic or other significant psychiatric illness’.  Nor did Dr Glowinski ‘suspect significant cognitive deficits’.  His conclusions were in these terms:
My impression is that Mr Wheeldon’s sense of persecution is not related to an enduring psychotic illness but is a manifestation of a severe personality disorder with antisocial and paranoid elements.  Mr Wheeldon has demonstrated a consistent pattern of violent behaviours and extreme difficulties managing conflict.  I note a consistent theme of blaming others for his behaviours and circumstances.  He describes manipulative behaviours in the custodial setting.  There was a shallow quality to his emotional expressions in general and his expressions of remorse particularly.  There is evidence of Mr Wheeldon having long term difficulties with impulsivity and handling distressing emotional stress.
…
While there may not have been much planning prior in the initial phases of the offending, the summary and Mr Wheeldon’s descriptions suggest that subsequent offending involved a degree of planning.  He describes behaviours aimed at evading detection, including tying up and gagging the victim.  He purchased duct tape during the offending for this purpose.  He recalls driving quickly from the scene to avoid being apprehended.
…
Mr Wheeldon describes ongoing physical violence towards co-prisoners and prison officers during this prison term.  He describes that this violence has been goal-directed on occasion.  Mr Wheeldon has shown the capacity for extreme sexual objectification and sadism.  There is no reason to think that 
Mr Wheeldon’s long established pattern of violent behaviour has dissipated.
I suggest that Mr Wheeldon undergo personality assessment by an experienced correctional psychologist to further elucidate the degree and type of Mr Wheeldon’s personality difficulties and to assist with treatment planning.  Mr Wheeldon should have psychological interventions aimed at addressing both the violent and sexual aspects of his offending.
32	In his written submission on the plea, defence counsel made no reference to these parts of Dr Glowinski’s report.  Instead, he drew attention to Dr Glowinski’s account of the offending, before quoting the following statement from the report:
Mr Wheeldon described having had hope of developing an intimate relationship with the victim.  It appears that Mr Wheeldon felt rejected and possibly humiliated that she only thought of their relationship as a friendship.
33	In relation to the personality disorder, defence counsel cited the following statement made by Dr Walton in a supplementary report:
Dr Glowinski and I are in agreement in relation to diagnosing Mr Wheeldon as suffering from a ‘severe personality disorder’ rather than a psychotic illness.
In argument on the plea, counsel acknowledged that — on the authority of DPP v O’Neill — the diagnosis of personality disorder did not engage the sentencing principles identified in R v Verdins.  At the same time, he noted the prosecutor’s concession that the personality disorder might be relevant to moral culpability.  
34	In her sentencing reasons, the judge referred to O’Neill and said:
There is really no evidence before the Court as to how your borderline personality disorder affected your conduct, except that you had built up emotional commitment which was not reciprocated and that, ultimately, you have acted with a significant degree of vengeance in the context of you being a person with a severe personality disorder.  Context is always relevant in assessments including moral culpability.
35	In our respectful opinion, the judge’s approach was entirely correct.  As to moral culpability, the present case is completely different from O’Neill.  There the Court accepted that the offender’s dependent personality disorder was explanatory of ‘the uncontrolled outburst of violence’ in which he murdered his partner.  Here, by contrast, the applicant behaved in a sustained, purposeful and calculating fashion, fully aware that what he was doing was wrong.  
36	There was no basis in the expert evidence to found a submission that the applicant’s moral culpability should be viewed as reduced by virtue of the existence of the personality disorder, as her Honour correctly found:
The victim was vulnerable and terrified.  You had even threatened her children.  There was significant power imbalance.  You intentionally at times degraded and humiliated her to satisfy your own perverted desires.  You clearly knew what you were doing was wrong, but you persisted.
You were calculated in trying not to get caught. Indeed, this was calculated offending, at least from the point that you started demanding that the victim make telephone calls to alleviate concerns about what would be her disappearance in circumstances where you intended to kidnap her.  You made choices to keep her in the boot, choices to benefit your own plan, choices to protect yourself from being apprehended, choices to try and control her by fear and threat.  You made those choices without loss of ability to know right from wrong, without any compromised intellect nor cognitive function.
Ground 4:  manifest excess
37	In view of what we have already said, little further need be said to explain why we concluded that the ground of manifest excess was not reasonably arguable.  This was, as the prosecutor correctly submitted on the plea, offending ‘at the very high end of the spectrum’.  We have already referred to the multiple aggravating features.
38	As the applicant’s counsel accepted in this Court, the effect of the judge’s orders for cumulation and concurrency was to impose a total effective sentence (for the NSW and Victorian offending) of 20 years’ imprisonment, with a non-parole period of 14 years.  Of those totals, the Victorian offending accounted for nine years’ imprisonment, with a non-parole period of seven years.
39	Given the extreme nature of the offending, and the seriousness of the individual Victorian offences, that must be seen as a lenient disposition.  Had it not been for the unusual totality considerations arising because of the prior service of the NSW sentence, a substantially higher head sentence and non-parole period would have been called for.
Conclusion
40	None of the grounds of appeal having any prospects of success, we refused the application for leave.
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