BM v The Queen
[2013] VSCA 3
•17 January 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| B M | S APCR 2012 0156 |
| v | |
| THE QUEEN |
- - -
JUDGES: | MAXWELL P and WHELAN JA |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | 17 January 2013 |
DATE OF JUDGMENT: | 17 January 2013 |
MEDIUM NEUTRAL CITATION: | [2013] VSCA 3 |
JUDGMENT APPEALED FROM: | R v B M (Unreported, County Court of Victoria, Judge Cannon, 8 November 2011) |
CRIMINAL LAW – Appeal – Sentence – Maintaining sexual relationship with child under 16 – Sentenced to 12 years’ imprisonment, non‑parole period 9 years – Offending on fortnightly access weekends over 10 years – Victim was applicant’s natural daughter – Offending began when daughter was 4, ended when she was 13 – Sexual penetration despite daughter’s protests – Intimidation – Manipulative and coercive behaviour – Whether age difference an aggravating factor – Whether exposure to risk of pregnancy and of sexually transmitted disease an aggravating factor – Whether sentence manifestly excessive – Appeal dismissed – Crimes Act 1958 (Vic) s 47A.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr A D Trood | Tony Hargraves & Partners |
| For the Crown | Mr B F Kissane | Mr C Hyland, Solicitor for Public Prosecutions |
MAXWELL P:
Introduction
The applicant pleaded guilty to one count of maintaining a sexual relationship with a child under 16. He was sentenced to 12 years’ imprisonment with a non‑parole period of nine years. He now seeks leave to appeal against sentence. For the following reasons, I would grant leave to appeal but dismiss the appeal.
The central complaint in the present case, although not the only ground of appeal, is that both the head sentence and the non‑parole period were manifestly excessive. As will appear, a sentence of 12 years is at the upper end of current sentencing practice for this offence. Given the aggravating circumstances to which I will refer, however, I consider that it was reasonably open to the sentencing judge to impose this sentence on this offender for this offending, proper regard being had to current sentencing practice.[1]
[1] DPP v Karazisis (2010) 206 A Crim R 14, 44 [127].
On an appeal against sentence, this is not a court of rehearing. Our function is a supervisory one, and we only interfere with a sentence where something has gone wrong in law. The question is not what decision we would have made had we been in the position of the sentencing judge, but whether the judge in sentencing has gone outside the legal limits applicable to her task.
The fact that we are in a position to deliver judgment so soon after the conclusion of argument is a reflection, not of any pre‑determination of the matters but of the quality of the material filed on the applicant’s behalf and the quality of the argument advanced by his counsel and by counsel for the Crown. A good deal of time and effort goes into the preparation of the written cases, which are provided to the Court in advance of the hearing. Whelan JA and I have had the opportunity to read and consider carefully everything that has happened in the proceeding to date, together with the arguments advanced in writing and the legal decisions which are relied on. That enables us to make best use of counsel’s appearance before us, to understand properly how the arguments are put.
Wherever practicable, it is in the interests of every party to a case to know the outcome as soon as possible. This matter was originally listed before a single judge for hearing of the application for leave to appeal. At short notice — that is, within 24 hours of the hearing — the Court concluded that it would be in everybody’s interests for the matter to be heard by a bench of two, and for the application for leave to appeal — and the appeal itself, if leave were granted — to be heard together. This seemed a sensible course, as almost all of the matters which would need to be ventilated on the application for leave would need to be considered on the appeal if leave were granted. There would be a great saving of time and cost — for the parties and for the Court — for the matters to be ventilated only once.
To that end, the Court advised parties yesterday that that was the proposed course, subject to there being any insuperable difficulty about preparing the matter for hearing in full today. No objection was raised by the parties, doubtless because they were fully prepared to argue the grounds of appeal in any event.
Quite properly, however, counsel for the Director has informed us that this acceleration of the appeal has prevented the Director from informing the victim that the appeal was to be heard. The Director has a statutory obligation to keep victims informed[2] and to afford, wherever practicable, the opportunity for a victim to attend a sentencing or sentence appeal hearing, if the victim chooses to do so.
[2]Victims Charter Act 2006 (Vic) ss 9(f), 11.
Counsel indicated that it was quite likely that the victim in the present case would have wished to be present. I simply record the Court’s regret that the acceleration of the process did not allow her that opportunity.
The circumstances of the offending
The victim of this offence — now known as ‘persistent sexual abuse of child under the age of 16’[3] — was the applicant’s natural daughter. The offending began when she was aged only four. It continued for 10 years. The victim was 13 years old when it came to an end.
[3] Crimes Act 1958 (Vic) s 47A.
At the time the offending commenced, the applicant had separated from the victim’s mother and was in another relationship. The offending against his daughter took place when she was at his house on access visits, which took place every second weekend. The Crown particularised eight incidents of sexual abuse. These occurred in the context of ongoing and persistent sexual abuse on most of the access weekends over the period.
The sentencing judge summarised — with her own comments — the eight incidents. In order to convey the nature of the offending, the relevant part of the reasons is attached as an appendix to this judgment.
It was conceded by the defence on the plea that the offending behaviour was persistent throughout the period. Only one period (of about four months) was identified during which the applicant had desisted from sexually abusing his daughter. Defence counsel conceded that this probably occurred because at that time there was another person living in the house.
When very serious offences of this kind are charged, it is of the first importance that the accused is represented competently and dispassionately. That obligation has, in my respectful opinion, been discharged admirably by defence counsel, both on the plea and in argument on this application. Given the very grave nature of the offending, the task of making a plea in mitigation is one of particular difficulty. All of the points which could have been made in the applicant’s favour were made and, at the same time, concessions were properly made when they needed to be.
Counsel conceded on the plea that, so far as digital penetration was concerned, full penetration was achieved. So far as penile penetration was concerned, however, the judge accepted that full penetration was not achieved ‘which was largely due to the fact that the complainant resisted [the applicant]’.[4] Taking these matters into account, her Honour said:
I regard your offending as extremely serious and approaching the worst category. You have persistently sexually abused your daughter from when she was the most tender age of four until she attained the age of 13 years …[5]
[4] R v B M (Unreported, County Court of Victoria, Judge Cannon, 8 November 2011), [43] (‘Reasons’).
[5]Ibid [44].
Her Honour identified the following aggravating features:[6]
[6]Ibid [51]–[63].
(a) the long duration of the offending;
(b) the ‘tender age’ of the victim;[7]
[7]Ibid [52].
(c) the significant age difference between the applicant and the victim;
(d) the gross breach of the trust placed in the applicant both by the complainant and by her mother;
(e) the fact that the applicant threatened the child when she was four years old that he would hurt her if she again made complaint to her mother about his conduct. Defence counsel conceded, properly in my view, that this threat secured his daughter’s silence, but it was a silence ‘borne of fear’;[8]
[8]Ibid [17].
(f) the fact that, having enforced the victim’s silence and presented her to her mother as ‘someone who was not to be trusted and could not be believed’,[9] the applicant chose to continue to offend against her for the remainder of this long period, until she was 13 years old;
[9]Ibid [54].
(g) the fact that the applicant continued to offend against his daughter in circumstances where she ‘continually made it plain to you that what you were doing was abjectly wrong, as she continually protested against your conduct’;[10]
[10]Ibid.
(h) the fact that the applicant continued to offend after coming before the Court and being sentenced for possessing child pornography, and then whilst undergoing a suspended sentence and being subject to reporting obligations as a sex offender;
(i) the fact that the applicant continued to offend while he was subject to an adjourned undertaking for 12 months from 4 December 2001;
(j) the manipulative, coercive behaviour in which the applicant engaged in order to ensure that he could perform various sexual acts with his daughter (which included, on one occasion, requiring her to participate in sexual acts before he would pay for her food);[11] and
(k) the fact that the applicant engaged in unprotected vaginal penetration, exposing the complainant to the risk of sexually transmitted disease and pregnancy. I will deal further with that matter under grounds 2 and 3.
[11]See Appendix – Incident Eight.
The sentencing judge described at some length the profound impact of the offending on the victim and on her mother and brother. It is unnecessary to say more than that it is distressing to read the victim impact statements. In each of those cases, but most particularly for the victim, the consequences have been devastating and long‑lasting. Her Honour was entitled, of course, to give proper weight to those very serious consequences for the victim and her mother and her brother.
The judge accepted that the plea of guilty and the applicant’s acknowledgment of the truth of what his daughter reported about the offending — together with his recognition that he deserved a significant sentence — indicated that he was genuinely remorseful and was prepared to take full responsibility. Her Honour also took into account the applicant’s difficult background and, in particular, the violence and threats of violence which he and other members of his family experienced because of his mother’s schizophrenia. Because of what was undoubtedly a chaotic and distressing life at home, as her Honour described it, the applicant left school at 14. He left home at 15 or 16 but managed to find work before joining a sheet metal company with which he has had continued employment for 17 years. Before being remanded in custody on this charge, he was a supervisor at the company, overseeing five employees.
After considering in detail a careful report from Dr Sullivan, which was in many respects favourable to the applicant, the judge concluded that his prospects of rehabilitation were ‘fair at best’.[12] There is no challenge to that finding. Her Honour found that there was no impairment of mental function which might otherwise have moderated the applicant’s moral culpability or reduced the need for specific or general deterrence. She found that he was a man of normal intelligence.
[12]Reasons, [124].
Her Honour said:
I regard your moral culpability as extremely high … I place not insignificant weight on specific deterrence in view of the duration of the offending, your actions when your daughter disclosed when she was four, and your relevant prior conviction for child pornography. I also attach significant weight to general deterrence.[13]
[13]Ibid [125].
Once again, there is no challenge to any of those findings. I respectfully share her Honour’s view that the applicant’s moral culpability is extremely high.
Ground 1 — significant age difference as an aggravating factor
It is contended that the judge was in error in treating as an aggravating feature of the offending that there was a significant age difference between the applicant and the victim. It is said that this was not separately identified by the prosecution as an aggravating factor, nor was there any concession by the applicant that it was.
In my view, there is nothing in this ground. As the Crown written case points out, it was an aggravating feature that the victim was four when the offending started. The age difference between her and her father was, necessarily, a feature of the circumstances which had to be brought to account. It was an inherent feature of the offending that, at the time it commenced, the applicant was 25 or 26 years old and his daughter was only four.
The extent of any age difference, and any imbalance in power or authority, between perpetrator and victim is, as counsel for the applicant conceded, a matter relevant to sentencing for offences of this kind. That is as true between parent and child as it is between any other offender and victim of this kind of offending.[14]
[14]See, eg, Clarkson v The Queen [2011] VSCA 157, [5]–[7]; R v Gajjar (2008) 192 A Crim R 76, 79 [16], 84 [50].
Grounds 2 and 3 — unprotected penetration as an aggravating factor
The judge concluded that it was an aggravating feature of the offending that the applicant engaged in unprotected penile‑vaginal sex with the victim. Her Honour concluded that:
[The applicant] showed quite a complete disregard in respect of exposing [the victim] to sexually transmitted disease and [his] conduct towards her in this regard when she came of an age that she might become pregnant, showed a complete disregard in respect of a real risk that she might become pregnant, notwithstanding that, as good fortune might have it, you did not ejaculate in such circumstances.[15]
[15]Reasons, [67].
Under ground 2, the applicant contends that there was no evidentiary basis for the finding that the applicant had subjected his daughter to the risk of pregnancy. The submission relied on the fact that, according to the uncontested plea submission, the applicant ‘successfully practised contraception without the assistance of condoms or contraceptive pills’. As was clarified in the course of submissions this morning, this meant that he practised what is colloquially known as ‘the withdrawal method’. In his view, so the Court was told, this was a safe sex practice.
This ground is also without substance, in my opinion. The judge’s finding that there was a real risk of pregnancy was a finding of fact. In the absence of any evidence which would take the case out of the normal category — that is to say, of a fertile male having sexual relations with a fertile female — that finding was plainly open, without the need for any affirmative evidence from the prosecution, given that partial penile penetration was achieved on multiple occasions. It is an obvious risk, and courts dealing with matters of this kind are, as the decision in R v Khem[16] makes clear, entitled to take judicial notice of the fact that unprotected sex with a fertile female carries with it a risk of pregnancy. Any defendant who wished to establish the non‑existence of any such risk would, it seems to me, be required to lead evidence to prove that pregnancy was, for some reason, an impossibility. Plainly enough, that is not this case.
[16](2008) 186 A Crim R 465 (‘Khem’).
Under ground 3, the applicant contends that there was no basis for the finding that the applicant had exposed his daughter to a risk of contracting a sexually transmitted disease. According to the applicant’s written case, there was no evidence led by the Crown that the applicant:
·had ever had a sexually transmitted disease;
·might have had a sexually transmitted disease that was not apparent to him; or
·held any belief that he might possibly be suffering from a sexually transmitted disease.
In addition, it was said, there was no assertion by the Crown or the victim that she had contracted any such disease.
Again, for similar reasons to those advanced in relation to ground 2, I would reject this ground. As the decision in Khem also shows, unprotected sex is properly viewed by courts as carrying with it an inherent risk of the transmission of a sexually transmitted disease, at least in a case where the offender has been previously sexually active.[17] In an exceptional case, the offender might be able to establish that there had been no prior sexual contact with any person, but that would be a matter for proof by the defence, in order to remove the foundation for the finding that this is an inherent risk of unprotected sex.
[17]Ibid [17]–[20], [34].
As the Crown correctly submitted, it is the recklessness of the action which goes to the offender’s culpability. The conclusion is not affected by the absence of evidence that the applicant was in fact carrying a sexually transmissible disease or had in fact engaged in reckless sexual conduct with other partners.[18]
[18]Ibid.
Grounds 4 and 5 — manifest excess
Grounds 4 and 5 contend that the head sentence and the non‑parole period were outside the range reasonably open to the sentencing judge. According to the submission, both the head sentence of 12 years and the non‑parole period of nine years ‘overstate the gravity of the total criminality and undervalue the matters relevant to mitigation’. Reliance is placed on the following matters:
·the applicant’s genuine remorse;
·the fact that he had attended 25 counselling sessions and that, according to the submission, Dr Sullivan found the applicant to be ‘unusually open to acceptance of responsibility, with a capacity to reflect upon his wrongdoing and a demonstrated amenability to treatment’;
·the fact that he had publicly stated to the victim and to members of the family that her account of what he had done to her was to be believed;
·he had pleaded guilty at the earliest practicable opportunity;
·he had achieved stable and responsible employment, notwithstanding a difficult upbringing; and
·he had ongoing family support, and support from his employer who was prepared to employ the applicant again on his release.
In her sentencing reasons, the judge referred to the decision in DPP v D D J, where this Court said:
As this Court has stated repeatedly, sexual offending against children is a matter of the utmost seriousness. The maximum penalty of 25 years for the offence of maintaining a sexual relationship with a child under the age of 16 reflects the gravity with which the community views sexual crimes against children.[19]
[19] DPP v D D J (2009) 22 VR 444, 453 [36] (citations omitted) (‘D D J’).
As her Honour noted, the Court in D D J examined a number of decisions concerning sentences for this offence. That survey revealed that there was a significant variation in sentences, but that a sentence above 10 years was ‘quite exceptional’,[20] as her Honour noted.[21] The Court in D D J expressed the view that there was a serious question about whether current sentencing practices for the offence were adequate. But the Director’s appeal in that case and the resentencing of the respondent were governed by current practice, because the respondent had pleaded guilty on the reasonable assumption that he would be sentenced in accordance with current practice.[22] The judge in the present case quite rightly took exactly the same approach.
[20]Ibid 459 [63].
[21]Reasons, [134].
[22] D D J (2009) 22 VR 444, 460 [65].
Whether the Director will on another occasion raise for consideration by this Court the adequacy of current practice for this offence is a separate matter.[23] I approach this application, as the judge did, on the basis that the judge was bound to have regard to current sentencing practices, although current practice never requires the imposition of a particular sentence.[24]
[23]Cf Winch v The Queen (2010) 27 VR 658; Hogarth v The Queen [2012] VSCA 302.
[24]Hudson v The Queen (2010) 30 VR 610, 617 [31] (‘Hudson’).
As her Honour noted in her reasons, the case before her was more serious in two respects than any of those tabulated in D D J: first, because of the very young age of the victim when the offending commenced and, secondly, because of the length of the period of the offending. Her Honour also gave careful consideration to the recent decision in DPP v D Z[25] and to the decision in R v G M T[26] relied on by the defence. In my respectful opinion, her Honour informed herself about the applicable sentencing range in an exemplary fashion, taking proper account of relevant comparable cases in order to discern similarities and differences and in order to decide for herself the parameters within which it was open to her to sentence.[27]
[25][2009] VSCA 301.
[26][2006] VSCA 13.
[27]Hudson (2010) 30 VR 610; Hasan v The Queen [2010] VSCA 352.
In response to a question from her Honour, the prosecutor submitted that the appropriate sentencing range was a head sentence of between eight and 10 years and a non‑parole period of between six and eight years. Her Honour concluded, however, that while this Crown submission was of assistance, it fell short of a range appropriate to the case. Her Honour said:
The duration of the offending together with all its aggravating features and the weight which must be placed on all relevant sentencing considerations puts it towards the most serious end of the sentencing range for offences of this type.[28]
[28]Reasons, [142].
There is no challenge to that finding nor, in my respectful view, could there have been. The finding was well open in the circumstances. As I have said, the aggravating features identified by the judge demonstrate that this was offending of the highest culpability. That is not to say that worse cases cannot be imagined. I referred in argument to the case of R S J v The Queen.[29] That was not a case of maintaining a sexual relationship; rather, it involved multiple counts of incest. In
substance, of course, the present case was the maintenance of an incestuous relationship over a very long period.
[29][2012] VSCA 148.
In the circumstances, I consider it was reasonably open to the judge to impose the sentence which she did, giving proper weight both to aggravating and to mitigating factors. The non‑parole period is to be approached in exactly the same way. That is, the question for consideration is whether it was reasonably open to her Honour to conclude that a non‑parole period of nine years was the minimum which justice required that the applicant serve.[30]
[30]Teng v The Queen (2009) 22 VR 706, 723 [69].
In my opinion, it was open to her Honour to reach that conclusion. As was pointed out in argument, a non‑parole period of nine years on a head sentence of 12 years is unexceptional. A period of three years on parole — assuming parole is granted at the earliest eligibility date — is about as long a period as it is realistic to maintain an effective supervisory regime.
I would therefore grant leave to appeal on grounds 4 and 5. In my opinion, the fact that this sentence and the non‑parole period are at the upper end of current practice rendered the manifest excess ground reasonably arguable. I do not consider that any of the other grounds was reasonably arguable. On the grant of leave, I would dismiss the appeal.
WHELAN JA:
I agree. I would only add that in terms of current sentencing practice, I consider this sentence to be at the top of the permissible range.
Having considered the analysis of the relevant sentences in DPP v D D J[31] and, in particular, the treatment by the Court of Appeal of the decision of R v G M T,[32] and having considered the relevant published sentencing statistics, I do not consider this sentence to be outside the permissible range.
[31](2009) 22 VR 444.
[32]The citation for R v G M T is [2006] VSCA 31. Its treatment in DPP v D D J is at (2009) 22 VR 444, 456 [47]–[51].
MAXWELL P:
The orders of the Court are as follows:
1. The application for leave to appeal is granted.
2. The appeal is treated as having been instituted and heard instanter and is dismissed.
‑‑‑
APPENDIX
The following extract is taken from R v B M (Unreported, County Court of Victoria, Judge Cannon, 8 November 2011), [15]–[28]:
Incident One
15 When the complainant was about four years old, she and her younger brother were watching movies with you.
16 The complainant was under a blanket with you when you began tickling her side. You eventually moved your hands down her leg, inside her underpants and onto her vagina. You then cupped your daughter’s hand in yours and placed it on your penis. You directed her hand, rubbing it up and down your penis. The complainant acquiesced in this as she was concerned that you might be angry if she did not.
Incident Two
17 The complainant recalls that she tried to tell her mother on one occasion. This occurred when she was about four years old and felt your penis touch her on the bottom when she was in bed with you. The complainant’s mother confronted you at that time.
However, you later called the complainant and threatened to hurt her if she told her mother again, which caused her to become ‘really scared’. Whilst it was not clear as to whether your threat to harm the complainant was in a physical sense or other, it was conceded by your counsel that you certainly engaged in emotional blackmail towards your child, and that your threat to harm her, although not to physically harm her, resulted in your child’s silence which was borne of fear.
18 In relation to the disclosure at that time, the complainant’s mother recalls this. She said in her police statement:
… an incident I recall when [the complainant] was four years old in 2001 … [She] told me that while she was at her Daddy’s she felt something hard and wet at her bottom, like it was trying to get in … I spoke to [BM] about it and he denied it happened … [BM] came and spoke to [the complainant] about this in my presence shortly after. [BM] was angry and forceful towards her and was saying that if she went around saying things like that he would go to gaol and she wouldn’t see him again.
19 Your then wife also recalled this disclosure, saying that you were crying when you told her about it and you told her that it was absurd and that you and [the child’s mother] had agreed that [the child] must have ‘picked it up at school and it would go away.’
Incident Three
20 When [the complainant] was around six or seven years old, you got her to put your penis in her mouth. You tried to do this on many occasions, even using chocolate topping on your penis in order to have the complainant comply. Your daughter continually refused. However, on one occasion, she finally gave in and allowed you to put your penis in her mouth. She opened her mouth and put it over your penis. She said that your penis did not penetrate very far.
Incident Four
21 [The complainant] was at your house and was around eight years old or a little younger. You had been regularly attempting to penetrate her vagina with your penis. On this occasion, you removed the door handles to your bedroom as you had done on other occasions. You got on top of [the complainant] and began to rub your penis over her clitoris. You pushed your penis harder and harder until you were able to insert the tip of it into her vagina. You then pushed harder and your penis went into the complainant’s vagina. [The complainant] told you that this was hurting and you pulled it out. She remembers this occasion as being the first on which you penetrated her vagina with your penis. She said that you hurt her and that she was frightened. She complained to you of the pain that she was experiencing, but you told her that this was normal.
Incident Five
22 [The complainant] recalled an incident when she was holding the bars of the bed and was up against the bed head whilst you were ‘doing the penis and clitoris thing’. You then got on top of her and told her that if she let you ‘go inside (her)’ then you would buy her a phone. [The complainant] refused and eventually you gave up. You kept rubbing her clitoris with your penis whilst you tried to persuade her to allow you to penetrate her vagina. This incident occurred when [the complainant] was about eight or nine years old.
Incident Six
23 When [the complainant] was eight or nine years old she recalls [your partner] going to Sydney for work. She recalls that she was forced by you to sleep naked with you in her bed that night.
Incident Seven
24 [The complainant] recalls an incident occurring when she was older than seven years of age, but in her VARE, she indicated that she was unable to say how old she was. On this particular occasion you kept pushing your penis into her vagina trying to sexually penetrate her, and you managed to do so on a couple of occasions. In her VARE, she said that you kept pushing on the outside and trying to get in and that you slipped in a couple of times and it hurt.
25 You also penetrated [the complainant’s] vagina with your finger on this occasion and scratched her with your fingernail. She complained of the pain from this, but you told her to stop lying and trying to get out of it. She eventually pushed your hand away but this was hard because you kept trying to force your finger deeper into her vagina.
26 On two occasions, you had tried to anally penetrate [the complainant]. On this occasion you told her that she should let you go inside her bottom because it would not hurt as much. She said no to this and asked ‘what about my poo?’, but you said not to worry.
27 You penetrated her with your penis. [The complainant] was not sure how far it went in. She said that this felt uncomfortable and weird and told you to take it out, which you did. However, you persisted a couple more times in a bid to anally penetrate her. Whilst you were doing this, you told [the complainant] to just sit still and that she should trust you when you said it would become more comfortable.
Incident Eight
28 [The complainant] recalls that when she was thirteen years of age, she was craving a Subway sandwich to eat. She asked you if she could have one and you said to give you a kiss, which she did. You then told her to come to your room. In your room, you got on top of her and rubbed her clitoris with your finger, saying to her, ‘How can you not want me to do this?’ On this occasion, you tried a number of times to penetrate [the complainant’s] vagina with your penis. She told you to stop and you agreed, she says ‘just to go over the top’. You then masturbated your penis and ejaculated in [the complainant’s] presence. You then gave [the complainant] $50 to go to Subway. I make the comment that effectively, you treated your own daughter like a prostitute — but worse than this, you were prepared to exploit material need that she had in order to self gratify, knowing that your daughter was anything but a willing participant and knowing that what you were doing was repugnant and wrong.
15
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