A W P v The Queen
[2012] VSCA 41
•8 March 2012
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2010 0058
| AWP | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | WEINBERG JA and CAVANOUGH AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 31 January 2012 |
| DATE OF JUDGMENT | 8 March 2012 |
| MEDIUM NEUTRAL CITATION | [2012] VSCA 41 |
| JUDGMENT APPEALED FROM | R v [AWP] (Unreported, County Court of Victoria, Judge Cotterell, 25 February 2010) |
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CRIMINAL LAW - Sentence - Incest and indecent act with a child under 16 years - Sentenced to six years' imprisonment with a non-parole period of four years - New evidence of serious heart condition not available to sentencing judge - Condition would make imprisonment significantly more burdensome - Appeal allowed - Resentenced to six years' imprisonment with a non-parole period of three years.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr C B Boyce | Tait Lawyers |
| For the Respondent | Mr B Sonnett | Mr C Hyland, Solicitor for Public Prosecutions |
WEINBERG JA:
I agree, for the reasons given by Cavanough AJA, that this appeal should be allowed, and the appellant re-sentenced as his Honour proposes.
CAVANOUGH AJA:
On 1 April 2011, Ashley JA granted the appellant partial leave to appeal against a total effective sentence of six years’ imprisonment, with a non-parole period of four years, imposed on the appellant on 25 February 2010 after he had pleaded guilty in the County Court to three counts of indecent act and two counts of incest.
The sentence was made up as follows:
Count on Presentment Offence Maximum Sentence Cumulation 1 Indecent act with a child under 16 years [s 47 Crimes Act 1958 (Vic)] 10 years’ imprisonment [s 47(1) Crimes Act 1958 (Vic)] 10 months’ imprisonment 4 months 2 Indecent act with a child under 16 years [s 47 Crimes Act 1958 (Vic)] 10 years’ imprisonment [s 47(1) Crimes Act 1958 (Vic)] 1 year, 2 months’ imprisonment 6 months 3 Incest by a parent [s 44 Crimes Act 1958 (Vic)] 25 years’ imprisonment [s 44(1) Crimes Act 1958 (Vic)] 3 years, 6 months’ imprisonment Base sentence 4 Incest by a parent [s 44 Crimes Act 1958 (Vic)] 25 years’ imprisonment [s 44(1) Crimes Act 1958 (Vic)] 3 years, 6 months’ imprisonment 1 year 5 Indecent act with a child under 16 years [s 47 Crimes Act 1958 (Vic)] 10 years’ imprisonment [s 47(1) Crimes Act 1958 (Vic)] 1 year, 8 months’ imprisonment 8 months
Total Effective Sentence: 6 years’ imprisonment Non-Parole Period: 4 years Pre-sentence Detention Declared: 16 days 6AAA Statement: 7 years and 6 months’ imprisonment with a non-parole period of 5 years and 6 months Other orders:
· Sentenced as a Serious Sexual Offender on counts 3, 4 and 5: s 6F Sentencing Act 1991 (Vic)
· Sex Offenders Registration Order – mandatory lifetime reporting
· Forensic Sample Order
The ground upon which leave to appeal was granted, as reformulated by Ashley JA, was that the total effective sentence and non-parole period were manifestly excessive in all the circumstances of the case, having regard to excessive cumulation.
The appellant initially elected to pursue a further ground, to the effect that the individual sentences were manifestly excessive, but abandoned it at the hearing of the appeal.
About a week before the appeal was heard, the appellant swore and filed an affidavit in which he deposed to having a heart condition. Four medical reports were exhibited to the affidavit. The appellant submitted that the affidavit was admissible as new evidence in accordance with the principles set out in Eliasen v R[1] and R v Duy Duc Nguyen.[2] The Crown did not object to the admission of the affidavit material, nor require the appellant or any of the medical practitioners whose reports were exhibited to the affidavit to attend for cross-examination.
[1](1991) 53 A Crim R 391.
[2][2006] VSCA 184, [34]-[38].
In R v Eliasen, the Court of Criminal Appeal dealt with an accused who discovered, only after being sentenced, that he was HIV positive. Crockett J (with whom McGarvie and Phillips JJ agreed) said:
... it is plain that authority now establishes that this Court may, if it considers the case an appropriate one so to do, permit evidence of matters or events that have occurred since the date of the passing of the sentence upon an applicant to be placed before this Court with a view to this Court's reconsidering the matter in the light of that additional evidence. It must follow that, if the Court does think that the additional evidence should lead to the imposition of a sentence different from that imposed by the judge, then even where the judge's sentencing discretion has not miscarried the case must be treated as one calling for appellate intervention.[3]
[3]Ibid 394.
It should be noted, however, that his Honour went on to endorse a statement by the South Australian Court of Criminal Appeal as to the limited basis upon which the Court should approach cases of this kind.[4] He accepted that it is only permissible to have regard to events occurring after sentencing for the specific purpose of showing the true significance of facts which were in existence at the time of sentence. Facts not in existence at that time could not be taken into account.
[4]R v Smith (1987) 44 SASR 587.
Plainly that formulation left some questions unanswered. In R v Duy Duc Nguyen[5] Redlich JA (with whom Maxwell P and Neave JA agreed) explained and clarified the operation of the Eliasen principle in the following terms:
[5][2006] VSCA 184, [36]-[38] (citations omitted).
36.It is common ground that this Court may, in limited circumstances - sometimes described as ‘rare and exceptional’ - permit evidence to be led of matters or events that have occurred since the sentence was imposed to enable this Court to reconsider the sentence in the light of that additional evidence. The following principles apply to the admission of such evidence:
(i) the new evidence must relate to events which have occurred since the sentence was imposed;
(ii) the evidence must demonstrate the true significance of facts in existence at the time of the sentence;
(iii)the evidence will not be admitted if it relates only to events which have occurred after sentence and which show that the sentence has turned out to be excessive;
(iv)the new evidence may be admissible even though the applicant did not refer to the pre-existing state of affairs in the course of the plea;
(v)upon the admission of the new evidence, it is unnecessary to determine whether the original sentence was vitiated by error, or whether it was manifestly excessive; and
(vi)the question is whether, on all of the material now before the Court, any different sentence should be substituted to avoid a miscarriage of justice.
37.The consistent approach of this Court has been to treat the sentencing discretion as reopened once it has been concluded that the fresh evidence throws significant new light on the pre-existing facts. The Court must determine what is the appropriate sentence on the basis of all of the material then before it.
38.Many of the cases which support these propositions concerned the admission of new evidence of subsequent events which made imprisonment an even greater burden for the offender and which resulted in the Court varying the sentence imposed.
In the present case, the affidavit material indicates that the appellant has been diagnosed with a heart condition called ‘severe calcific aortic valve stenosis’. His aortic valve has been made smaller, restricting blood flow. If he exerts himself, his heart must work harder than it should, and he is prone to dizzy spells and blackouts. He takes blood thinning medication to ameliorate his condition. At present, he is housed in Ararat Prison. He does maintenance work around the prison, such as carpentry. If he strains himself, he gets dizzy spells and pain in the chest. It does not take much to bring these attacks on. He had a collapse recently going to his cell to obtain a document required by his solicitor. He would like to see a cardiologist, but the prison regime is such that he cannot do so without first being transferred to Port Phillip Prison in Melbourne. He does not wish to go to Port Phillip Prison. He is concerned about the strain of the transferral and he regards Port Phillip Prison as a very stressful place and much different to Ararat. Having spent five months in Port Phillip Prison before moving to Ararat, he says that it is far more confined and far more dangerous in terms of the other inmates. Further, the wait for medical assistance should anything go wrong is far longer at Port Phillip Prison. The appellant desperately wants to see a cardiologist because of what he perceives as a steady worsening of his condition, but he does not think it is worth the risk because of the potential for the change of location to bring on an attack. A Melbourne-based cardiologist, Dr Gay, who has seen two ultrasounds of the appellant’s heart and who has read the accompanying cardiology reports, considers that the appellant ‘should avoid physical, strenuous over-exertion, and undue physical and mental stress, as these conditions may produce presyncope or syncopal type episodes and/or significant cardiac arrhythmia, or cardiac strain’.
In the penultimate paragraph of his affidavit, the appellant says:
10.My heart condition was diagnosed approximately 10 years ago, that is, before I was taken into custody. I did suffer a couple of minor strokes years before I was convicted. I did not rely on my heart condition at my plea before Judge Cotterell because I did not think that it was relevant. At that time I did no suffer any symptoms and had not done so for some time. This was either because the problem was well managed or because the condition was not as bad as it is now. Since being in custody, for whatever reason, the problem seems far more severe and causes me a great deal of stress. I do not want to have a serious heart attack in gaol of all places.
It is a relevant sentencing consideration that an offender suffers from a medical condition that would make the serving of a prison sentence more burdensome.[6] The appellant did not inform his legal representatives of his heart condition for the purposes of the plea. The matter was not referred to on the plea at all. This was not the result of a forensic decision by counsel. Although the new evidence is not as compelling as the corresponding evidence in Eliasen, the position here is similar to that which arose recently in DPC v R.[7] There, a post-sentence diagnosis of angina in custody was found to throw ‘a new light on facts relating to the appellant’s state of health at the time of sentence’.[8] This was enough to warrant the admission of the new evidence in that case, having regard to the principles set out in Eliasen and Duy Duc Nguyen. It is the same here, in my opinion. Indeed, the facts in the present case fall squarely within the fourth of the six principles set out in paragraph [36] of the reasons for judgment of Redlich JA in Duy Duc Nguyen, as set out above. I note again that there was no objection by the Crown.
[6]R v Verdins (2007) 16 VR 269.
[7][2011] VSCA 395.
[8][2011] VSCA 395, [222]-[28] (per Ross AJA, with whom Lasry AJA agreed (at [5]) and with whom Nettle JA was ‘inclined to agree’ on this point (at [5])). Compare PT v R [2011] VSCA 43, [64]-[65].
As Redlich JA further said, the consistent approach of this Court has been to treat the sentencing discretion as re-opened once it has been concluded that the fresh evidence throws significant new light on the pre-existing facts.[9] The question then becomes whether, on all of the material now before the Court, any different sentence should be substituted to avoid a miscarriage of justice.[10] The Court must determine what is the appropriate sentence on the basis of all of that material.[11]
[9]R v Duy Duc Nguyen [2006] VSCA 184 [37].
[10]Ibid, [36]. As is there pointed out, the reference to ‘miscarriage of justice’ is found in cases such as R v McLachlan (2004) 8 VR 403, [10] and R v Ahmed [2005] VSCA 279, [11]. See also DPC v R [2011] VSCA 395, [28].
[11]R v Duy Duc Nguyen [2006] VSCA 184, [37].
The circumstances of the offending
The appellant makes no complaint about the learned sentencing judge’s description of the offending, as follows:
3.The complainant, your natural daughter now aged 21 was approximately 13 to 15 years old during the period of the offending. When she was 13 she had a knee operation and had found difficulty in sleeping and she would sit with you on the couch until late at night watching television. She would ask for a massage which you would give her and she would end up falling asleep with you on the couch.
4.One night she fell asleep on the couch in her school uniform and woke later to find you touching her breast in a sexual kind of way. You had placed your hand under the bottom of her top and were groping one of her breasts over the top of her underwear. The complainant pretended she was waking up because she wanted to stop you and was too scared to say anything. This event constitutes the basis for Count 1.
5.One night in 2003 the complainant awoke on the couch with you next to her. You had undone her bra and lifted it. You had one breast cupped in your hand and you were sucking and licking her nipple. She again turned from side to side as if waking up as she felt she could not tell you to stop. As she pretended to be waking up, you stopped touching her. This event is the basis for Count 2 on the presentment.
6.Your behaviour began to escalate during 2003 and one night the complainant fell asleep on the couch dressed in her school dress with underwear and boxer shorts under her dress. She woke to find you with your hand inside her underwear playing with her vagina. You then penetrated her vagina with your fingers, causing her to experience pain and nausea. She estimated this continued for a minute or two but to her it seemed like an eternity. She then went to bed and lay there for a while wondering what had happened before getting up and vomiting. She then showered because she said that she felt like filth. That is the factual basis for Count 3.
7.In 2004, just before the September school holidays, the complainant again fell asleep on the couch and woke to find you penetrating her vagina with your fingers. This is the basis for Count 4.
8.On the same occasion, you grabbed the complainant’s hand and placed it on your penis on the outside of your clothing. You then removed your penis and put her hand around it and made her rub it up and down. You used your daughter’s hand to masturbate yourself until she pulled her hand away and with that you stood up and left the room. There is no further offending alleged after that event.
The evidence indicates that the first offending (the subject of Count 1) occurred on or about 1 May 2002.[12] Hence, the offending occurred on four occasions during a period of just under two and a half years, the last occasion comprising two incidents.
[12]Report of Jeffrey Cummins, psychologist, p 1.
Other relevant considerations: the sentencing judge’s findings
The appellant makes no complaint about the factual accuracy or the fairness of the remainder of the learned judge’s sentencing remarks. Those remarks may be summarised as follows.[13]
[13]With minor supplementation from the evidentiary material that was before the learned sentencing judge.
A victim impact statement declared by the appellant’s daughter revealed the depth of her distress, sense of betrayal and emotional trauma caused by the appellant’s behaviour. His offending led her to become extremely disruptive and rebellious, and eventually unable to continue with her education so that she left school in Year 10. She began to self-harm, make suicide attempts and become involved with drugs, violence and binge drinking. She was also fighting with her mother and her brother because of her behaviour. Family life became extremely difficult. The appellant’s wife asked their daughter to leave the family home on the wife’s birthday in February 2007. The daughter’s behaviour had become so extreme that it had affected her mother’s health. The appellant allowed his daughter to be removed from the family home without intervening on her behalf at any time with an explanation for her behaviour.
The daughter was taken to a community housing centre and, as a result of questioning by a case worker, she disclosed what had happened to her at the appellant’s hands.
In May 2007, the appellant’s wife and her brother confronted the appellant about his past abuse of his daughter. The appellant admitted it to them. The appellant was then asked to leave the house, and he did. He had no contact with his wife after that time.
The appellant’s daughter returned home after the appellant left the family home, following the revelation of the appellant’s offending to the rest of the family. The daughter eventually reunited with her mother and brother, although that had not been an easy path. At the time of the plea, she was hopeful of starting a new chapter of her life.
A victim impact statement declared by the appellant’s wife describes the sense of devastation, loss, betrayal, shock and psychological and emotional trauma that she experienced at the revelation of the appellant’s offending. She had never suspected it. She then had the additional difficulty of trying to be strong for her son and daughter. The son, too, was extremely affected and traumatised by the appellant’s actions and ceased contact with the appellant.[14] The appellant’s wife suffered enormous trauma, both directly and through her children – especially through her daughter. She remained supportive in all ways of the daughter and was attempting to remedy some of the enormous damage that the appellant had caused.
[14]The son was about 20 years old in May 2007.
The learned sentencing judge remarked that it could be said on the appellant’s behalf, in relation to this very serious offending, that he had taken full responsibility for his offending behaviour. He admitted it to his wife and brother-in-law when confronted in May 2007. Although he made a no comment record of interview on legal advice when he was interviewed on 19 August 2008, he admitted his behaviour again during a pretext telephone call with his daughter on 18 September 2008. He was arrested the next day. The appellant’s daughter might take some small comfort from the fact that the appellant pleaded guilty and she was spared the ordeal of giving evidence and having the matter tried before a jury. The appellant at least acknowledged the pain and suffering he had caused her, which (according to the learned sentencing judge) most fathers in his position do not appear to do.
The appellant was 54 years of age at the time of the plea. (He is now 56 years of age.) He was raised in a reasonably close family unit. His mother had died some 15 to 20 years before the plea. His father was 83 years of age at the time of the plea and was present in Court. Also present was the appellant’s father’s de facto partner. They had come from interstate to support the appellant during the plea hearing.
The appellant’s education was uneventful, save that he attended a number of primary schools due to his family moving frequently. He left school at the age of 15. He then worked in a grocery store for a short period. After that, he began working as a timber setter in a joinery business, where he remained for some 30 years, apart from a period where he left to work with his father building houses. His parents were very hard working and his family had a strong work ethic, which was evidently passed on to him.
The appellant and his wife married in their early twenties and together underwent the struggles of establishing a home. The appellant himself built the house into which they moved in their early thirties. The appellant and his wife resided in that house until the separation in May 2007.
A psychological report by Mr Jeffrey Cummins was tendered on the appellant’s behalf. The appellant told Mr Cummins that there was both a physical and an emotional upheaval in the family unit when the appellant’s mother-in-law moved into the family home, which, in turn, required the appellant’s daughter to move out of her bedroom to sleep in the study. The appellant’s relationship with his wife deteriorated as a result of his mother-in-law’s presence in the household, and that led to him staying up late at night to watch television and frequently sleeping on the couch. The appellant told Mr Cummins that it was in this context that he formed an inappropriately close friendship with his daughter and that it was against this background that he sexually abused her.
The learned sentencing judge accepted that the appellant demonstrated some insight into his behaviour and the effects of it on his daughter, in that he told Mr Cummins that at the time of the offending he had a perception that his daughter was complicit in his advances to her, but had come to appreciate that she probably appeared to be complicit because she felt so overwhelmed, scared and puzzled by his behaviour. On the plea, the appellant acknowledged completely that his daughter was in no way complicit with any of his actions.
Mr Cummins proceeded to say that the appellant’s comments to him indicated that the appellant was taking full responsibility for his behaviour, that he was remorseful and that he was still only at the beginning of a process of explaining to himself how he was able to abuse his daughter’s trust and to breach the incest taboo in having sexual contact with her.
Mr Cummins concluded that the appellant’s offending was motivated in circumstances where he was suffering some form of depression and was psychologically vulnerable. There was disruption in the family unit and the actual offending was situationally motivated.
Although the appellant had had no contact with his wife or son since being asked to leave the house in May 2007, he did have the ongoing support of his own immediate family and of some friends who, while not condoning his behaviour in any way, did continue to support him.
During the plea hearing, the appellant was supported in Court by his current de facto partner. She had known him as a teenager. She gave evidence on his behalf and said that the two of them had been extremely close friends from the age of 14 to the age of 21 and had then lost contact. She got in touch with the appellant after many years while he was living alone in a rented unit. She did so because she had suffered two recent bereavements involving people close to her whom the appellant had also known. She contacted the appellant to inform him of the deaths of those people. A meeting was arranged. She observed the appellant to be in extremely poor condition. He was obese and had neither dentures nor spectacles. She then became involved in attempting to assist the appellant. He told her of his offending after some four or five meetings, and she then sought counselling for him and helped him to find somewhere to live. She attended counselling sessions with Mr Cummins with him. At the time of the plea hearing, the appellant was living with his de facto partner and had her full and ongoing support. He was involved in continuing counselling.
In his report, Mr Cummins concluded that the appellant did not specifically suffer from hyperthelia, i.e. attraction to adolescent children. He concluded that the appellant had already identified some of the risk factors relevant to his offending and would benefit from participation in a sex offender treatment program.
The learned sentencing judge expressed concern that the appellant told Mr Cummins that, with hindsight, he thought he may have committed this offending in the context of suffering some form of mid-life crisis, which he attributed to the fact that he had been previously actively involved as secretary and treasurer of a service club which had to be closed down in 2000, a matter that was depressing for the appellant, as he missed the friendship, fellowship and stimulation of community work, together with the fact that his mother-in-law had moved into the house shortly after he had completed renovations and extensions to the house. The learned sentencing judge found it very concerning that the appellant could attribute to some
form of mid-life crisis such destructive behaviour as he had indulged in with a child aged from 13 to 15.
The plea material included three references from individuals who had known the appellant for many years and who considered his actions completely out of character and believed him to be extremely remorseful.
Evidence was also given on the appellant’s behalf by his sister, who said that the appellant had been a good brother, a hard worker and a person who had provided for his family. She also indicated that the appellant was extremely remorseful and had taken full responsibility for his actions.
Before the learned sentencing judge, the appellant’s counsel submitted that the evidence showed that the offending was completely out of character for the appellant. Counsel divided the appellant’s life into three distinct periods and emphasised that the crisis period and offending occurred in a two and a half year time span in an otherwise fruitful adult life dedicated to hard work and family. He observed that the offending over that short period had destroyed most of what the appellant had constructed over years of effort.
Counsel acknowledged that immediate imprisonment was called for, but submitted that, in considering what term of imprisonment to impose, the Court should recognise that the appellant would truly be punished by the very fact of imprisonment and by the knowledge that he had offended and caused so much damage and pain to his daughter and his family as a whole. Counsel also submitted that the appellant had good prospects for rehabilitation.
On the other hand, the learned sentencing judge accepted that the Crown had correctly emphasised the importance of general deterrence and just punishment as being two of the matters required to be taken into account. Her Honour observed that the principle of general deterrence required that others be deterred from committing offences such as the appellant’s, by realizing that serious consequences would flow from the violation of children in their own homes by their own parents.
The learned sentencing judge further took into account specific deterrence, although she was satisfied that this was a less important factor in the appellant’s case because of his character before the offending, his frank admissions, and his seeking of counselling in relation to his offending. These matters indicated to her Honour that the appellant had good prospects for rehabilitation and had probably largely been deterred from ever committing such an offence again.
Her Honour recognised that it was necessary to denounce the appellant’s conduct on behalf of the community and to do so absolutely. Her Honour commented that the sexual abuse of children by their parents strikes at the very heart of the community, the family unit. It would not be tolerated and serious consequences would necessarily flow from offending such as the appellant engaged in. The maximum penalty of 25 years’ imprisonment for incest as prescribed by Parliament clearly demonstrated this.
The learned sentencing judge observed that she was required to impose just punishment in all of the circumstances. A mitigating factor was the appellant’s immediate plea of guilty, which her Honour took to be indicative of true remorse, and which saved his daughter and other family members from giving evidence at a trial before a jury and saved the community the cost and expense of a trial. The appellant was entitled to a discount for that plea and would receive one.
Her Honour accepted that the appellant was a person of otherwise good character and that any sentence she might impose could not repair the wreckage that he had left behind and the damage he had done to the relationships of everyone in his immediate and extended family. Her Honour expressed the hope that the conclusion of the matter would enable his daughter to move on and to realise that she was blameless and that the effects of the appellant’s actions against her as a vulnerable child were recognised.
The learned sentencing judge said that in sentencing the appellant for these multiple offences, she had considered how the sentences should relate to each other and had applied the principles relating to concurrency, cumulation, totality and proportionality. Her Honour determined in the circumstances of the case that there had to be some cumulation so that the total effective sentence imposed was just and adequately reflected the total criminality involved.
Her Honour had also considered what would be an appropriate minimum term in all of the circumstances.
It was common ground before the learned County Court judge (and it still is) that the appellant was required to be sentenced as a serious sexual offender in relation to counts 3, 4 and 5. That brought into operation ss 6D and 6E of the Sentencing Act1991.
As to s 6D(a), in determining the length of the sentences of imprisonment to be imposed on the relevant counts, her Honour recognized that she was required to regard the protection of the community from the appellant as the principal purpose for which the sentences were to be imposed. As to s 6D(b), however, her Honour did not consider it necessary or appropriate, to achieve that purpose, to impose sentences that were longer than those which were proportionate to the gravity of the relevant offences. As to cumulation, her Honour simply mentioned that s 6E applied.
The submissions on the appeal
Although the admission of the new evidence would mean that the sentencing discretion was re-opened, counsel for the appellant continued to submit that the total effective sentence and the non-parole period were manifestly excessive.
In the appellant’s written case it had also been submitted that the s 6AAA declaration made by the learned sentencing judge did not evince that she had given a firm deduction of penalty by virtue of the appellant’s having admitted his offending at an early stage and having entered early pleas of guilty. However, counsel made no reference to the s 6AAA declaration during the hearing of the appeal and I would treat that particular point as having been abandoned. In any event, it had no real merit.
Having made submissions about the new evidence relating to the appellant’s heart condition, counsel then concentrated on what he called his totality argument. He submitted that there was room to reduce the total effective sentence in line with the considerations upon which Ashley JA had granted leave to appeal. He submitted that each of the individual sentences was stern, rather than modest, although the appellant no longer contended that any of them was manifestly excessive. However, according to counsel’s submission, the degree of cumulation, the ultimate total effective sentence and the non-parole period were all too high.
In support of his totality argument, counsel emphasised that the appellant had sought counselling prior to being charged by the police (not in order to set up a plea in mitigation), and that the appellant had shown great remorse. He had entered early pleas of guilty. By accepting responsibility at an early stage and acknowledging the pain and suffering he had caused, the appellant had done everything he possibly could to make good what he had done wrong. This was seldom seen, as the sentencing judge herself had commented. The appellant had good prospects of rehabilitation.
The appellant’s counsel pointed out that, at the hearing below, the Crown had suggested a head sentence of between eight and six years, and a non-parole period of between seven and five years. Counsel submitted that these ranges were too high and were wrong.
Turning to the structure and details of the sentence actually pronounced, counsel pointed out that the degree of cumulation on counts 1 and 2 was 40% and 42% respectively. Section 6E of the Sentencing Act1991 did not apply to these counts, and yet the percentage cumulation was the same as, or greater than, the percentage cumulation (40%) on count 5, to which s 6E did apply. Counsel submitted that this could not be right. He did not complain about the cumulation of one year on count 4, which amounted to 28%. However, he noted that the offending the subject of count 4 happened on the same occasion as the offending the subject of count 5. He submitted that the degree of cumulation on each count other than count 4 was excessive, leading to a total effective sentence and a non-parole period that were both excessive, having regard to current sentencing practices.
I turn to the submissions for the Crown. As indicated above, the Crown did not object to the court receiving the appellant’s affidavit in evidence. On the other hand, counsel for the Crown submitted that the material consisted mainly of the appellant’s own testimony, rather than medical opinion; that it should carry little weight; and that it should not result in a different sentence. Counsel relied on R v Beyer[15] in this regard. He pointed out that the appellant could transfer to Port Phillip if he chose, and submitted that this would not be a significant burden on him.
[15][2011] VSCA 15.
Counsel conceded that the range put forward on behalf of the Crown below was wrong. In this regard, counsel very fairly drew attention to the quite recent decision of the Court of Appeal in R v RBN.[16]
[16][2011] VSCA 261. See further below.
Counsel submitted that the level of cumulation adopted by the learned sentencing judge was open to her. He reiterated that the appellant fell to be sentenced as a serious sex offender on counts 3, 4 and 5. He referred to the principles set out in R H McL v The Queen[17] and R v Beyer[18] concerning s 6E of the Sentencing Act 1991.
[17](2000) 203 CLR 452, 477 [76].
[18][2011] VSCA 15, [14].
Consideration of submissions
The appellant’s offending was undoubtedly very serious. It had devastating consequences for his whole family, and for his daughter especially. Nevertheless, the sentencing discretion having been re-opened, it is not necessary for the appellant to demonstrate specific error or manifest excess, and I am persuaded that, in light of the new evidence, there should be a modest reduction in the sentence imposed by the County Court, limited to the non-parole period.
The existence of the appellant’s heart condition was, of course, unknown to the learned sentencing judge. The Crown accepted that some weight might be given to the new evidence relating to that matter, while still submitting, in reliance on R v Beyer, that it should not lead to a different sentence. However, in my view, the present case is relevantly distinguishable from R v Beyer.
In Beyer, the Crown objected to the reception of the medical evidence relating to the offender. Much of it did not throw any new light on the state of the offender’s health as it had been at the time of pronouncement of sentence. Rather, the offender’s condition had progressed in a way that was foreseeable at that time. Mr Beyer complained that his treatment was taking him away from his cell at Ararat Prison and he wished to avoid that inconvenience in the future. However, the process of transfer from prison to hospital was not particularly burdensome for Mr Beyer. Nor did the problem exacerbate his medical condition. He put his complaint no higher than that the process was very disruptive of a normal prison existence. The Court of Appeal concluded that these complaints were matters for authorities other than the courts.
The situation is different here. The learned sentencing judge was not told of the appellant’s heart condition at all. The appellant’s unchallenged evidence indicates that the service of his sentence has been and will be significantly more burdensome for him than the learned sentencing judge could have expected.
Turning to the remaining points argued, I note that the Crown concedes that an unduly high penalty range was put to the County Court judge. There is no indication that the learned sentencing judge was provided with any other material relevant to current sentencing practices for offences of this kind, such as the Sentencing Snapshots relating to the offences of incest and indecent act with a child under 16 published by the Sentencing Advisory Council. However, I am not persuaded that these circumstances led to error on the part of the learned judge.
The case of R v RBN,[19] to which the Crown fairly referred us, was decided by the Court of Appeal after sentence was pronounced in the present case . In RBN, the Court of Appeal reduced very substantially sentences which had been imposed on an offender who had been convicted on a total of five counts of incest against his two stepdaughters, two counts of indecent act with a child under 16 and certain serious non-sexual offences against his wife. The circumstances of the sexual offending in that case were not dissimilar from the circumstances of the offending in the present case, as counsel for the Crown himself pointed out before us. The offender fell to be sentenced as a serious sexual offender in relation to three of the incest counts.
[19][2011] VSCA 261.
The Court of Appeal was required to re-sentence the offender after it was discovered that he had been wrongly convicted on the two charges of committing an indecent act with a child under 16. The alleged victim was one of the two stepdaughters. It turned out that she had been 16 years old at the time. The other was 12 years old during the period of the offending. The Court of Appeal re-sentenced the offender to three years’ imprisonment on each of the first two incest charges. As to the other three incest charges, where the applicant fell to be sentenced as a serious sexual offender, a sentence of four years’ imprisonment was imposed on each charge. Additional sentences were imposed on the remaining non-incest charges, comprising terms of imprisonment of two years, six months, nine months and 12 months respectively. Even taking into account those further sentences, the total effective sentence imposed was seven years and six months’ imprisonment, and a new non-parole period of four years and six months was fixed.
In RBN, the County Court had originally imposed a total effective sentence of 11 years and six months and a non-parole period of nine years. In that regard, Maxwell P said:
12. Sentences of the levels here imposed for incest are customarily reflective of offending accompanied by multiple aggravating features. I have in mind cases involving sustained offending over a long period or periods, often charged as representative counts, with much younger victims and, most particularly, cases involving violence, threats, infliction of pain, and a refusal to desist despite requests from the victim. Matters of that kind have, for perfectly understandable reasons, been viewed as making incest offences very much more serious.
13.This Court has said often that incest is a crime of great seriousness.[20] It is an appalling crime, involving the worst kind of breach of trust as between parent and child, and it is notorious that it causes long-term damage to the child victims whom it is the parent’s first obligation to protect.
[20]DPP (Vic) v CPD (2009) 22 VR 533, 546–7 [54]–[56] (‘CPD’) and the cases there cited.
14.It is, at the same time, of the essence of the sentencing task that like cases be treated alike and that different cases be treated differently. A review of decisions of this Court dealing with sentence appeals for incest reveals just that. Included at Appendix B to the reasons of the Court in Director of Public Prosecutions (Vic) v DJ,[21] dismissed on 30 March this year, is a table of decisions comprising the incest decisions relied on by the parties in DJ and the decisions set out in table D to the joint judgment in CPD.[22]
[21][2011] VSCA 250 (‘DJ’).
[22]Ibid.
15.A review of the sentences on the individual incest counts and the total effective sentences informs the approach to sentencing range in a case like this. What is striking about the present case is that it had none of the aggravating features which are associated with the higher sentences in the table.
Ross AJA agreed with the orders and reasons of Maxwell P. Ashley JA agreed with the proposed orders. As to the proposed new sentence, his Honour said:
34.In my view, the sentences which are proposed on the sexual offence counts are appropriate because, intrinsically, the particular offending was at nowhere near the level of seriousness which, unfortunately, this Court commonly encounters, and because the surrounding circumstances were much to the applicant's advantage.
35.As the President has observed, the sexual offences involved five discrete incidents over a period of about four months. There were no representative counts. There were no rolled-up counts. The offences themselves were not accompanied by threats or violence. The children, though one of them was only aged 12 at the relevant time, were by no means as young as this Court commonly encounters with offences of this kind.
Like Maxwell P, Ashley JA referred to CPD with approval.
In considering what sentences should be imposed in the present case, I have had regard not only to the decision in RBN itself but also to the decisions in DJ and CPD to which Maxwell P referred in RBN and, in particular, I have had regard to the table of decisions set out in Appendix B to the reasons of the Court in DJ and also to the list of decisions set out in Table D to the joint judgment in CPD. I have also had regard to the two relevant Sentencing Snapshots.
The appellant does not contend that there should be any interference with the individual head sentences imposed in this case. However, as indicated above, he submits that there should be adjustments to the degree of cumulation in respect of counts 1, 2 and 5. In evaluating that submission, I bear in mind what was said by Harper JA (with whom Bongiorno and Hansen JJA agreed) in R v Beyer[23] concerning s 6E:
[23][2011] VSCA 15, [14].
14.This provision gives effect to a legislative policy that serious sexual offenders are in a special category of offenders. One aspect of that policy is that the scope for applying the principle of totality must be more limited than it is in cases not falling within s 6E. Another is that, although the judge has a discretion to direct that sentences to which the section applies operate concurrently rather than cumulatively, the object of the provision is to ensure that sentences are cumulative unless there is good reason why they should be served concurrently. And, as McHugh, Gummow and Hayne JJ observed in their joint judgment in R v RHMcL:[24]
… 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 … [S]entencing 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.
It is, of course, open under s 6E to direct partial cumulation rather than concurrency or total cumulation.
[24](2000) 203 CLR 452, 477 [76].
I am not particularly impressed by the appellant’s submissions based on the percentage degree of cumulation in respect of counts 1 and 2. Those submissions pay insufficient regard to the relatively short length of the respective head sentences. I do not accept that any of the individual head sentences was ‘stern’. Nor would I accept that the total effective sentence and the non-parole period imposed by the learned County Court judge were manifestly excessive. Indeed, in my view there was nothing wrong with the sentence imposed below on the material that was before the learned sentencing judge. However, the sentencing discretion has been reopened in this case and must be exercised afresh. Because of the new evidence as to the impact of the appellant’s severe heart condition upon him, and the additionally burdensome nature of imprisonment, I would reduce the non-parole period from four years to three years. I would otherwise confirm the orders made below.
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