Barnard (a pseudonym) v The Queen
[2022] VSCA 42
•30 March 2022
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2021 0073
| STEPHEN BARNARD (a pseudonym)[1] | Appellant |
| v | |
| THE QUEEN | Respondent |
[1]These reasons have been anonymised to avoid the risk of identifying the victim of sexual offending.
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| JUDGE: | PRIEST and T FORREST JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 22 March 2022 |
| DATE OF JUDGMENT: | 30 March 2022 |
| MEDIUM NEUTRAL CITATION: | [2022] VSCA 42 |
| JUDGMENT APPEALED FROM: | DPP v Barnard (a pseudonym) [2021] VCC 523 (Judge Cahill) |
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CRIMINAL LAW – Appeal – Sentence – Five charges of sexual penetration of child under 16 – Delay between offending and sentence – Rehabilitation – Plea of guilty during COVID-19 pandemic – Whether sentence of 6 years and 3 months manifestly excessive – Appeal allowed – Appellant resentenced to 4 years and 6 months’ imprisonment with non-parole period of 2 years and 6 months.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr D A Dann QC | Docherty Legal |
| For the Respondent | Ms S Clancy | Ms A Hogan, Solicitor for Public Prosecutions |
PRIEST JA
T FORREST JA:
Introduction
This appeal against sentence was brought pursuant to leave granted on 18 October 2021.[2] It arises in the following circumstances.
[2]Barnard (a pseudonym) v The Queen (Unreported, Court of Appeal, Priest JA, 18 October 2021) (‘Leave Reasons’).
On 27 April 2021, the appellant, aged 32 years,[3] pleaded guilty before a judge in the County Court to five charges of sexual penetration of a child under the age of 16.[4]
[3]His date of birth is 11 June 1989.
[4]Crimes Act 1958, s 45(1). The maximum penalty is 10 years’ imprisonment.
Following a plea in mitigation, on 4 May 2021 the judge sentenced the appellant to six years and three months’ imprisonment, with a non-parole period of three years and three months, in accordance with the table below:
Charge Offence Sentence Cumulation 1 Sexual penetration of a child under 16 (rolled-up charge – 7 occasions) [digital-vaginal] 4 years Base 2 Sexual penetration of a child under 16 (rolled-up charge – 7 occasions) [penile-oral] 4 years 9 months 3 Sexual penetration of a child under 16 (rolled-up charge – 3 occasions) [penile-anal][5] 4 years 9 months 4 Sexual penetration of a child under 16 [lingual-vaginal] 3 years 3 months 5 Sexual penetration of a child under 16 (rolled-up charge – 3 occasions) [penile-vaginal] 3 years 6 months 4 Total Effective Sentence 6 years and 3 months’ imprisonment 5 Non-Parole Period 3 years and 3 months’ imprisonment 6 Section 6AAA Statement 8 years and 6 months’ imprisonment, with a non-parole period of 5 years and 6 months. 7 Other orders Reporting for life pursuant to s 34 of the Sex Offenders Registration Act 2004 [5]Although nothing turns on it, it is noteworthy that in his sentencing reasons the judge acknowledged that the appellant fell to be sentenced as a serious sexual offender on charges 3, 4 and 5; yet, in apparent disconformity with s 6F(1) of the Sentencing Act 1991, the Record of Orders signed by the judge fails to record that the appellant was so sentenced.
For the reasons that follow, we consider that the ground of appeal upon which leave was granted — that the individual sentences on charges 1, 2, 3 and 4, the total effective sentence and the non-parole period, are manifestly excessive — should succeed. We would therefore allow the appeal and resentence the appellant as set out below.[6]
[6]At [20].
The offending
We adopt the following description of the appellant’s offending from the Leave Reasons:[7]
[7]Leave Reasons, [9]–[22].
[9] The offending took place between February 2012 and April 2013. During that period the complainant, ‘WG’, was aged between 14 and 15 years,[8] and the [appellant] was aged between 22 and 23 years. The [appellant] was known to WG and her family through involvement in a sporting club.
[8]She was born in October 1997.
[10] On 9 December 2011, WG attended her sister’s wedding in a regional city. The [appellant] was also a guest at the wedding. Whilst at the reception he supplied WG with alcoholic drinks from the bar. In the days following, the two communicated via Facebook messenger, the messages between the two becoming increasingly sexual in nature.
The first incident
[11] On 25 February 2012, WG invited the [appellant] to her sister’s house, where she was staying. Whilst they sat on a couch together, the [appellant] kissed WG on the lips and then put his hand down her shorts and under her underwear before inserting two fingers into her vagina (charge 1 – rolled up with six further occasions).
[12] The [appellant] pulled WG’s shirt and bra down, sucked on her breasts and then stood up and told her to suck his penis. She did for about a minute (charge 2 – rolled up with six further occasions). The [appellant] moved WG to a kneeling position of the floor and said ‘let’s try anal’. WG didn’t know what that meant and did not respond. The [appellant] spat on his hand as lubricant, and inserted his penis into her anus for about a minute before ejaculating (charge 3 – rolled up with two further occasions). WG suffered pain and noticed some bleeding. They hugged, and the [appellant] left.
The second incident
[13] On or about 29 March 2012, WG went to the sporting club where the [appellant] was training. After training, the [appellant] took WG by the hand and they went behind the complex and kissed. The [appellant] put his hands down her pants and then his fingers inside her vagina (charge 1 – rolled up). He asked her to suck his penis. After she did so, she stood up and watched the [appellant] masturbate until he ejaculated (charge 2 – rolled up).
The third occasion
[14] At some time in May 2012, WG sneaked out of home to meet the [appellant]. They drove to a nearby vacant block where they got into the back seat of the car and started kissing. The [appellant] inserted his finger into WG’s vagina (charge 1 – rolled up), she sucked his penis (charge 2 – rolled up), he performed oral sex on her (charge 4) and they had anal sex (charge 3 – rolled up).
The fourth incident
[15] On an occasion when WG attended the [appellant]’s residence for a sports presentation evening they moved away from the crowd and kissed. The [appellant] put his fingers into WG’s vagina (charge 1 – rolled up) and she sucked his penis (charge 2 – rolled up). The [appellant] then inserted his penis into her vagina (charge 5 – rolled up with two further occasions). They returned to the party. The following morning the [appellant] told WG that his girlfriend was getting suspicious and they should stop seeing each other.
The fifth incident
[16] In late January 2013, after WG had turned 15, she sneaked out of her home. She and the [appellant] started kissing in his car, and he inserted his fingers into her vagina (charge 1 – rolled up). WG sucked his penis (charge 2 – rolled up) and they had penile-vaginal sex (charge 5 – rolled up).
The sixth incident
[17] In February 2013, when WG’s family were not home, the [appellant] went to her house. They went to the shed and kissed, and the [appellant] put his fingers into WG’s vagina (charge 1 – rolled up). She sucked his penis. The [appellant] pushed her head onto his penis to the point where she vomited. The [appellant] ejaculated and said ‘good job’ (charge 2 – rolled up).
The seventh incident
[18] In April 2013, WG walked to the [appellant]’s residence where he was recovering from burns. He told WG that he had not had sex in a while because his girlfriend was mad at him for getting burnt. The two kissed and he inserted his fingers into her vagina (charge 1 – rolled up), she sucked his penis (charge 2 – rolled up), they had penile-vaginal sex (charge 5 – rolled up) and anal sex (charge 3 – rolled up). Afterwards, she told him that rumours about the two of them were being spread and he told her to keep denying those rumours.
[19] In late April, WG took a pregnancy test which returned a positive result. She hid the results from her parents, and, on 9 June 2013, had an apparent miscarriage.
[20] Over the next six months WG and the [appellant] exchanged photographs, some depicting the [appellant]’s erect penis and masturbation. They saw each other again in December 2013, by which stage WG had turned 16. They had sex and continued to do so on occasions throughout 2014.
[21] In January 2015, they met and had sex. They continued their sexual relationship until October 2016, when WG, who had become very depressed, dependent upon alcohol, and suicidal, told the [appellant] that they could no longer see each other. They stopped communicating.
[22] WG contacted police in December 2017 and made a statement on 15 January 2018. She said, however, that she did not want to proceed with an investigation because her brother was employed by the [appellant] as an electrical apprentice. In May 2019, she contacted police again and, when she made a second statement on 6 September 2019, police commenced their investigation. When arrested on 20 January 2020 the [appellant] gave a ‘no comment’ interview. He was charged on 11 May 2020.
The framing of the indictment
We pause to note an unusual feature of the manner in which the indictment was framed.
Charges 1, 2, 3 and 5 are all ‘rolled-up’ charges, charge 1 embracing seven instances of digital–vaginal penetration; charge 2, seven instances of penile–oral penetration; charge 3, three instances of penile–anal penetration; and charge 5, three occasions of penile-vaginal penetration. By way of contrast, charge 4 relates to a single instance of lingual-vaginal penetration.
Factually, the charges embrace conduct spread across seven ‘incidents’:
· the first incident, at the appellant’s sister’s house, involved digital–vaginal penetration (part of charge 1), penile-oral penetration (part of charge 2) and penile-anal penetration (part of charge 3);
· the second incident, at the sporting club, involved digital–vaginal penetration (part of charge 1) and penile-oral penetration (part of charge 2);
· the third incident, at a vacant block, involved digital–vaginal penetration (part of charge 1), penile–oral penetration (part of charge 2) and penile–anal penetration (part of charge 3), and also involved lingual-vaginal penetration (charge 4);
· the fourth incident, at the sports presentation, involved digital–vaginal penetration (part of charge 1), penile–oral penetration (part of charge 2) and penile–vaginal penetration (part of charge 5);
· the fifth incident, in the appellant’s car, involved digital-vaginal penetration (part of charge 1), penile–oral penetration (part of charge 2) and penile–vaginal penetration (part of charge 5);
· the sixth incident, at WG’s home, involved digital–vaginal penetration (part of charge 1) and penile–oral penetration (part of charge 2); and
· the seventh incident, at the appellant’s residence, involved digital–vaginal penetration (part of charge 1), penile–oral penetration (part of charge 2), penile–anal penetration (part of charge 3) and penile–vaginal penetration (part of charge 5).
The advantage that flowed to the appellant from the laying of rolled-up charges is that a rolled-up charge bundles together more than one offence under the umbrella of a single charge — something that can only be done upon a guilty plea with the agreement of the defence — so that on that charge the prisoner is exposed only to the maximum sentence available for a single instance of the offence. Depending upon the circumstances, the laying of rolled-up charges may also simplify the task of the sentencing judge.[9]
[9]R v Jones [2004] VSCA 68, [12]–[13] (Charles JA); R v Beary (2004) 11 VR 151, 156–7 [11]–[14] (Callaway JA); DPP v Jones (a pseudonym) (2013) 40 VR 267, 286–7 [80] (Redlich and Priest JJA).
In the present case, however, resort to the use of rolled-up charges made one aspect of the sentencing task somewhat difficult. Each of the seven ‘incidents’ in this case involved multiple individual sexual offences which in each case arose out of a single episode or transaction. Hence, each individual offence in each incident or transaction was closely connected in time and circumstance. Resort to rolled-up charges, however, had the following consequence. Although it is established that total concurrency need not be ordered with respect to sentences for multiple sexual offences simply because the offences arise out of a single transaction or course of conduct; and that, depending on the circumstances, a degree of cumulation may be ordered between sentences for multiple sexual offences arising out of a single transaction or course of conduct; principle dictates that, in considering whether or not cumulation was to be ordered — and, if so, how much — the judge was required to consider the extent to which each individual offence in each ‘incident’ or transaction added to the total criminality of the appellant’s conduct.[10] That task was rendered somewhat difficult given the manner in which the indictment was formulated.
[10]See, eg, R v O’Rourke [1997] 1 VR 246, 253 (Winneke P, Brooking and Callaway JJA); R v GJ [2008] VSCA 222, [77] (Nettle and Weinberg JJA and Hargrave AJA).
Appellant’s submissions
In support of the ground of appeal, in oral and written submissions the appellant’s counsel relied in summary upon the following matters:
· the plea of guilty was entered at the earliest opportunity;
· the plea was entered during the COVID-19 pandemic, and attracted the considerations discussed in Worboyes;[11]
[11]Worboyes v The Queen (2021) 96 MVR 344 (Priest, Kaye and T Forrest JJA) (‘Worboyes’).
· the plea had high utilitarian value, avoiding the need for WG to give evidence;
· the appellant was relatively youthful at the time of offending;
· the judge found that the appellant was remorseful;
· the appellant had a lack of prior or subsequent convictions, and enjoyed positive good character;
· the appellant was a devoted father, successful businessman and contributing member of the community;
· there had been a delay of eight years between the last of the offending and the imposition of sentence, and the appellant’s rehabilitation had advanced during the delay, including having counselling sessions with Dr Tony Pastore, a clinical and forensic psychologist;
· the judge found that the appellant was unlikely to reoffend;
· the appellant’s time in custody was more burdensome due to separation from family, one effect of the pandemic being that he has had no face-to-face contact with his children since being imprisoned; and
· the appellant’s family was placed in a parlous financial position by the removal of his income (and restraining orders had subsequently been put in place over his property and bank accounts).
Counsel submitted that when the foregoing matters are properly synthesised, a sentence representing 40 per cent of the available maximum penalty — imposed on charges 1, 2 and 3 — can be seen to be outside the available range.
Respondent’s submissions
Counsel for the respondent commenced her oral submissions by drawing the Court’s attention to the complainant’s victim impact statement, submitting that the offending had ‘changed the course of the victim’s life forever’. Delay, counsel contended, should be afforded limited weight. The appellant had been able to get on with his life, but not so his victim. Further, counsel for the respondent argued that little weight should be afforded to the appellant’s relative youth at the time of offending, he not being an immature offender. Moreover, so counsel submitted, the appellant’s offending was particularly serious — counsel concentrated on particular circumstances of a number of the individual offences — and involved offending over a 14-month period in circumstances where there was a ‘power imbalance’.
The respondent’s counsel submitted that the contention advanced by the appellant’s counsel that a term of imprisonment which represents 40 per cent of the maximum penalty is manifestly excessive, given the matters in mitigation, cannot be sustained,[12] and argued that there is no basis to conclude that the terms of imprisonment imposed on charges 1, 2, 3, and 4 are internally inconsistent. Additionally, counsel submitted that the orders for cumulation were moderate, as was the non-parole period (which represented just 52 per cent of the head sentence). Finally, counsel submitted that, having regard to the serious and protracted nature of the appellant’s offending, the individual sentences on charges 1, 2, 3 and 4 and the total effective sentence imposed on the appellant are not wholly outside the range of those available in the sound exercise of the sentencing discretion.
[12]Counsel cited DPP v Amaral (a pseudonym) [2020] VSCA 290.
Discussion
We consider it to be very significant that eight years had elapsed since the last episode of offending and the appellant’s sentence. In the period intervening between the offending and sentence, the appellant — who was relatively youthful when he committed the present offences — had, so the evidence established, become a devoted father, a successful businessman and a contributing member of the community. He had put his life in order and his rehabilitation was advanced.
The conclusion that the appellant had reordered his life was fortified by the opinion of Dr Tony Pastore, a clinical and forensic psychologist, who had eleven consultations with the appellant between September 2020 and March 2021, and subjected him to a number of well-recognised psychological tests. He found that the appellant ‘shows significant remorse’; presents as having a ‘low risk of re-offending’; and ‘seems like a good candidate for rehabilitation’. In Dr Pastore’s view, ‘given [the appellant’s] past history, non-offending past (sexual or otherwise), no past convictions and stable family life, [he] is not an on-going concern or danger to the community’, the risk of sexual recidivism being ‘low’.
Another consequence of being sentenced so long after the relevant events was that it was calculated to — and, in fact, did — have significantly adverse consequences for the appellant, and his family’s, financial position. The anxiety that has caused the appellant will no doubt make his imprisonment more burdensome. Adding to that burden is the fact that one of the effects of the COVID-19 pandemic is that the appellant has been unable to have any face-to-face contact with his children.
Furthermore, we consider that the appellant’s plea of guilty ought to have attracted a significant amelioration of sentence. It was accompanied by genuine remorse, and had marked utilitarian value. Not only did the plea avoid any need for WG to give evidence, but it played a part in diminishing the strain on this State’s struggling system of criminal justice. As to that, it is timely to repeat what this Court said in Worboyes, which was no empty, platitudinous mantra:[13]
[35] As is abundantly clear, one of the pernicious effects of the current pandemic is that the lists of the criminal courts in this State have become severely congested. Unacceptable delay in the disposition of criminal cases is endemic. Indeed, it is not an overstatement to say that the system of criminal justice in this State is in crisis, requiring a response from the courts. We therefore consider that, whilst the courts of this State continue to labour under the adverse effects of the pandemic, a sentencing court should view a plea of guilty as carrying with it a greater utilitarian benefit than at other times and in other circumstances, and, concomitantly, as attracting an augmented mitigatory effect on sentence, simply because the plea will benefit the beleaguered administration of justice. Given the unhappy state of the courts’ lists, the courts must, in an endeavour to alleviate the strain on the system, encourage those accused who are guilty to so plead. Such encouragement must come from an actual and palpable amelioration of sentence.
[36] There are, it must be recognised, real disincentives in the current climate for accused persons who are on bail to plead guilty, particularly if a sentence of imprisonment is on the cards. As the judge observed in the present case, a newly-sentenced prisoner in times of the pandemic will spend the first two weeks of his or her sentence in isolation. Thereafter, he or she will have very restricted opportunities for contact with family and friends. Further, rehabilitative and other programs within prisons are severely curtailed. That this is so is notorious. These circumstances must render the prospect of imprisonment even more unpalatable than is usually the case, and operate as a further deterrent to the entry of a guilty plea. These disincentives to pleading guilty must be balanced by a proper inducement, through mitigation of sentence, to accept guilt.
[37] Self-evidently, the other side of the coin is that there are real incentives for the cynical and unprincipled to exploit the delays resulting from the pandemic. The longer the delay, the more the memory (and enthusiasm) of witnesses dims, and the preparedness of victims to actively and willingly participate is tested, with associated forensic disadvantages to the prosecution. In ordinary times with ordinary delays, the lot of victims and witnesses already is not a happy one. The longer the delays, the more pronounced their plight.
[38] Further, and significantly, criminal jury trials in times of the pandemic are far more resource-depleting than in times where the threat of serious infection is not present. One of the aspirations of encouraging utilitarian pleas of guilty must be that scant resources, upon which there is great demand, will be to an extent freed up.
[39] For these reasons, we consider that — all other things being equal — a plea of guilty entered during the currency of the COVID-19 pandemic is worthy of greater weight in mitigation than a similar plea entered at a time when the community and the courts are not afflicted by the pandemic’s effects. A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence than at another time. Although a sentencing judge need not quantify the extent of any ‘discount’, he or she must ensure that the plea of guilty results in a perceptible amelioration of sentence.
[13]Worboyes, 356–7 [35]–[30].
Balancing, as best we are able, all relevant factors, we have concluded that the sentence imposed by the judge is outside the range open in the sound exercise of discretion. In so concluding, we have not ignored the lasting effects of the appellant’s offending on WG, as described in her victim impact statement. The impact of the appellant’s offending on his victim cannot, however, be permitted to swamp all other considerations; in particular, the value that must be attributed in the current climate to the appellant’s guilty pleas.
Conclusion
The appeal should be allowed and the appellant resentenced to a total effective sentence of four years and six months’ imprisonment, with a non-parole period of two years and six months, in the manner reflected in the following table:
Charge Offence Sentence Cumulation 1 Sexual penetration of a child under 16 (rolled-up charge – 7 occasions) [digital-vaginal] 2 years and 6 months 3 months 2 Sexual penetration of a child under 16 (rolled-up charge – 7 occasions) [penile-oral] 3 years 3 months 3 Sexual penetration of a child under 16 (rolled-up charge – 3 occasions) [penile-anal] 3 years 3 months 4 Sexual penetration of a child under 16 [lingual-vaginal] 18 months 3 months 5 Sexual penetration of a child under 16 (rolled-up charge – 3 occasions) [penile-vaginal] 3 and six months years Base Total Effective Sentence 4 years and 6 months’ imprisonment 21 Non-Parole Period 2 years and 6 months’ imprisonment 22 Section 6AAA Statement 6 years and 6 months’ imprisonment, with a non-parole period of 4 years and 6 months
The appellant will be sentenced as a serious sexual offender on charges 3, 4 and 5, and will cause to be entered in the records of the Court that the appellant is sentenced as a serious sexual offender on those charges.[14]
[14]See Sentencing Act 1991, ss 6C(1) and 6F(1). We note that, by virtue of s 6E, the sentences imposed on charges 3, 4 and 5 must be served cumulatively unless otherwise ordered, whereas the sentences on charges 1 and 2 are to be served concurrently unless otherwise ordered.
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