Adam Wright (a pseudonym)[1] v The Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0014

ADAM WRIGHT (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.

---

JUDGES:	EMERTON JA
WHERE HELD:	Melbourne
DATE OF HEARING:	Determined on the papers
DATE OF JUDGMENT:	13 July 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 137
JUDGMENT APPEALED FROM:	DPP v [Wright] (Unreported, County Court of Victoria, Judge Meredith, 10 November 2021)

---

CRIMINAL LAW – Appeal – Sentence – 5 charges of indecent assault, 2 charges of attempted incest – Where applicant committed acts of abuse against daughter over many years – Total effective sentence 8 years 6 months – Whether sentence manifestly excessive – High moral culpability – Delay between offending and sentence – Whether insufficient weight given to applicant’s age, good character and prospects of rehabilitation – Whether insufficient weight given to principle of totality – Sentence within range – Leave to appeal refused.

---

Appearances (on the papers)
Counsel
Applicant:		Mr M R Page
Respondent:		Ms E Drake
Solicitors
Applicant:	Emma Turnbull Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

EMERTON JA:

Introduction

The applicant was convicted by jury trial of six counts of indecent assault[2] and one count of attempted incest.[3] Following a plea hearing, he was sentenced as follows:
[2]Four of the charges (charges 1–4) related to offences under s 44 of the Crimes Act 1958. Two charges (charges 7 and 8) were contrary to s 39 of the Crimes Act. No verdict was taken from the jury in relation to a further charge of indecent assault (charge 6), which was charged as an alternative lesser charge to the charge of attempted incest (charge 5).
[3]This charge (charge 5) was contrary to ss 44(1) and 321M of the Crimes Act.

Charge	Offence	Maximum penalty	Sentence	Cumulation
1	Indecent assault [Crimes Act s 44]	5 years’ imprisonment	3 years’ imprisonment	1 year
2	Indecent assault [Crimes Act s 44]	5 years’ imprisonment	2 years’ imprisonment	8 months
3	Indecent assault [Crimes Act s 44]	5 years’ imprisonment	1 years’ imprisonment	-
4	Indecent assault [Crimes Act s 44]	5 years’ imprisonment	3 years’ imprisonment	1 year
5	Attempted incest [Crimes Act ss 44(1) and 321M]	20 years’ imprisonment	5 years’ imprisonment	Base
7	Indecent assault [Crimes Act s 39]	10 years’ imprisonment	2 years and 6 months’ imprisonment	8 months
8	Indecent assault [Crimes Act s 39]	10 years’ imprisonment	9 months’ imprisonment	-
Total Effective Sentence:		8 years 6 months’ imprisonment.
Non-Parole Period fixed:		4 years and 6 months.
Pre-Sentence detention:		35 days
Other orders:		Reporting for 15 years pursuant to the Sex Offenders Registration Act 2004

The applicant now applies for leave to appeal against this sentence. He relies upon a single ground of appeal, as follows:
The individual sentences, orders for cumulation, the total effective sentence and the non-parole period were all manifestly excessive, in that insufficient weight was given to:
(a)the age of the applicant and his lack of prior criminal history;
(b)his low risk of re-offending and good prospects for rehabilitation;
(c)current sentencing practices; and
(d)the principle of totality.
For the reasons that follow, the application for leave to appeal will be refused.

Circumstances of offending

The circumstances of the offending are set out in trial judge’s reasons for sentence.[4] They are uncontroversial.
[4]DPP v [Wright] (Unreported, County Court of Victoria, Judge Meredith, 10 November 2021) (‘Reasons’).
The applicant was born on 24 March 1948. The complainant, his biological daughter, was born on 19 February 1971. The Crown’s case, accepted by the jury, was that between February 1985 and August 2006, the applicant committed or attempted to commit a number of offences against the complainant, as detailed below.
Charge 1 (a course of conduct charge) involved the applicant touching the genital area of the complainant when she was 14 to 15 years old. At the time, the applicant was working in Melbourne and living in regional Victoria. The complainant would see him on weekends and would bring coffee into the bedroom that he shared with his wife. The applicant would invite the complainant to get under the covers. The complainant would sit between the applicant’s legs and, while he was cuddling her, the applicant would touch her genital area underneath her pyjamas for what she estimated to be a few minutes on each occasion. This behaviour occurred every week or so, over a period of three months.
Charge 2 (indecent assault) occurred when complainant was approximately 16 years old. The applicant would have the complainant lie on top of him on his bed, and, while they were both clothed, he would rub his groin into her. Although the complainant estimated the applicant to have engaged in this conduct on three or four separate occasions, the charge related only to the last occasion.
Charges 3 and 4 (both indecent assault) arose out of a single incident. It involved the applicant going into the room in which the complainant was sleeping and pulling up her nightie, kissing and groping her breasts (charge 3) and then pulling her underwear down and licking her vagina (charge 4). The complainant curled up in a ball and started crying for her mother when she heard the applicant unzipping his pants, at which point he left the room.
Charge 5 (attempted incest) relates to an incident that occurred when the complainant was an adult woman, aged approximately 27, living alone in a house in the country with her two children, having separated from their father. The applicant was working in Melbourne and would attend the complainant’s house on Friday evenings. On the relevant occasion, the applicant grabbed the complainant by the arm, pulling her into a bedroom. The complainant’s children were asleep nearby at the time. The applicant then pulled down the complainant’s pants, removed them, and attempted to place his flaccid penis into her vagina. His penis touched her genital or groin area. At this point, one of the complaint’s children woke up and began coughing and crying. Upon hearing this, the applicant stopped and allowed the complainant to attend to her child.
Charge 7 (indecent assault) occurred in approximately the same timeframe as charge 5. The applicant again visited the complainant’s house and took the complainant into a bedroom, where he attempted to pull down her pants. The complainant said ‘no’, and kept pulling her pants up, but the applicant persisted. When the complainant said, ‘You’re my dad and it’s wrong’, the applicant stopped and left the house.
Charge 8 (indecent assault) concerned an incident that took place in 2006 on the applicant’s property in regional Victoria. It involved the applicant grabbing the complainant’s breasts and making a joke about whether they contained UHT milk. This took place in the presence of her 8-year-old son.

Personal circumstances

The personal circumstances of the applicant are also set out in the reasons for sentence.[5] They too are undisputed.
[5]Reasons [17]–[23], [26].
The applicant was born in Carlton as the fourth of seven children. He left school in Year 10 and commenced an apprenticeship as a boilermaker, but later gave up that line of work. He subsequently had various jobs, including in the transport and concreting industries, and as a labourer. In 2007, he retired after being diagnosed with cancer, which is now in remission.
The applicant met his wife when he was 21. She remains supportive of him. Together they had three children: a daughter (the complainant) and two sons, one of whom left home at 16 and has since been effectively estranged.
The applicant has been actively involved in the CFA since moving to the Ballarat area in 1980, and especially since his retirement in 2007. A number of references were tendered on the plea from members of the applicant’s local community. They generally spoke highly of the applicant and emphasised his community mindedness.
At the time of sentencing the applicant was 73 years of age. While he suffers a number of medical conditions consistent with his advancing age, the judge found that these conditions could be managed within the custodial setting.
The applicant has no other convictions recorded against him. There is no suggestion that the applicant has engaged in any similar offending or inappropriate behaviour since his offending on charge 8 in 2006.

Reasons for sentence

Having recounted the applicant’s offending and personal circumstances, the sentencing judge turned to consider the factors relevant to the exercise of his sentencing discretion.
The judge first observed that the applicant had gone into custody during the COVID-19 pandemic and that he would serve his time as a ‘protected prisoner’, making the conditions of his imprisonment more burdensome.[6]
[6]Reasons [24]–[25].
Next, the judge noted the gap of some 15 years between the applicant’s last offending and his arrest. While accepting that this delay was relevant to sentencing, his Honour considered that the very nature of the applicant’s offending — including the power imbalance between him and the complainant, and the fact that the complainant was not believed by her family (including her mother) when she did eventually report the offending — contributed to that delay.[7]
[7]Reasons [26]–[27], [30]
The judge described the applicant’s offending as characterised by a ‘shameless and reprehensible breach of the trust that should exist between every parent and child’.[8] He detailed the effects the conduct had on the applicant, including the disruption to her life and a fracturing of her relationship with her mother.[9]
[8]Reasons [28].
[9]Reasons [29]–[30].
In light of his age and the positive reports from his referees, the judge considered the applicant’s prospects of rehabilitation to be ‘positive’.[10] Likewise, although the applicant had contributed to the delay between his offending and his arrest, the judge accepted that the passage of time ultimately placed him at a lower risk of reoffending. Added to this was the fact that the applicant’s offending only related to his daughter, and the situation in which he offended was unlikely to arise again.[11] On these bases, the judge elected to fix a non-parole period that was lower than it would ordinarily have been.[12]
[10]Reasons [31].
[11]Reasons [32].
[12]Reasons [33].
As for the need for general deterrence, the judge held that this factor assumed ‘considerable significance as a sentencing consideration’, notwithstanding the passage of time since the offending. Importantly, the applicant’s culpability was ‘marked’ by several factors, including the nature and frequency of his offending, and the fact it involved his daughter and he had abused his trusted position as her parent for his own sexual needs.[13]
[13]Reasons [34].
In relation to charge 1 specifically, the judge recognised that the offending involved a course of conduct and that he was obliged to impose a sentence which reflected the totality of the offending constituting that course of conduct.[14] Specific factors informing sentencing in cases involving a course of sexual offending (such as this) included the nature of the acts, the frequency and persistence of them, the age and other personal circumstances of the complainant, and the impact which the offending had on her.[15]
[14]Reasons [35]–[36]
[15]Reasons [37].
More generally, the judge noted that each of the charges related to ‘sexual offences’ within the meaning of Part 2A of the Sentencing Act 1991. As it was inevitable that a term of imprisonment would be imposed on charges 1 and 2, the applicant would need to be sentenced as a ‘serious sexual offender’ for the remaining indecent assault offences. This meant, consistently with s 6D, that the judge had to have regard to protection of the community from the applicant as the principal purpose when determining the length of each of those sentences. Nonetheless, given the applicant’s age and the delay, his Honour did not consider it necessary to impose a sentence that was otherwise longer than the proportionate gravity of the applicant’s offending.[16]
[16]Reasons [38]–[40].
Finally, the judge gave consideration to the question of cumulation. While his Honour noted that the sentences on each charge after charge 2 would need to be served cumulatively unless he directed otherwise,[17] he considered orders for some or total concurrency to be appropriate. This was necessary to reflect:
(a)the fact charges 3 and 4 occurred during the same episode of offending;
(b)the total duration of the applicant’s offending;
(c)the modified operation of the principle of totality;
(d)the lack of the need for a disproportionate sentence to be imposed to protect the community;
(e)the applicant’s age; and
(f)the applicant’s low risk of reoffending.[18]
[17]Pursuant to Sentencing Act s 6E.
[18]Reasons [41].

Submissions

The applicant accepts that manifest excess is a difficult ground to make out.[19] However, he points to a number factors which he says show the individual sentences, the orders for cumulation, the total effective sentence and the non-parole period to be wholly outside the range of sentencing options reasonably open.
[19]See Clarkson v The Queen (2011) 32 VR 361, 384 [89]; [2011] VSCA 157.
Firstly, he submits that insufficient weight was given to his age, character, and lack of prior history. The applicant was 73 at the date of sentencing. He will be 81 by the time his current sentence ends. At that age, he submits, his likelihood of reoffending will be greatly reduced. And, while he accepts that the mitigatory value of his lack of criminal history is diminished by the length of time over which the offending occurred, the applicant nonetheless submits that it was an important factor, as was the evidence attesting to his good works in the community and his otherwise general good character.
Secondly and relatedly, the applicant says that insufficient weight was given his low risk of reoffending and his positive prospects of rehabilitation. He points to the fact that the most recent incident for which he was convicted occurred some 15 years before the trial, in 2006. Since then he has not come to the attention of police, and there was no suggestion of other behaviour of a similar kind. The applicant’s advanced age was also said to make him unlikely to reoffend in the future. While the judge assessed the applicant’s prospects of rehabilitation as ‘positive’, this assessment was not ultimately reflected in his overall sentence.
Thirdly, the applicant submits that the individual sentences, particularly on charge 5 (attempted incest), are excessive in light of current sentencing practices. He relies in particular on the distinction drawn by this Court in Director of Public Prosecutions v Dalgliesh (a pseudonym)[20] between ‘mid-range offending’ and ‘worst case offending’ in cases of incest, the distinguishing factors being:
(a)the nature and extent of the offending conduct;
(b)its frequency and duration; and
(c)the circumstances in which it occurs.[21]
[20][2016] VSCA 148 (‘Dalgliesh’).
[21]Ibid [73] (Maxwell ACJ, Redlich and Beach JJA).
Taking into account these factors, the applicant submits that the objective seriousness of his offending falls in the ‘middle range’. While conceding that all offending of this type is serious, he points out that his offending involving attempted incest was restricted to one incident of short duration. This can be contrasted, he says, with the offending in Director of Public Prosecutions v Tewkesbury (a pseudonym),[22] where the respondent was resentenced to sentences of 5 years’ and 5 years and 3 months’ imprisonment on two counts of incest, each of which was accompanied by the use of force and coercion, and the second of which was videoed.
[22](2018) 271 A Crim R 205; [2018] VSCA 38 (‘Tewkesbury’).
As for the indecent assault charges, the applicant accepts that the seriousness of these charges was heightened by the fact they occurred over a relatively lengthy period, but submits that the sentences were excessive in light of the matters found in mitigation.
Finally, the applicant submits that insufficient weight was given to the principle of totality. As noted, although the applicant fell to be sentenced as a serious sexual offender on charges 3, 4, 5, 7 and 8 pursuant to s 6E of the Sentencing Act, the judge decided not to fully cumulate the sentences. According to the applicant, having so decided, his Honour then had to find the balance between the legislative intent behind s 6E and the need to apply the principle of totality. In the applicant’s submission, that balance was not appropriately struck, and the orders for cumulation ‘bespeak the judge failing to give adequate weight to the competing factors which called for totality to play a role in this sentence’.
Ultimately, the applicant submits that the imposition of a base sentence of 5 years’ imprisonment with orders for cumulation producing a total effective sentence of 8 years and 6 months gives rise to a total effective sentence that is manifestly excessive. Similarly, the total cumulation of 3 years 6 months ordered on the base sentence of 5 years ought to be viewed as manifestly excessive given the gravity of the offending and the proximity of the individual offences.
The respondent submits that there is nothing in the judge’s reasons revealing a failure to afford adequate weight to the matters raised by the applicant, or to suggest that the individual sentences and the total effective sentence imposed fall outside the range open in the sound exercise of sentencing discretion.
According to the respondent, there are a number of factors that heighten the seriousness of the applicant’s offending, and make it deserving of condign punishment.
At a general level, the respondent points to the fact that the offending involved a gross breach of trust and was committed over a lengthy period — commencing when the complainant was a child and persisting into adulthood.
The respondent emphasises the following specific features of the offending forming the basis of the individual charges:
(a)With respect to charge 1:
(i)the young age of the complainant (approximately 14 or 15);
(ii)the fact the applicant touched the complainant’s genital area under her pyjamas;
(iii)the fact the acts were committed effectively under the guise of the applicant cuddling the complainant in her parent’s bed whilst next to the victim’s mother; and
(iv)the frequency of the respondent’s offending — his acts having occurred ‘every week or other’ for a period of three months.
(b)With respect to charge 2:
(i)the young age of the complainant (approximately 15 or 16); and
(ii)the fact the applicant had contact with the complainant’s groin (albeit clothed) for his own sexual gratification.
(c)With respect to charges 3 and 4:
(i)the vulnerable state of the complainant (sleeping in her own bed in her own room where she was entitled to feel safe);
(ii)the fact the applicant’s conduct involved pulling up the complainant’s nightdress and pulling down her underwear to commit the indecent assaults;
(iii)the fact there was direct skin contact;
(iv)the fact the applicant commenced his offending by unzipping his pants; and
(v)the fact the offending only ceased when the complainant curled up in a ball and started crying for her mother.
(d)With respect to charge 5:
(i)the vulnerability of the complainant (having separated from her husband, and with her young children asleep in the home);
(ii)the fact the offending occurred in the complainant’s own home (an isolated rural property);
(iii)the use of force (grabbing and dragging the complainant into a room and removing her underwear) in the face of resistance; and
(iv)the fact there was direct skin contact (penis to groin/genitals).
(e)With respect to charge 7:
(i)the use of force; and
(ii)the fact the offending involved repeated attempts to pull the complainant’s pants down despite verbal protestation and physical resistance.
(f)With respect to charge 8:
(i)the fact the offending occurred in the presence of the complainant’s son, which would have been humiliating for her.

As for matters in mitigation, the respondent submits that the judge carefully considered each matter put by the applicant. His Honour took into account the applicant’s age and good character, the additional burden resulting from his confinement during the COVID-19 pandemic, his positive prospects of rehabilitation, and the delay in the charges being brought. These matters were afforded due weight as part of the judge’s instinctive synthesis, but were ultimately balanced against the gravity of the offending and the impact on the victim, as well as other sentencing objectives, such as the need for general deterrence, denunciation and just punishment.
With respect to these last three considerations, the respondent submits that the applicant’s moral culpability was high. He was not entitled to a discount for a plea of guilty, he exhibited no remorse and he took no responsibility for his actions. Nothing raised by the applicant in mitigation reduced his culpability.
The respondent further submits that the judge made no error in applying the principle of totality. Each of the sentences imposed was proportionate to the gravity of the offending in each charge, and largely reflective of the submissions and concessions made by the applicant’s counsel on the plea.
The respondent submits that the orders for cumulation were appropriate. While the statutory presumption in favour of cumulation applied to charges 3, 4, 7 and 8, the judge nonetheless ordered concurrency with respect to charges 3 and 8. Collectively, the orders for cumulation amount to just over 35 per cent of the total effective sentence imposed. This is modest, particularly given the temporally and factually distinct nature of each of the charges upon which cumulation was ordered.
As to the non-parole period, the respondent points out that as a matter of practice, the ratio between the head sentence and non-parole period is usually between 60 per cent and 75 per cent. The non-parole period here is less than 53 per cent of the total effective sentence. In light of the gravity of the applicant’s offending, the non-parole period imposed might be described as ‘lenient’.
Finally, as to current sentencing practices, the respondent submits that the decisions referred to by applicant — including Dalgliesh and Tewkesbury — are not precedents to be applied or distinguished, and while they may assist in indicating a sentencing practice, this is not determinative of the range of sentences reasonably open. In any event, the respondent submits, even if one accepts that the applicant’s offending falls within the ‘middle range of offending’ for the offence of attempted incest, the individual sentence imposed of 5 years reflects only 25 per cent of the legislative maximum.

Analysis

As this Court said in Clarkson v The Queen,[23] the ground of manifest excess will only succeed if it can be shown that the sentence was ‘wholly outside the range of sentencing options available’ to the sentencing judge. That is, it must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he or she did, if proper weight had been given to all the relevant circumstances of the offending and of the offender. This is a stringent requirement, difficult to satisfy. It reflects the oft-repeated policy that sentencing is for judges and magistrates at first instance. Sentencing is not the task of appellate courts, except where clear error is shown.
[23](2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Leave, Redlich and Harper JJA); [2011] VSCA 157.
In this case, the respondent’s submissions as to why the individual sentences, the total effective sentence and the non-parole period are appropriate and well within range are compelling, and I accept them.
The base sentence of 5 years’ imprisonment attached to attempted incest, reprehensible conduct involving the sexual assault of the applicant’s own daughter in her home (apparently an isolated farmhouse) with her children nearby. It involved dragging her into another room, forcibly removing her clothing and placing his flaccid penis against the complainant’s vagina. This followed the applicant’s intermittent sexual abuse of the complainant over many years, beginning when she was quite young, and reflected the applicant’s apparent view that the complainant was a piece of sexual property that he could abuse at will. The maximum sentence for attempted incest is 20 years’ imprisonment. In the circumstances, a sentence of 5 years was well within the range.
In my view, the orders that were made for cumulation were also the product of an entirely appropriate exercise of the sentencing discretion. The offending consisted of intermittent but serious sexual offending against the applicant’s own daughter over many years. There was a presumption of cumulation in respect of charges 3, 4, 7 and 8 by reason of s 6E of the Sentencing Act. The sentencing judge was at pains to carefully consider the question of cumulation and decided that full cumulation was not warranted in the circumstances. He did not order any cumulation at all in respect of charges 3 and 8. The approach taken by the judge was generous to the applicant.
Likewise, I consider that the non-parole period imposed might be described as lenient.
The applicant’s moral culpability was high. He was not entitled to a discount for a plea of guilty, he exhibited no remorse and he took no responsibility for his actions. Neither the amount of good work he has done in the community nor the good opinion of his friends and colleagues reduces this moral culpability. He offended atrociously against his own daughter over many years and treated her with utmost disrespect. He has caused her significant harm. Moreover, his offending conduct is of a kind requiring strong denunciation and respect of which general deterrence is a very important sentencing consideration.
I do not consider that the applicant’s ground of appeal is reasonably arguable.

Conclusion

The applicant’s application for leave to appeal against sentence is refused.

- - -

[2022] VSCA 137

13 July 2022