Argyle v The King

[2023] VSCA 51

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0173

LIAM ARGYLE (A PSEUDONYM)[1]	Applicant
v
THE KING	Respondent

[1]To ensure that there is no possibility of identification of the victims of sexual assault offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

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JUDGES:	McLEISH JA
WHERE HELD:	Melbourne
DATE OF HEARING:	Determined on the papers
DATE OF JUDGMENT:	14 March 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 51
JUDGMENT APPEALED FROM:	DPP v [Argyle] (Unreported, County Court of Victoria, Judge Todd, 31 October 2022)

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009

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CRIMINAL LAW – Leave to appeal – Sentence – Sexual offending against stepdaughters – Offending spanning eleven years – Three charges of indecent assault – Seven charges of indecent assault upon a female – Total effective sentence 4 years and 3 months’ imprisonment – Non-parole period 2 years and 2 months – Whether sentence manifestly excessive – Offender of advanced age – Sentences within range – Leave to appeal refused.

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Counsel for written submissions
Applicant:		Ms A Renieris
Respondent:		Ms N Rogers SC
Solicitors
Applicant:	Victoria Legal Aid
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

MCLEISH JA:

1. After a trial before a judge of the County Court sitting alone, the applicant was convicted of three charges of indecent assault (contrary to s 44(1) of the Crimes Act 1958 as amended by the Crimes (Sexual Offences) Act 1980) and seven charges of indecent assault upon a female (contrary to s 55(1) of the Crimes Act 1958 as amended by the Crimes Amendment Act 1967). He was sentenced on 28 October 2022 to a total effective sentence of four years and three months’ imprisonment with a non-parole period of two years and two months, as set out below.

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
4	Indecent assault (s 44(1) of the Crimes Act)	5 years	18 months	3 months
7	Indecent assault (s 44(1) of the Crimes Act)	5 years	1 year	2 months
9	Indecent assault (s 44(1) of the Crimes Act)	5 years	1 year	2 months
11	Indecent assault upon female (s 55(1) of the Crimes Act)	5 years	15 months	3 months
12	Indecent assault upon female (s 55(1) of the Crimes Act)	5 years	15 months	3 months
13	Indecent assault upon female (s 55(1) of the Crimes Act)	5 years	15 months	3 months
15	Indecent assault upon female (s 55(1) of the Crimes Act)	5 years	2 years and 2 months	Base
16	Indecent assault upon female (s 55(1) of the Crimes Act)	5 years	18 months	4 months
17	Indecent assault upon female (s 55(1) of the Crimes Act)	5 years	18 months	4 months
18	Indecent assault upon female (s 55(1) of the Crimes Act)	5 years	1 year	1 month
Total Effective Sentence:		4 years and 3 months
Non-Parole Period:		2 years and 2 months
Pre-sentence Detention Declared:		N/A
Section 6AAA Statement:		N/A
Other Relevant Orders: 1.     Serious sexual offender on charges 9, 11, 12, 13, 15, 16 and 18.[2] 2.     Registration under the Sex Offenders Registration Act 2004. 3.     Reporting for life.

[2]It is not immediately clear why the applicant was not sentenced as a serious sexual offender in respect of charge 17. It is possible that the omission of this charge is a slip. Nothing turns on it.

1. The offences were committed against two of the applicant’s stepdaughters between 1971 and 1982 when he was aged between 28 and 39. He was sentenced on the basis that one stepdaughter was 17 and the other was aged between six and 15 at the time of the offending.

2. In the former case, the offending involved digital penetration (which was not an isolated occasion), forced masturbation of the applicant and forceful kissing while grabbing the girl’s breasts and vagina.[3] In the latter case, there were three charges of digital penetration when the victim was aged nine, 11 and 12 respectively,[4] and four charges of indecently removing her clothing (and in one case kissing her in that context).[5]

   [3]Charges 4, 7 and 9 respectively.

   [4]Charges 15, 16 and 17.

   [5]Charges 11, 12, 13 and 18.

3. The applicant seeks leave to appeal on the ground of manifest excess in respect of the individual sentences, orders for cumulation, total effective sentence and non-parole period.

Sentencing remarks

1. In very careful and thorough sentencing remarks, the judge characterised the applicant’s offending as predatory and persistent, and of the utmost seriousness, finding that his moral culpability was ‘extremely high’.[6] The judge noted that the father of the victims had died and that the applicant owed them ‘a father’s care and protection’, but instead persistently and repeatedly sexually abused them.[7]

   [6]DPP v [Argyle] (Unreported, County Court of Victoria, Judge Todd, 31 October 2022) [42], [43] (‘Sentencing Remarks’).

   [7]Ibid [40].

2. The judge noted a number of matters in mitigation. First, the applicant came before the Court as a person of previous good character, although the weight to be afforded to that factor was somewhat lowered because the conviction was for offending against two victims over a period of a decade.[8]

   [8]Ibid [53].

3. The judge also had regard to various medical materials tendered on the plea. The applicant suffered from a number of serious respiratory and cardiac problems, in particular from idiopathic pulmonary fibrosis, a ‘chronic scarring lung condition’ for which the usual life expectancy was said to be three to five years. The condition left the applicant breathless and more vulnerable to acute exacerbation if infected by the COVID-19 virus, as he had already been once in February 2022.[9]

   [9]Ibid [54].

4. Next, the applicant was 79 years old and it was a weighty consideration that he was likely to spend the whole or a very substantial period of the remainder of his life in prison. The judge accepted that he was ‘a frail man with serious medical issues’.[10]

   [10]Ibid [57].

5. The judge noted a psychological report which had been tendered but which contained no clear diagnosis. She noted that no Verdins[11] submissions were made on the basis of this material. She accepted, however, that the applicant was currently experiencing a ‘modest cognitive decline’ and may continue to do so in the future. She accepted that this would add to the applicant’s experience of distress while serving his sentence.[12]

   [11]R v Verdins (2007) 16 VR 269.

   [12]Sentencing Remarks [60]–[61].

6. The judge noted other burdens of imprisonment, including the fact that measures taken to manage the COVID-19 pandemic caused imprisonment to be more onerous for prisoners, that the applicant had additional vulnerability in this respect, that he had concerns about the health of his wife (who still supported him) and that, being a non-citizen, he would also have to live with the uncertainty as to whether he would, upon release, be deported (having lived in Australia since 1964).[13]

   [13]Ibid [63]–[65].

7. The judge also took into account the delay that had taken place in arriving at the applicant’s sentence, both between the offending and the applicant being charged, and between his interview with police on 6 March 2019 and his conviction on 29 July 2022 and sentence on 28 October 2022. In relation to the first category of delay, the judge took into account that there was no proven reoffending during the period, but at the same time, the applicant had the benefit of not suffering the opprobrium associated with being a convicted child sex offender. In relation to the second category of delay, which the judge said was largely attributable to the COVID-19 pandemic, the judge said that having the matter hanging over him in an enduring way had been stressful to the applicant and was a matter of significant mitigation.[14]

   [14]Ibid [67]–[73].

8. The judge found that there was no evidence of remorse.[15]

   [15]Ibid [74].

9. In respect of current sentencing practices, the judge noted that the parties had not advanced any evidence of sentencing practices at the time of the offending, and that she had not discerned any such practice herself.[16]

   [16]Ibid [75], citing Stalio v The Queen [2012] VSCA 120.

10. The judge summarised the victim impact statements provided by the two victims and the son and daughter of the applicant. The judge stated that the applicant’s offending had ‘coursed like poison’ through his whole family over decades.[17]

    [17]Sentencing Remarks [83].

11. The judge stated that the role of the sentence in deterring others was very significant but that specific deterrence and community protection were of no significance in the present case, in light of the ill-health and advanced age of the applicant and his ‘changed family circumstances’ (which appears to have been a reference to the estrangement of the applicant from his children and stepchildren and their families).[18] The judge held that the applicant had an absence of insight into his offending. She noted that he was to be sentenced as a serious sexual offender for each charge after the sentence imposed on charge 7.[19]

    [18]Ibid [87].

    [19]Ibid [89].

12. The judge rejected a submission that a suspended sentence was appropriate. She stated that, notwithstanding the applicant’s age and ill-health, and having regard to all the sentencing factors that the case presented, the gravity of his offending and the need for general deterrence and denunciation made a suspended sentence insufficient to do justice to the case.[20]

    [20]Ibid [92].

Applicant’s submissions

1. The written case for the applicant accepts that the offending was ‘undoubtedly serious’ and caused long-lasting harm to the victims. It was submitted that the sentence was nonetheless manifestly excessive, especially when regard is had to the advanced age of the applicant and his ill-health and short life expectancy, meaning that there is a real risk that he will die in custody. Reliance was also placed on the fact that the applicant poses little to no risk of reoffending.

2. The applicant submitted that the prospect that an offender may die in prison must be taken into consideration when sentencing.[21] Medical reports demonstrated that he suffered from an incurable and life-limiting lung disease with depleted lung function. He also suffered from further multiple medical conditions including ischemic heart disease with previous coronary artery bypass grafts, chronic anaemia, atrial fibrillation and peripheral vascular disease. The applicant was likely in future to require oxygen for between 16 and 24 hours each day.

   [21]Cumberbatch v The Queen (2004) 8 VR 9, 14 [13] (Chernov JA, Vincent JA agreeing at 15 [15], Bongiorno AJA agreeing at 15 [16]) (‘Cumberbatch’); Wright v The Queen [2009] VSCA 27 [67] (Maxwell P, Neave and Weinberg JJA) (‘Wright’).

3. The written submissions also emphasise the significance of delay, especially the delay between the charge, trial and sentence.[22]

   [22]Reliance was placed on Chandler v The Queen [2010] VSCA 338 [16] (Maxwell P and Weinberg JA).

4. It was also submitted that the burden of imprisonment is greater for the applicant than for someone who does not face the risk of deportation once their sentence is served.[23] The impact of the COVID-19 pandemic on prisoners in general, and the applicant in particular, was also important.

   [23]Da Costa v The Queen [2016] VSCA 49 [42], [44] (Maxwell P, Redlich and Priest JJA); Guden v The Queen [2010] VSCA 196 [27] (Maxwell P, Bongiorno JA and Beach AJA).

Respondent’s submissions

1. The respondent accepted that the applicant had several significant matters to call in aid to mitigate his sentence. It was submitted, however, that they were the types of matters which frequently arise in historical sexual abuse cases. The respondent submitted that the seriousness of the offences and their long-term impact on each of the victims, and the gross breach of trust which they involved, were significant sentencing considerations, along with the principles of general deterrence and denunciation. The respondent pointed to the marked age differential between the victims and the applicant, noting that the sentencing judge had characterised the offending as ‘predatory and persistent’,[24] and that it had continued despite the applicant having been confronted by the mother of the victims. The judge had found the moral culpability of the applicant to be extremely high.

   [24]Sentencing Remarks [42].

2. The respondent noted that there was no evidence that the applicant’s medical condition was significantly worsened by him being held in custody or that correctional services were currently unable to meet his medical needs.

Consideration

1. The ground of manifest excess requires an appellant to show that the sentence was wholly outside the range of sentencing options available; in other words, that it was not reasonably open to the sentencing judge.[25] It must be shown that something has gone ‘obviously, plainly or badly wrong’ in the exercise of the sentencing discretion, without necessarily identifying what that something is.[26]

   [25]Clarkson v The Queen (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA).

   [26]Ayol v The Queen [2014] VSCA 151 [30] (Maxwell P); Nicholls v The Queen [2016] VSCA 300 [31] (Redlich and McLeish JJA and Beale AJA); Till v The Queen [2018] VSCA 122 [45] (Maxwell P, Tate and Niall JJA); Osman v The Queen [2021] VSCA 176 [97] (Priest, T Forrest and Emerton JJA).

2. In my opinion it cannot reasonably be argued that the sentences imposed in the present case are manifestly excessive. As the judge recognised, there are a number of mitigatory factors upon which the applicant can rely. In particular, his advanced age and physical condition means that there is a significant risk that he will die in prison. Inevitably that is a significant consideration.[27] Even so, the sentences imposed in this case are in my view moderate.

   [27]Cumberbatch (2004) 8 VR 9, 14 [13] (Chernov JA, Vincent JA agreeing at 15 [15], Bongiorno AJA agreeing at 15 [16]); Wright [2009] VSCA 27 [67] (Maxwell P, Neave and Weinberg JJA).

3. Taking the individual sentences first, the base sentence of two years and two months for the offence of digitally penetrating the applicant’s nine year old stepchild could not be regarded as manifestly excessive, especially in circumstances where the offender demonstrates no remorse or insight into his offending. This offence took place while the victim was sitting on the applicant’s knee. The applicant rubbed his fingers around inside her vagina while discussing the possibility of her obtaining a scholarship. This was an egregious breach of trust that amply warranted the sentence imposed.

4. The other, lower, sentences are commensurately moderate. The sentences reflect the gross breach of trust each offence involved, bearing in mind the maximum penalty of five years’ imprisonment in each instance and the fact that the applicant is unable to call in aid the benefits flowing from a plea of guilty.

5. The cumulation imposed in respect of the other offending, being in the order of two to three months on most charges, is modest in the circumstances, particularly when regard is had to the fact that there were two victims involved and the offending took place on multiple separate occasions over a period of a decade.

6. In my opinion, the total effective sentence appropriately balances the seriousness of the offending and its effect upon the victims against the mitigatory factors which the applicant called in aid, including his age and poor health, the effects of delay upon him and the additional impact of the COVID pandemic and the risk of his deportation. As the judge said, the case called for general deterrence and denunciation, even though specific deterrence and protection of the community had no role to play.

7. The non-parole period of two years and two months, being a shade over 50 per cent of the total effective sentence, can properly be regarded as an acknowledgement of the age and ill-health of the applicant, and the personal circumstances that will make prison more onerous for him.

8. In all the circumstances, the sentences imposed were well within range. The application for leave to appeal must therefore be refused.

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