Bernard Phillips (a pseudonym)[1] v The Queen

[2017] VSCA 76

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0250

BERNARD PHILLIPS (a pseudonym)[1]	Applicant
v
THE QUEEN	Respondent

[1]To ensure that there is no possibility of identification of the victims of the sexual offending, this judgment has been anonymised by the adoption of pseudonyms in place of the applicant’s and victims’ names.

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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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JUDGES:	TATE JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 April 2017
DATE OF JUDGMENT:	3 April 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 76
JUDGMENT APPEALED FROM:	Director of Public Prosecutions v Phillips (a pseudonym) (Unpublished, County Court of Victoria, Judge Pullen, 14 November 2016)

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CRIMINAL LAW – Sentence – Application for leave to appeal  – Incest – Indecent act with a child under the age of 16 years – Total effective sentence of 11 years and five months’ imprisonment – Non-parole period of nine years – Manifest excess – Leave to appeal granted.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J D Kantor	Mike Wardell
For the Respondent	Mr G Silbert QC	Mr John Cain, Solicitor for Public Prosecutions

TATE JA:

History of proceedings

1. The applicant, Bernard Phillips (‘Phillips’), applies for leave to appeal against the sentence imposed on him in the County Court.  He was sentenced on 14 November 2016 on two indictments involving charges of indecent acts with children under 16 and incest.  He pleaded guilty to three charges of an indecent act with a child under the age of 16 on indictment A12651514.A1 (‘the first indictment’) and was found guilty by a jury of two charges of an indecent act with a child under the age of 16 and two charges of incest on the indictment E12651514C (‘the second indictment’).  The trial judge imposed the following sentence with respect to the seven charges:[2]

[2]DPP v Phillips (a pseudonym) (Unpublished, County Court of Victoria, Judge Pullen, 14 November 2016) (‘Sentencing reasons’).

Charge on Indictment A12651514.A1	Offence	Maximum	Sentence	Cumulation
1.	Indecent act with a child under the age of 16 [s 47(1) of the Crimes Act 1958]	10 years’ imprisonment	6 months’ imprisonment	2 months
2.	Indecent act with a child under the age of 16 [s 47(1) of the Crimes Act 1958]	10 years’ imprisonment	14 months’ imprisonment	8 months
3.	Indecent act with a child under the age of 16 [s 47(1) of the Crimes Act 1958]	10 years’ imprisonment	10 months’ imprisonment	5 months
Charge on Indictment E12651514C
1.	Indecent act with a child under the age of 16 [s 47(1) of the Crimes Act 1958]	10 years’ imprisonment	30 months’ imprisonment	12 months
2.	Incest [s 44(1) of the Crimes Act 1958]	25 years’ imprisonment	5 years’ imprisonment	2 years
3.	Indecent act with a child under the age of 16 [s 47(1) of the Crimes Act 1958]	10 years’ imprisonment	3 years’ imprisonment	14 months
4.	Incest [s 44(1) of the Crimes Act 1958]	25 years’ imprisonment	6 years’ imprisonment	Base
Total Effective Sentence:		11 years and 5 months’ imprisonment
Non-Parole Period:		9 years
Pre-sentence detention declared:		153 days
6AAA Statement:  If not for the plea of guilty on Indictment A12651514.A1 those three charges would have attracted a total effective sentence of 4 years’ imprisonment with a non-parole period of 2 years and 4 months.
Other relevant orders: On indictment number A12651514.A1 pursuant to section 6F of the Sentencing Act 1991 the offender is sentenced as a serious sexual offender in respect of charges 1, 2 and 3. On indictment number E12651514C pursuant to section 6F of the Sentencing Act 1991 the offender is sentenced as a serious sexual offender in respect of charges 3 and 4.

The first indictment[3]

[3]This summary of the offending is summarised from the Sentencing reasons at [23]–[37].

1. On the first indictment Phillips pleaded guilty to three charges of indecent act with a child under the age of 16.

1. The complainant in the first indictment (‘Elisabeth Sands’) came to know Phillips when she was about 12 years old and he was about 34 years old.  She would visit Phillips’ home for social visits with her family and babysit his children on occasion.  The offending occurred while Elisabeth was aged between 14 and 15.

1. Charge 1 on the first indictment occurred when Elisabeth was 14.  She was at the home of Phillips when he leaned over and kissed her and inserted his tongue in her mouth.  She pulled away from the kiss, but he leaned in and again inserted his tongue in her mouth.

1. Charge 2 on the first indictment is a representative charge of three occasions when Phillips touched and rubbed Elisabeth’s vagina on the outside of her clothing.  On the first occasion Phillips took Elisabeth to a paddock where he put his hand down Elisabeth’s pants and tried to take her pants off.  Elisabeth told him not to do that.  When his hand was in her pants he rubbed his hand up and down on her vagina on the outside of her underpants.  On the second occasion Phillips took Elisabeth on a motorbike ride.  During the ride he reached around to Elisabeth, who was seated on the back of the motorbike, and rubbed her vagina on the outside of her clothing.  The third occasion also involved a motorbike ride.  Phillips stopped the bike, told Elisabeth to get off, and then touched her on the vagina on the outside of her clothing, and rubbed his hand up and down over her vagina.  Phillips ceased that activity when others arrived, and Elisabeth then got back onto the motorbike and left.

1. Charge 3 on the first indictment occurred at the home Phillips shared with his partner JM.  Elisabeth was staying overnight to look after the two children of Phillips and JM.  She was sleeping on the lounge room floor.  During the night, Phillips walked into the lounge room in only his underwear.  He sat beside Elisabeth, kissed her and took off her boxer shorts.  He lay on top of her, pushed his groin area into hers and moved his erect penis against her vagina.  He continued after Elisabeth told him to stop and he told Elisabeth to be quiet because his wife might hear.  Phillips got off and kissed her on the cheek when he heard a noise.  The kiss was witnessed by JM.

1. Phillips and JM separated in 2003.  Phillips commenced a relationship with Elisabeth when she was 16 years old and that relationship produced two children before it ended in 2012.

The second indictment[4]

[4]This summary of the offending is summarised from the Sentencing reasons at [5]–[20].

1. The offending on the second indictment took place when Phillips was aged 42 to 45 against his biological daughter (‘Emma’) aged between seven and 11 at the time of the offending.  After separating with JM in 2003, he had weekend access with his two daughters of that relationship.  The offending on the second indictment occurred in the home Phillips shared with Elisabeth Sands.  He pleaded not guilty to these charges and was convicted by a jury.

1. Charge 1 on the second indictment occurred when Phillips had people over for a barbecue.  He told his daughter that there was a blanket in his room and asked if she would like it on her bed.  Emma went into the bedroom and Phillips closed the door, pulled down his pants and licked her vagina.  When someone knocked on the door, Phillips told Emma to walk out of the room with the blanket, place it on her bed and act ‘as if that was what had happened’.[5]

   [5]Sentencing reasons [11].

1. Charge 2 on the second indictment is a charge of incest.  Emma and her sister ‘Rachel’ had fallen asleep in the games room.  After picking Rachel up and putting her to bed, Phillips woke Emma.  He pulled down his pants and forced Emma’s head onto his penis.  Phillips held her head and pulled her head forward whenever she tried to pull away.  The incident ended when Elisabeth returned home from a party.

1. Charge 3 on the second indictment occurred when Phillips and his daughter Emma were alone in the house.  He acted like he was tickling her and put his hand down her pants and tickled her vagina.  This occurred after the incident in the games room and Phillips told her that if she told anyone about it, bad things would happen to her.

1. Charge 4 on the second indictment occurred in Emma’s bedroom.  Phillips entered her room, closed the door and told her to be quiet.  He pulled his pants down and shoved her head onto his penis in the same way as he had in the games room, and moved her head backwards and forwards.  The incident ended when Phillips’ uncle came to the house and Phillips ran out of the room.

1. The judge described the offending in the second indictment as involving a gross breach of trust, not only of Emma, but of JM, and treated as an aggravating feature that Phillips threatened Emma.  She described his behaviour towards his daughter as ‘despicable’.[6]   The judge was unable to find that Phillips was remorseful and noted that he continued to maintain that he did not commit the offences in the second indictment to Dr Cunningham.

   [6]Ibid [18].

Grounds of appeal

1. Phillips relies on two proposed grounds of appeal.  The grounds complain that the individual sentences imposed and orders for cumulation are manifestly excessive.

Ground One – Manifest excess on the first indictment

1.          The individual sentence on charge 2 is manifestly excessive, and

The orders for cumulation in respect of:

·    charge 1;

·    charge 2; and

·    charge 3;

on the sentence imposed on Indictment A12651514.A1 (and cumulative on the sentence imposed on the second Indictment E12651514C) is manifestly excessive.

Ground Two – Manifest excess on the second indictment

2.          The individual sentence on charge 1 is manifestly excessive;

The individual sentence on charge 3 is manifestly excessive;

The individual sentence on charge 4 is manifestly excessive; and

The orders for cumulation in respect of:

·    charge 1;

·    charge 2; and

·    charge 3;

on the sentence imposed on charge 4 (and on the 15 months cumulation on Indictment A12651514.A1) are manifestly excessive and as a consequence the resulting total effective sentence is manifestly excessive.

1. In particular, Phillips submits that the sentence of 14 months’ imprisonment on the representative charge on the first indictment (charge 2) is manifestly excessive given the offending falls at the lower end of the scale for this type of offence.  He submits that it falls at the lower end of the scale because the age of the victim was advanced for that offence (15 years old), the touching was outside of her clothes, the touching was of short duration, he pleaded guilty (albeit at a late stage as a jury was about to be empanelled for his trial) and he had no relevant convictions and a limited criminal history.

1. Phillips points to two discrepancies or inconsistencies in the sentencing. 

1. The first discrepancy relates to the first indictment and the sentences imposed on charge 2 by comparison with the sentence imposed on charge 3.  Charge 2 is the representative charge relating to conduct (rubbing of vagina outside of underpants) which is arguably of lesser objective gravity than the conduct with respect to charge 3 (lying on top of Elisabeth and pushing his groin and his erect penis against her vagina) yet the sentence on charge 2 is 14 months’ imprisonment while that on charge 3 is 10 months’ imprisonment.  Phillips submits that as there has been no complaint that the sentence on charge 3 is manifestly inadequate this suggests that the sentence on charge 2 is manifestly excessive. 

1. Moreover, Phillips submits (and the Crown accepted) that, with respect to charge 2, in her sentencing reasons the judge failed to specify which of the three occasions she had chosen as that in respect of which she was sentencing as the conduct constituting the representative charge.  It is not submitted that the judge erroneously sentenced Phillips with respect to all three occasions but it is submitted that the sentence is manifestly excessive.

1. The second discrepancy relates to charges 2 and 4 on the second indictment.  The conduct constituting both charges was substantially similar (as the Crown conceded, appropriately in my view) yet Phillips was sentenced to five years’ imprisonment on charge 2 and six years’ imprisonment on charge 4.  The conduct involved Phillips forcing Emma’s head onto his penis.  While it is true that with respect to charge 4, her Honour was obliged to sentence Phillips as a serious sexual offender it is arguable that there remains a question-mark over whether the two sentences are consistent.

1. Furthermore, Phillips accepts that, with respect to charges 2 and 4 in the second indictment (incest), he stood to be sentenced in a post-Dalgliesh[7] environment.  In other words, he accepts that the sentencing judge was obliged to take account of this Court’s decision in Dalgliesh which recognised that the then current sentencing practice did not properly reflect the objective gravity of the offending in mid-range incest cases and concluded that ‘sentencing courts must, by increments, increase the sentences for mid-range incest offences, so that the range of sentences is uplifted and substantially expanded’.[8]  Phillips complains that the judge did not sentence him for charges 2 and 4 in a manner that reflected an incremental increase of the penalties for mid-range incest offences but, rather, as he put it the judge ‘jumped immediately to the upper end of the Dalgliesh recommendation’.

   [7]DPP v Dalgliesh (a Pseudonym) [2016] VSCA 148.

   [8]Ibid [131].

Conclusion

1. In my view, the issues raised by Phillips indicate that the grounds of appeal are reasonably arguable.  I cannot conclude that there is no reasonable prospect that the Court of Appeal would impose a less severe sentence than the sentence first imposed.  I grant leave to appeal against sentence.