Aaron McKenzie (a pseudonym)[1] v The Queen
[2017] VSCA 243
•8 September 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0122
| AARON McKENZIE (A PSEUDONYM)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.
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| JUDGES: | KYROU and HANSEN JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 30 August 2017 |
| DATE OF JUDGMENT: | 8 September 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 243 |
| JUDGMENT APPEALED FROM: | DPP v [McKenzie] (Unreported, County Court of Victoria, Judge Stuart, 17 May 2017) |
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CRIMINAL LAW – Appeal against sentence – Two breaches of a supervision order contrary to s 160 of the Serious Sex Offenders (Detention and Supervision) Act 2009 – Aggregate sentence of 12 months’ imprisonment with no non-parole period – Whether sentence manifestly excessive – Whether judge erred in rejecting opinion of forensic psychologist as to the reasons for the offending – Leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J McLoughlin | Victoria Legal Aid |
| For the Crown | Ms D L Piekusis | Mr J Cain, Solicitor for Public Prosecutions |
KYROU JA
HANSEN JA:
Introduction and summary
On 7 February 2017, the applicant pleaded guilty to two charges of breaching a supervision order contrary to s 160 of the Serious Sex Offenders (Detention and Supervision) Act 2009 (‘Supervision Act’). The first breach involved having contact with a child under 16 years of age and the second breach involved the consumption of alcohol.
On 17 May 2017, a judge of the County Court, exercising summary jurisdiction,[2] sentenced the applicant, then aged 60, to an aggregate sentence of 12 months’ imprisonment without fixing a non-parole period.[3] The maximum penalty for each offence is five years’ imprisonment but, under the summary jurisdiction, a two year maximum was applicable.
[2]See Supervision Act s 172.
[3]DPP v [McKenzie] (Unreported, County Court of Victoria, Judge Stuart, 17 May 2017) (‘Sentencing remarks’).
The applicant seeks leave to appeal against the sentence on the basis that it is manifestly excessive, and that the judge erred in rejecting an opinion given by a forensic psychologist as to why the applicant had offended.
For the reasons that follow, the application for leave to appeal will be refused.
The applicant’s criminal history and the making of the supervision order
The applicant has prior convictions for offending against young boys. He also has prior convictions for theft, dishonesty, assault and drunk and disorderly offences.
On 4 September 1978, the applicant was convicted in the County Court at Bendigo of one charge of gross indecency and one charge of indecent assault on a male. He was sentenced to 6 months’ imprisonment for these and other offences, with the sentence being suspended on his entering into a $200 good behaviour bond for two years.
On 6 September 1985, the applicant was convicted in the Williamstown Magistrates’ Court of two charges of indecent assault on a female under 16 years of age and was fined $300 on each charge.
On 18 October 1994, the applicant was convicted in the County Court at Bendigo of four charges of sexual penetration of a child under 10 years of age and three charges of committing an indecent act with a child under 16 years of age. The offences involved the applicant befriending and offending against four boys aged five, six, seven and nine years. Following a successful Crown appeal against sentence, he was resentenced by the Court of Criminal Appeal to 7 years’ imprisonment with a non-parole period of 4 years and 6 months.
On 21 April 2009, the applicant was convicted of one charge of committing an indecent act with a child under 16 years of age and one charge of producing child pornography. He was sentenced in the Frankston Magistrates’ Court to an aggregate term of 12 months’ imprisonment, to be served by way of a combined custody and treatment order with six months in custody and the balance to be served in the community. A condition of the order was that the applicant undergo alcohol testing. A sex offender registration order was made and the applicant was required to report to police for a period of 15 years.
The circumstances of the 2009 offending were that the applicant befriended a 10 year old boy and invited the boy into his caravan at a caravan park. Once inside, the applicant told the boy to pull down his pants and underpants, whereupon the applicant fondled the boy’s penis and used his mobile phone to take photographs of the boy’s penis.
On 9 October 2009, upon application by the Secretary to the Department of Justice (‘Secretary’), a judge of the County Court made an interim extended supervision order in respect of the applicant. On 23 June 2010, another judge made a five-year supervision order in respect of the applicant under the Supervision Act. The supervision order and its conditions were reviewed by judges of the County Court on 6 June 2013, 18 July 2013 and 3 June 2014.
On 18 February 2014, the applicant was convicted in the County Court of breaching condition 4(c) of the supervision order. That condition prohibited the applicant from knowingly remaining within 50 metres of a children’s playground between specified times. The applicant attended a tennis court (next to a children’s skate park) outside of the prescribed hours. He was sentenced to 5 months’ imprisonment, wholly suspended for 12 months.
On 29 May 2015, an interim supervision order was made by a judge of the County Court pending renewal of the supervision order.
On 1 October 2015, the supervision order was renewed until 30 September 2020 by the judge whose decision is the subject of this application.
The relevant conditions of the supervision order are 7(d) and (g). Condition 7(d) provides that the applicant ‘must abstain from the consumption of alcohol.’ Condition 7(g) is in the following terms:
[AARON MCKENZIE] must not knowingly have contact whatsoever with children or young persons under the age of 16 years, whether directly or indirectly, supervised or unsupervised, including but not limited to:
(i) touching;
(ii) standing or remaining next to;
(iii) meeting; or
(iv)talking to or communicating with, by any means whatsoever, including but not limited to:
(A)telephone;
(B)electronic means (such as email, texting, webcam, website or social media sites such as Facebook and MySpace);
(C)letter or correspondence; or
(D)through another person;
save for contact which is unable to be avoided in the course of his lawful daily activities … , unless he has the prior written consent of the [Adult Parole Board].
In his ruling dated 1 October 2015 regarding the application for renewal of the supervision order, the judge made the following findings:
(1) [The applicant] is a paedophile;
(2)[The applicant] has an extensive history of serious sexual offending of a high level and persistently so;
(3)He is an alcoholic and has been since probably his teen years. He has engaged in continual and sometimes extreme alcohol abuse. That alcohol abuse has been extant for him a 58 year old man for in excess of four decades;
(4)There have only been two relatively limited periods of abstention from alcohol other than when he has been alcohol free because of incarceration;
(5)[He] has a demonstrated preparedness to lie to persons in authority about his alcohol use;
(6)There is a direct correlation between his alcohol abuse and his potential for sexual offending against children;
(7)There is an insufficient history of abstention from alcohol given his abuse of alcohol in excess of 40 years’;
(8)He is a person who is vulnerable to resume alcohol abuse in order to cope with any change in his circumstances potentially leading to unpredictable resumption of alcohol abuse;
(9)He has a laudable but belated recognition of the need to permanently abstain from alcohol;
(10)There has been a limited time period during which his preparedness to abstain from alcohol use has been tested;
(11)His potential for re-offending is in the moderate to high level as attested by Ms Raymond; and
(12)Finally, in the event that he resumes drinking alcohol, the kind of offending that he may engage in is of the most grave character involving the sexual abuse of children under the age of 16.[4]
[4]Secretary to Department of Justice and Regulation v [McKenzie] (Unreported, County Court of Victoria, Judge Stuart, 1 October 2015) [52].
Circumstances of the offending
On 2 December 2016, the applicant attended a hotel in a Melbourne suburb. CCTV footage obtained by police from that day shows the applicant having contact with a six year old boy, without the prior written consent of the Adult Parole Board, in breach of condition 7(g) of the supervision order (charge 1). The footage depicts the following:
Time Event 6.53pm An adult male attends with the boy. The applicant picks up a chair and a blue bag from the table and moves over to a bench area about two metres away. The boy follows the applicant to where he has moved and the applicant talks to the boy. 6:57pm The boy picks up a package given to him by the applicant. The boy is seated at a table with the applicant, the applicant’s partner and other adults. 6:58pm The applicant goes around and talks to the boy. 7:02pm The applicant is shadow boxing and playing with the young boy with another adult male. 7:17pm The applicant and his partner are back around the table and standing next to or talking to the boy. 7:18pm The applicant picks the boy up and seats him back onto a chair. The applicant stands next to the boy. 7:19pm The applicant continues to shadow box and play with the boy. 7:23pm The applicant puts his sunglasses on the boy. 7:27pm The applicant is dancing with, talking to and playing with the boy. 7:29pm The applicant puts his hand on the boy’s head. 7:31pm The applicant continues play boxing with the boy. 7:33pm The applicant hugs the boy and continues playing with him. 7:37pm The applicant leaves the area followed by the boy. 7:38pm The boy comes back.
The same CCTV footage shows the applicant purchasing two schooners of beer at 6.18 pm and then consuming the beer, in breach of condition 7(d) of the supervision order (charge 2).
On 8 December 2016, the applicant informed Corrections Victoria that he had not consumed alcohol and, on 15 December 2016, he denied any contact with the young boy. However, when he was arrested on 23 December 2016, he told police that he had had contact with the boy and had consumed alcohol on 2 December 2016. He said that he was a friend of the boy’s grandmother and that the boy had been attending the hotel with his grandmother and parents over the past six weeks. He also said that he had seen the boy about four or five times in the presence of other adults and had given him a toy monkey as a Christmas present on 2 December 2016. He said that he had started drinking alcohol again over the previous month.
The applicant was remanded in custody on 23 December 2016.
Applicant’s personal circumstances
The applicant is the third of five children who grew up in a poor family. He had a good relationship with his parents and siblings. One of his younger siblings, a brother, died in a fire. His father died in 1986 and his mother died in early 2008.
When the applicant was seven years old, he started delivering newspapers. One of his customers befriended him and, eventually, sexually abused him. Over the following seven years, the man integrated himself into the applicant’s family by arranging work for his father and buying a car for his mother, as well as buying gifts for the applicant and his siblings. The applicant felt indebted to the man as he was friends with his parents and had helped them financially.
During his primary school years, the applicant started to display disruptive behaviour and bed-wetting, which was anxiety related. He left home at the age of 15 and left school half way through year 10. He was teased at school because one of the boys knew that he had been spending time with the perpetrator of the sexual abuse.
After leaving school, the applicant gained employment at a local variety store where he remained for approximately three years. Over the following years, he held various unskilled positions ranging from eight months to seven years of working for one employer.
The applicant had three significant relationships, the first occurring when he was 19 years old and producing a son. The second significant relationship commenced in his late 20s, lasted seven years and produced another son. His third relationship commenced when he was in the second relationship. It was a casual sexual relationship over 10 years, and produced a daughter.
The applicant has an extensive history of severe alcohol abuse which started in his childhood years. He had remained abstinent from alcohol for two years after the imposition of the supervision order in 2010.
The plea hearing
The plea hearing took place on 15 and 17 May 2017.
The applicant submitted that his time on remand constituted a sufficient term of imprisonment. He emphasised that: he had pleaded guilty at an early stage; he suffered from ‘very substantial psychological difficulties … arising from his being himself the victim of crime’; [5] and the further treatment he needed was not available to him in prison.
[5]Transcript of Proceedings, DPP v [McKenzie] (County Court of Victoria, Judge Stuart, 15 May and 17 May 2017) 121 (‘Plea transcript’).
The applicant submitted that, although his offending had occurred when he was drinking heavily, this was a contextual rather than a causative factor and that his psychological problems would make imprisonment more burdensome for him.
The applicant relied on a report of Ms Bea Raymond, a forensic psychologist, dated 5 December 2016 and an addendum to that report dated 10 April 2017. Ms Raymond had assessed the applicant over a period of eight years. These reports were prepared for the Secretary for the purpose of a proceeding to review the supervision order.[6]
[6]The judge granted leave to the applicant to use the reports in the criminal proceeding.
In her 34 page initial report, Ms Raymond assessed the applicant’s risk of sexual reoffending as ‘moderate’. She made the following observations:
Attitudes: [The applicant] appears to have continued to develop insight into the impact of his offending and the precursors to his offending behaviour. … [T]his has been a significant area of change and one that has been maintained for two years without lapsing. It is an area of ongoing development, and it is to his credit that he has not returned to alcohol consumption. [Para 75].
…
Review of [the applicant’s] case indicates that his risk is somewhat contained in part by his ongoing abstinence from alcohol, motivation to remain alcohol free, and in part the application of strategies to contain risk. In consideration of the factors outlined above and developing a possible formulation of future risk scenarios, it is my clinical opinion that [the applicant’s] risk of sexual reoffending is represented in the Moderate category. It should be noted that [the applicant] has demonstrated his capacity to contain risk, the strategies he has employed to address negative emotionality (and abstain from alcohol) is an area that he is continuing to master with success thus far. [Para 110].
In her 19 page addendum report, which was commissioned following the current offences, Ms Raymond reassessed the applicant’s risk of sexual reoffending as ‘Moderate High’. She stated the following:
[The applicant] reported that … he had found it more difficult than he had thought not to consume alcohol as his partner consumes light beer and they attended a local hotel fortnightly. He reported that initially when they went to the hotel, he would leave his girlfriend with other friends including the parents of the seven year old boy to go play the pokies. He explained that at the time of drinking, all aspects of his life were positive. [Para 15].
…
It was reported that he felt he did not have anything to hide from his supports, however at the time of the interview with me, [the applicant] reported that he felt he did not need to discuss his drinking and contact with the child at the hotel with his supports as he was in a positive situation with his girlfriend, secure employment, stable accommodation and support network. [Para 16].
…
[The applicant] appears overly focused on being supportive to his partner in her development of stability in light of her mental health issues and in order to maintain the façade of being supportive of her, he has resumed consuming alcohol and allowed himself to be in the presence of a child. The relationship has since dissolved and he is hopeful to have a friendship with her in the future, reporting that he is not distressed by the demise of the relationship as he understands her reasoning. [Para 61].
[The applicant] may have felt a level of pressure in the relationship without the internal resources to manage the expectations he places on himself. [Para 62].
…
Problems with supervision: Since being made subject to the [supervision order] there have been reported incidents including one breach in the past, but apart from the incident related to alcohol and difficult relationship with his daughter, his skills related to appropriately dealing with stress have developed to not include alcohol. Further exploration of the precursors related to his return to consuming alcohol is warranted and it is hypothesised that in part he did so in order to be viewed by others as ‘normal’ consistent with his strong desire to be seen in a positive light. [Para 71].
…
While [the applicant] was reported to have developed a modicum of insight into his offending behaviour, as evidenced by him placing himself in a position where he has had contact with a child, further development of the precursors that led to this circumstance is warranted. This is considered to be a lapse or potential gap in his relapse prevention strategies. [Page 18].
…
If [the applicant] were to place himself in a position where he does not feel a level of emotional control (desire to be perceived in a positive light by others), there is a heightened risk of lapse into alcohol abuse to alleviate those feelings. This may contribute to him placing himself in a position of ambivalence and disregard for being responsible for his behaviour, which appears to have occurred. He may also be less likely to use relapse prevention strategies to contain risk of sexually abusive behaviours, reoffending if the opportunity of access to children, particularly boys, was to become available. [Page 18–19].
The applicant relied on Ms Raymond’s opinion in the addendum report and submitted that, although his offending had occurred when he was drinking heavily, it was the use of alcohol in the context of ‘negative emotionality’ which created the risk of offending. The applicant submitted as follows:
Ms Raymond posits, says, that as the scenario where [the applicant is] at risk of offending is he gets into a negative frame of mind, there’s a downward spiral involving drinking and then ceasing to care about the consequences, a bit like in a kind of semi-suicidal situation, and therefore offends because he doesn’t really care about the consequences.
This was paradoxically the reverse situation. In fact, everything in his life was working well. He had [a] relationship, he had a stable place to live where he’d lived for eight years and where he enjoyed the company of his neighbours, he had a number of friends …
He’s got a job lined up, he’s about to start a job as a fork-lift driver. Everything’s going very well, so … overconfidently, in an effort to appear normal to his girlfriend, he starts going to a hotel with her, and there’s a reference in the material to the girlfriend observing that he gets nervous when — he doesn’t go to the hotel because the child’s there. He goes to the hotel and the child, at some stage he’s there. He gets nervous when the child’s around.
…
[W]e’re talking about an episode on a single day. He’s never alone with the child, and all the other previous offending has involved him getting himself alone with the child and cultivating a relationship with the child. Now, the present — this is around Christmas time — the present is from him and the girlfriend … I’m instructed, he’s not the initiator of the giving of the present to the child.
… [M]y point is that there’s no ulterior motive.[7]
[7]Plea transcript 106–8.
The judge said that he did not have to accept the opinions expressed by Ms Raymond in her reports but that he accepted parts of the opinions.[8] He said that he had ‘significant difficulties’[9] with the addendum report and further said the following:
I seriously … don’t get much of what’s in Ms Raymond’s report. It seems to paper over very serious aspects of this incident, and provide rationalisations for it.
The truth of the matter seems to be … that this is a continuation of [the applicant] pulling the wool over professionals’ eyes. He knows exactly what he’s up to, he knows what he shouldn’t do, but he just does it.
…
I’m not dismissing [the addendum report] … it’s a question of what weight I give it.[10]
[8]Plea transcript 109, 126.
[9]Plea transcript 126.
[10]Plea transcript 116–17, 125.
In relation specifically to the paragraph from page 18 of the addendum report set out at [32] above, the judge described Ms Raymond’s conclusion as ‘a layer of gossamer sprayed on [the applicant’s] behaviour’.[11] In relation to para 61 of the addendum report, also set out at [32] above, the judge said ‘suggesting that it was just a façade that he starts consuming alcohol again is a nonsense’.[12]
[11]Plea transcript 110–11.
[12]Plea transcript 116.
Counsel for the applicant urged the judge to accept Ms Raymond’s opinion that the applicant had consumed alcohol and had had contact with the young boy in breach of the supervision order because he wanted to appear to be normal to his partner and to ‘fit in’ with their friends. Counsel submitted that the conduct that breached the supervision order was not preparatory to sexual offending because such offending only occurred when the applicant was depressed, had consumed alcohol and had managed to be alone with a young child. Counsel emphasised that there was no risk of sexual offending against the young boy on 2 December 2016 because, at that time, the applicant was feeling positive about his life and was not motivated to engage in sexual offending. The judge made it clear that he did not accept Ms Raymond’s explanation and said that there was no issue before him as to whether the conduct that breached the supervision order was preparatory to sexual offending.
Counsel for the applicant noted that it was unfortunate that Ms Raymond had left the court and was not available to be called for several days. The judge said that he was ‘perfectly prepared to review’ the views he had expressed about the addendum report and offered counsel the opportunity of calling Ms Raymond at a suitable date.[13] Counsel did not take up that offer.
[13]Plea transcript 126.
Sentencing remarks
The judge referred to the findings in his ruling dated 1 October 2015 set out at [16] above and said the following:
Nothing in what has been presented to me does other than reinforce those findings, particularly in relation to [the applicant’s] alcohol abuse and concerns about his resumption of the consumption of alcohol.[14]
[14]Sentencing remarks [18].
The judge noted that the applicant’s initial response to the offending was ‘to flatly deny the event’ and found that this ‘once again’ demonstrated the applicant’s ‘preparedness to lie to persons in authority’.[15] The judge said the following about the applicant’s breach of conditions 7(d) and (g):
[15]Sentencing remarks [20].
[I]t is plain that you deliberately made a decision to flout both of those critical conditions set by the parole board, the supervision order.
You had plainly the support available to you. You chose deliberately to hide what you were doing.
One might have thought that given the extensive interaction with the child on 2 December, you would have reflected upon all that has gone before and sought support. You did nothing of the sort.
As I have said, when first confronted about this matter you denied the incident entirely.
When you were interviewed by the police on 23 December 2016, you stated you only had started drinking alcohol again over the last month, occasionally having bourbon and coke or beer, but that you usually drank water. You told police that on 2 December you consumed two or three bourbon and cokes and two schooners of the beer at the hotel, a not inconsiderable quantity of alcohol.
Thus you, an alcoholic, knowing your vulnerability, resumed your alcohol abuse despite all the supports that were available to you in the community.
This is particularly egregious. These are particularly egregious breaches of the supervision order, particularly having regard to the fact that you had previously been breached and dealt with by Her Honour Judge Cannon on 18 February 2014. That breach involved you knowingly remaining within 50 metres of a children’s playground between 6 am and 7 pm. On that occasion you were sentenced to a period of five months’ imprisonment which was wholly suspended for a period of 12 months.[16]
[16]Sentencing remarks [28]–[34].
In relation to the appropriate sentencing disposition, the judge concluded as follows:
[Counsel for the applicant] submitted that the period that you have been in custody is sufficient and that it is to your benefit and to the community’s benefit that no further period of imprisonment be imposed so that you can resume your treatment under the supervision order. I disagree.
You must be deterred from flagrant breaches such as these of the conditions under the supervision order. The conditions are designed to protect young children from you whilst you are in the community. As I found in my reasons, there is a direct correlation between alcohol abuse, you making contact with children and offending, potentially in the most serious manner, as indeed you have in the past.
Thus, the sentence that I impose must not only denounce your behaviour and discourage others from engaging in such behaviour, but also deter you from further behaviour such as this.
There must also be an aspect of just punishment in the sentence that I impose.[17]
[17]Sentencing remarks [36]–[39].
The judge took into account in the applicant’s favour the fact that he had pleaded guilty at the earliest opportunity.[18]
[18]Sentencing remarks [40].
Although the judge referred to some aspects of Ms Raymond’s reports in his sentencing remarks, he did not state whether he accepted or rejected any of her opinions.
Grounds of appeal
The proposed grounds of appeal are in the following terms:
1 The sentence is manifestly excessive in light of the following:
(a) The early plea of guilty
(b) The applicable maximum penalty
(c) The applicant’s long-standing psychological difficulties
(d) The extra-curial impacts on the applicant of the prosecution
(e)The assessment of Ms Raymond of the reasons for the offending
(f)The long period during which the applicant had been in the community under supervision and the efforts made by the applicant during that period … to address his past offending behaviour.
2The learned sentencing Judge erred in that he unreasonably rejected the opinion of Ms Raymond about the applicant’s motivation for the breaching conduct.
Ground 1: Manifest excess
The applicant submitted that the sentence imposed was ‘simply disproportionate’ to the offending conduct in the circumstances.
The applicant complained about the fact that the judge’s sentencing remarks did not refer to all of the mitigatory factors upon which he relied. Those factors included the following:
(a)The applicant had substantially complied with the supervision order for about eight years.
(b)The applicant had made a full confession when he was interviewed by police.
(c)The applicant had suffered considerable extra curial disadvantage as a result of the charges: he lost his accommodation; he lost his circle of friends; he lost a prospective job; it was likely that he would lose his possessions; and he was a psychologically damaged individual due to the sexual abuse he had suffered as a child.
Finally, the applicant submitted that, as both offences had occurred in a single episode, one would have expected significant concurrency in the sentences for each offence.
The Crown submitted that it could not be said in this case that ‘something has gone obviously, plainly or badly wrong in the exercise of the sentencing discretion’, as is required for a ground of manifest excess to succeed.[19] The Crown submitted that the judge gave due weight to all relevant considerations and that no reduction in sentence is warranted.
[19]The Crown referred to Ayol v The Queen [2014] VSCA 151 [30] citing Clarkson v The Queen (2011) 32 VR 361, 384 [89]; Young v The Queen [2016] VSCA 149 [128].
The Crown accepted that the applicant’s longstanding psychological difficulties and the extra-curial impacts of the prosecution were not specifically referred to in the sentencing remarks, but noted that they were discussed at length during the plea hearing and on the day of sentence.
According to the Crown, while not expressly referred to in the sentencing remarks, the judge did not ignore the eight years the applicant had spent in the community, rather he viewed the relapse as a choice which undermined that fact.
The Crown emphasised that while no offending against children was alleged in this case, both the consumption of alcohol together with contact with young boys had been precursors to the applicant’s offending in the past.
The Crown referred to Director of Public Prosecutions v MV,[20] Director of Public Prosecutions v RM[21] and Acting Secretary to the Department of Justice v McKane[22] which were said to be comparable cases involving failures to comply with supervision orders. In MV, the offender was sentenced to an aggregate 45 days’ imprisonment for leaving his accommodation unaccompanied and consuming alcohol. In RM, the offender was sentenced to 95 days’ imprisonment for two breaches by contact with children under 16. In McKane, the offender was sentenced to nine months’ imprisonment for three breaches by contacting children by telephone and seeking to solicit phone sex with two of the children and oral sex with the third child.
[20]Unreported, County Court of Victoria, 2016 (‘MV’).
[21]Unreported, County Court of Victoria, 2016 (‘RM’).
[22][2012] VSC 459 (‘McKane’).
In our opinion, Ground 1 is not made out.
As the summary procedure was adopted, the maximum total effective sentence that the judge could have imposed for both charges was four years’ imprisonment. The aggregate sentence of one year imposed by the judge could not be described as disproportionate relative to the maximum sentence that could have been imposed.
Having regard to the significant mitigating factors on which the applicant relied, the sentence fell towards the upper end of the range of sentences available to the judge, but it was not manifestly excessive.
The offending was very serious. The applicant was well aware that his prior offending against young children coincided with his consumption of alcohol.[23] He also knew that the supervision order was made to protect young children from him. Further, he would have been aware that, in order to prevent further offending against children, it was imperative that he avoid having contact with children, as required by the supervision order. He was also aware of the importance of abstaining from consuming alcohol, as also required by the supervision order. Despite this knowledge, the applicant made a deliberate choice to have contact with a young boy and consume alcohol on 2 December 2016.
[23]See the report of Dr Dion Gee, forensic psychologist, dated 24 July 2015, quoted in para 26 of the summary of prosecution opening.
The applicant’s contact with the young boy — who was in the same age group as the boys he had previously sexually abused — was neither incidental nor fleeting; it extended over 45 minutes and involved various forms of touching, including hugging. Although the toy monkey was purchased by his partner as a gift for the young boy, the applicant alone gave him the toy. It is likely that the gift would have made the boy favourably disposed towards the applicant and made it easier for him to maintain contact with the boy while the two of them were in the hotel.
While the applicant was charged with breaching condition 7(d) of the supervision order by consuming alcohol on 2 December 2016, that breach was not an isolated event, as he admitted to police that he had been drinking for the past month.
The applicant’s breaches must also be considered in the context of the fact that, rather than seeking assistance from his supports to avoid the breaches, he lied to them — and Ms Raymond — about the breaches.
In these circumstances, the applicant’s conduct on 2 December 2016 represented deliberate defiance of the supervision order. Given the importance of compliance with the supervision order in protecting young children, the applicant’s offending rendered denunciation, just punishment, protection of the community, general deterrence and specific deterrence the pre-eminent sentencing considerations.
The above analysis applies even if it is accepted, as Ms Raymond concluded, that the applicant’s offending can be explained by a desire on his part to keep up appearances with his partner and circle of friends and thus ‘fit in’. Such a motive does not in any way lessen the seriousness of the offending and the need to give effect to the sentencing considerations set out above.
Although the judge’s sentencing remarks did not refer to all the mitigating factors upon which the applicant relied, the fact that they were the subject of detailed discussion at the plea on the same day as the sentence was imposed, and two days before that day, means that it can be safely assumed that the judge took them into account.
In the light of the above discussion and the cases to which the Crown referred, it cannot be said that the sentence imposed on the applicant was wholly outside the range of sentencing dispositions reasonably open to the judge.
Ground 2: Rejection of Ms Raymond’s opinion
The applicant submitted that, although the judge’s sentencing remarks did not express any view on Ms Raymond’s opinion about the reason for his offending, it was clear from the judge’s comments during the plea that he had rejected that opinion. According to the applicant, it was not open, in the House v King[24] sense, for the judge to reject Ms Raymond’s opinion in the light of the following:
(a)Ms Raymond had regularly assessed the applicant over a period of more than eight years, and had conducted those assessments by lengthy personal interviews combined with reviews of the Corrections Victoria file material.
(b)The addendum report was relied upon by the Secretary in the proceeding for review of the supervision order.
(c) The prosecution did not argue that the addendum report should be rejected.
(d)Ms Raymond’s opinion was consistent with the applicant’s history and conduct as documented over the previous eight years.
[24](1936) 55 CLR 499.
In oral submissions, the applicant complained about the fact that the judge’s sentencing remarks did not include a finding as to whether the applicant’s conduct in breach of the supervision order was preparatory to sexual offending against the young boy, even though that issue had been discussed on the plea. The applicant contended that the sentence imposed cannot be justified in the absence of a finding that the conduct was preparatory to sexual offending.
According to the applicant, as the risk that the supervision order is intended to guard against is the risk of sexual offending, the absence of a finding that the breaching conduct was preparatory to such offending meant that the relevant risk did not exist. It followed, so it was said, that the judge’s assessment of the seriousness of the applicant’s breaching conduct was based on an erroneous characterisation of the underlying risk and that this vitiated the sentencing process.
The Crown submitted that it was open to the judge to accept all, some or none of Ms Raymond’s reports. It was open to the judge, so it was said, to reject the opinion of Ms Raymond as to the applicant’s motivation for the breaching conduct and in all the circumstances it was not unreasonable to do so.
The Crown contended that the judge’s rejection of Ms Raymond’s ‘fitting in’ explanation for the applicant’s breaching conduct did not mean that he accepted the proposition that the conduct was preparatory to sexual offending. According to the Crown, the judge did not make a finding on that issue and it was not necessary for him to do so.
The Crown argued that the sentence was appropriate having regard to the judge’s finding that the breaching conduct was egregious. According to the Crown, a finding that the conduct was preparatory to sexual offending was not necessary for the sentence to be within range.
In our opinion, Ground 2 is not made out.
The judge was not obliged to accept the written opinion evidence of Ms Raymond. The judge viewed the CCTV footage and was able to assess for himself the nature and duration of the applicant’s offending on 2 December 2016. As it happened, the judge accepted some parts of Ms Raymond’s evidence. He was entitled to reject her opinion that the applicant’s offending was explicable by his desire to ‘fit in’ with his circle of friends notwithstanding that the evidence was not challenged by the prosecution.[25] The facts that Ms Raymond’s opinion was within her field of expertise and that she had had a long involvement with the applicant did not mean that the judge was obliged to accept her opinion. Furthermore, the fact that the Secretary had relied on Ms Raymond’s reports in a different proceeding — namely, the proceeding to review the supervision order — had no bearing on whether the judge should accept her opinion in the criminal proceeding to which the Secretary was not a party.
[25]Ross v The Queen [2015] VSCA 302 [24]; R v Hillman [2005] VSCA 41 [15].
Despite the emphasis that the applicant placed on it, Ms Raymond’s opinion about the applicant’s motive for his offending was not a central consideration in the exercise of the sentencing discretion. Motive was not an element of the offences committed by the applicant. While the existence of an incriminating motive may have been treated as an aggravating feature of the offending, for the reasons discussed under Ground 1, the existence of an innocent motive would not have enabled the offending to be treated as anything other than very serious.
The applicant fell to be sentenced for his breaches of the supervision order. The sentencing task was not dependent on a finding as to whether the breaching conduct was preparatory to sexual offending. The judge did not err by not making a finding on this issue and, instead, focusing on the seriousness of the conduct for which the applicant was charged. That conduct was correctly described as egregious and as warranting condign punishment despite the mitigating factors upon which the applicant relied. We reject the applicant’s submission that the judge mischaracterised the underlying risk to which the breaching conduct gave rise.
Finally, the judge’s comments during the plea made clear to the applicant the judge’s then assessment of Ms Raymond’s addendum report. The judge offered to accommodate the giving of oral evidence by Ms Raymond with a view to persuading him to review his assessment, but the applicant’s counsel elected not to take up that offer.[26]
[26]See [37] above.
Conclusion
For the above reasons, the application for leave to appeal will be refused.
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