Boxer (a pseudonym) v The Queen
[2021] VSCA 300
•4 November 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0181
| GEOFFREY BOXER (a Pseudonym)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]To ensure that there is no possibility of identification of the victims of sexual offending, this judgment has been anonymised by the adoption of a pseudonym and initials in place of the names of the complainants.
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| JUDGES: | Niall and Walker JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 12 October 2021 |
| DATE OF JUDGMENT: | 4 November 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 300 |
| JUDGMENT APPEALED FROM: | DPP v Boxer (a Pseudonym) [2020] VCC 1209 |
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CRIMINAL LAW – Appeal – Sentence – Four charges of incest, two charges of threat to kill, one charge of indecent act with child under 16, one charge of attempted incest – Total effective sentence of 16 years, three months’ imprisonment with non-parole period of 13 years – Whether sentence manifestly excessive – Whether judge mischaracterised seriousness of offending – Lack of aggravating features – Presence of mitigating factors – Sentence inconsistent with current sentencing practices – Principle of totality – Sentence outside range reasonably open – R v Kilic (2016) 259 CLR 256, considered – Appeal allowed – Resentenced to 13 years, nine months’ imprisonment with non-parole period of 10 years.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms J Poole | Adrian Paull Criminal Lawyers |
| For the Respondent | Mr N Hutton | Ms A Hogan, Solicitor for Public Prosecutions |
NIALL JA
WALKER JA:
The applicant, ‘Geoffrey Boxer’, was charged with one charge of attempted incest, five charges of incest, one charge of indecent act with a child under 16, and two charges of making a threat to kill. On 10 and 11 February 2020, he was convicted by jury verdict of charges 2–9 and acquitted of Charge 1 (a charge of incest). He was sentenced as follows:
Charge on Indictment Offence Maximum Sentence Cumulation 2. Attempted incest 20 years 7 years 12 months 3. Incest 25 years 10 years 12 months 4. Indecent act with a child under 16 10 years 2 years 3 months 5. Make threat to kill 10 years 2 years 6 months 6. Incest 25 years 10 years 6 months Base 7. Incest 25 years 10 years 15 months 8. Make threat to kill 10 years 2 years 6 months 9. Incest 25 years 10 years 15 months Total effective sentence: 16 years and 3 months’ imprisonment Non-parole period: 13 years Pre-sentence detention declared: 180 days Section 6AAA statement: N/A Other relevant orders: Sentenced as a serious sexual offender on charges 4, 5, 6, 7, 8 and 9. Order for registration under s 34 of the Sex Offenders Registration Act 2004 with reporting period of life.
The applicant seeks leave to appeal against sentence on the following ground:
The individual sentences imposed on the charges of incest and attempted incest (charges 2, 3, 6, 7, 9) together with the orders for cumulation, are manifestly excessive and resulted in a total effective sentence and non-parole period that is manifestly excessive.
Particulars:
Insufficient weight was given to:
(a) Current sentencing practice;
(b) The principle of totality, particularly in respect of charges 2 and 3;
(c) The applicant’s personal circumstances and matters in mitigation.
For the reasons that follow, we would grant leave to appeal against sentence and allow the appeal. We would re-sentence the applicant as follows:
Charge on Indictment Offence Maximum Sentence Cumulation 2. Attempted incest 20 years 5 years 10 months 3. Incest 25 years 8 years and 6 months 12 months 4. Indecent act with a child under 16 10 years 12 months nil 5. Make threat to kill 10 years 2 years 4 months 6. Incest 25 years 9 years Base 7. Incest 25 years 8 years and 6 months 15 months 8. Make threat to kill 10 years 2 years 4 months 9. Incest 25 years 8 years and 6 months 12 months Total effective sentence: 13 year and 9 months’ imprisonment Non-parole period: 10 years The offending
The facts concerning the offending are set out in the reasons of the sentencing judge. In summary they are as follows.
The applicant offended against two children: his stepson, AB, and his stepdaughter, TB. TB has a cognitive impairment. The applicant was in a relationship with AB’s and TB’s mother for about five years, and they had a daughter together.[2]
[2]DPP v Boxer (a Pseudonym) [2020] VCC 1209, [5] (‘Reasons’).
The family lived in a number of different places, including interstate. Before the family moved back to Victoria, there were two occasions on which the applicant sexually assaulted TB. When she was aged 6, the applicant penetrated her vagina with his penis. When she was aged less than 10, the applicant penetrated her vagina with his penis on another occasion. On both occasions TB said ‘no’, but the applicant persisted. These were uncharged acts, but they provided the context for the later offending in Victoria, and showed that the applicant’s later sexual abuses of TB were not isolated acts. At trial, the prosecution relied on these acts as showing the applicant had an ongoing sexual interest in TB.[3]
[3]Reasons [6].
When TB was aged 10 or 11, on an occasion when the applicant and TB were alone in the house together, the applicant told her he was coming to have sex with her. Despite her saying ‘no’, the applicant penetrated TB’s vagina with his penis. That is the subject of Charge 3 of incest.[4]
[4]Reasons [7].
When TB was aged about 12, one night she was outside and the applicant approached her and played with her breasts under her top. That is the subject of Charge 4 of committing an indecent act with a child. The applicant told TB to come with him, but she refused. The applicant then threatened TB that if she told anyone, the applicant would kill her family. That is the subject of Charge 5 of making a threat to kill. The applicant then took TB further into the bush and penetrated her vagina with his penis. That is the subject of Charge 6 of incest. TB again said ‘no’, but the applicant put his hand over her mouth and told her to be quiet.[5]
[5]Reasons [8].
On another occasion when the applicant and TB were alone in the house together, the applicant told TB to put on a miniskirt with no underwear. When TB refused, the applicant again threatened to kill her family if she told anyone. That is the subject of Charge 8 of making a threat to kill. The applicant made TB put on the miniskirt and then penetrated her vagina with his penis. That is the subject of Charge 9 of incest.[6]
[6]Reasons [9].
When AB was aged between 8 and 10 years, the applicant took AB under a bridge near the property where they were living, and had him touch the applicant’s erect penis. That was an uncharged act, but it provided the context for later events. On another occasion the applicant sat down and had AB sit on his lap. Both the applicant and AB had their pants down and the applicant attempted to insert his penis into AB’s anus. That occasion was the subject of Charge 2 of attempted incest.[7]
[7]Reasons [10].
On another occasion the applicant took AB to a waterhole in the country. The applicant took AB behind a mound of dirt and penetrated AB’s anus with his penis. That is the subject of Charge 7 of incest.[8]
[8]Reasons [11].
The applicant’s offending had a significant impact on AB and TB, which was set out in the impact statements read out by the prosecutor at the plea hearing.[9]
[9]Reasons [12].
The applicant’s personal circumstances
The applicant has a longstanding diagnosis of schizophrenia, and was receiving treatment from mental health services in Queensland where the applicant was previously living until he attended Melbourne for his trial and was remanded in custody following the findings of guilt by the jury. He is on medication for that condition, and is being seen as an out-patient in the Corrections system.[10]
[10]Reasons [31]–[32].
The applicant was at the time of sentence aged 51 years. His parents had separated when he was aged 5 and his mother remarried when the applicant was aged 8. The applicant’s stepfather was an alcoholic and committed family violence against him, his mother and his brother. This, at least in part, may have contributed to the impaired nature of the applicant’s mental health. Further, the applicant abused various substances from his mid-teens, which may also have arisen because of his childhood, and that drug abuse inevitably worsened his mental illness.[11]
[11]Reasons [28]–[30].
The applicant moved to Queensland with his mother after she left her second marriage, and the applicant remains close to her, and she is extremely supportive of him. After leaving school at 15, the applicant worked wherever he could find work, which meant moving around Australia multiple times. The applicant stopped working about 20 years ago and has been homeless at times, and his relationship of 5 years with the mother of his victims was his most significant relationship.[12]
[12]Reasons [39].
The applicant was assessed by Dr Darjee, a psychiatrist, who in his report described the applicant’s background, diagnosis, and treatment, as well as expressing his opinion about the applicant’s current mental state, prognosis, and risk of sexual re-offending. At the time of Dr Darjee’s assessment of the applicant in April 2020, his mental state was stable, and Dr Darjee considered the applicant to be relatively well, although he was still displaying some negative symptoms such as hearing voices. Dr Darjee considered the applicant’s relative stability was likely due to the applicant being on regular antipsychotic medication, and being free from substance use, both likely because of the applicant being in custody.[13]
[13]Reasons [33].
Dr Darjee formed the opinion that while the applicant was clearly able to be sexually aroused by children, both pre-pubescent and pubescent, at the time of the offending, there was insufficient evidence now for him to diagnose paedophilia. That was principally because the applicant had not offended against other children before or since, the children the applicant offended against were not strangers or unrelated to him, and there was no evidence of the applicant having viewed child sexual exploitation material.[14]
[14]Reasons [35].
Sentencing remarks
The sentencing judge observed that, in relation to sexual offending against children, it is presumed that they suffer harm from such offending. The harm can be long term and serious, and both physical and psychological, and includes future harm. In the case of AB and TB, she accepted that the harm has been long term, serious, psychological harm which is continuing. She took the impact of the offending on AB and TB into account in deciding the appropriate sentence.[15]
[15]Reasons [17].
Her Honour also observed that the commission of sexual offences against a child is always serious, but that there were a number of factors that made the applicant’s offending ‘particularly serious’.[16] These factors were as follows:
[16]Reasons [19]–[26].
(a) the gross breach of trust in abusing two children who trusted the applicant, and whose mother trusted the applicant as their stepfather;
(b) AB and TB were vulnerable because of their age and relationship to the applicant, and TB had an additional vulnerability due to her cognitive impairment;
(c) there was around a 20 year age difference between the applicant and TB and AB;
(d) the applicant exploited the vulnerability of TB and AB by acting on opportunities to offend over a period of years;
(e) for TB the offending involved persistence in sexually penetrating her, despite her resistance;
(f) by his threats to TB, the applicant intended to, and did, prevent her from telling anyone at the time the abuse was occurring, and this had the result that the applicant could continue his abuse of both children; and
(g) there was, and remains, a significant impact on TB and AB.
In consequence of the above, the sentencing judge found the applicant’s offending to constitute serious examples of each type of offending, albeit not objectively the most serious. She found the applicant’s moral culpability to be high.[17]
[17]Reasons [27].
The sentencing judge sentenced the applicant on the basis that he had an ongoing sexual interest in TB and AB, which he acted upon on a number of occasions. However, she accepted Dr Darjee’s opinion that a diagnosis of paedophilia was not made out, and she did not sentence the applicant on the basis of such a diagnosis.[18]
[18]Reasons [36].
The sentencing judge also had regard to the applicant’s personal circumstances, set out above. Her Honour noted that the applicant had a criminal history between 1988 and 2001, but she did not take that record into account in sentencing because it was not relevant.[19]
[19]Reasons [40].
The sentencing judge observed that there was no suggestion that the applicant’s schizophrenia played any role in his committing the offences. It was, however, a matter personal to the applicant that was relevant to the sentence to be imposed.[20] In that regard, the sentencing judge accepted that, because of the applicant’s mental illness, imprisonment was likely to weigh more heavily on him than on others, and that on receiving his sentence there may be a deterioration of his acute symptoms and an increased risk of self-harm, at least initially. Her Honour considered that these were matters that Corrections Victoria should be aware of.[21]
[20]Reasons [33].
[21]Reasons [34].
The sentencing judge accepted that the passage of time since the offences were committed placed the applicant at a lower risk of re-offending in the same way, and that if the community that needs to be protected from him, arising from a sexual interest in children, was confined to those in a family relationship with him, then the risk was low. She accepted that the applicant was unlikely to re-offend, because he will not be in a position to do so for the foreseeable future.[22] The sentencing judge took into account the lower risk of the applicant re-offending in determining whether to direct otherwise than total cumulation for charges 4–9.[23]
[22]Reasons [42].
[23]Reasons [44].
However, the sentencing judge observed that the applicant was to be sentenced as a serious sexual offender on charges 4–9. Being sentenced as a serious sexual offender meant that the protection of the community from the applicant was the principal purpose for which sentence was to be imposed. Her Honour observed that this was a mandatory provision, and that she had no discretion to depart from this principal purpose.[24]
[24]Reasons [43].
The sentencing judge took into account that the applicant has not been in prison before and that he is, and will continue to be, in prison during a time of uncertainty given the COVID-19 pandemic, and that the risk of contracting the disease in prison was a source of anxiety for him. Her Honour also took into account that, under Stage 4 restrictions in Victoria, the applicant had no current prospect of receiving personal visits from his mother, who remained a resident of Queensland, and who had previously travelled to Melbourne to support the applicant in his trials.[25]
[25]Reasons [45].
In conclusion, the sentencing judge observed that the court must denounce the applicant’s offending and impose a sentence that is just in all the circumstances, and that reflects the community’s abhorrence of sexual offending, particularly against children. She observed that the applicant was a stepfather to AB and TB, thus his offending involved a grave breach of trust, and had a damaging effect on them. Further, her Honour observed that the sentence must be such as to deter other men from sexual offending against children. Her Honour agreed with the applicant’s submission that there was less need for her sentence to deter the applicant from reoffending.[26] Her Honour then imposed the sentences set out at the start of these reasons.
[26]Reasons [50].
Applicant’s submissions
The applicant contended that the sentences imposed upon him were manifestly excessive when regard is had to three matters, in particular: current sentencing practices, the principle of totality, and his personal circumstances and matters in mitigation.
Current sentencing practices
Before the sentencing judge, the prosecution referred to three comparable cases: Director of Public Prosecutions v Walsh (a Pseudonym),[27] Thrussell (a Pseudonym) v The Queen[28] and Carter (a Pseudonym) v The Queen.[29] Each of these cases was decided after the High Court’s decision in Director of Public Prosecutions v Dalgliesh (a Pseudonym).[30]
[27][2018] VSCA 172 (‘Walsh’).
[28][2017] VSCA 386 (‘Thrussell’).
[29][2018] VSCA 88 (‘Carter’).
[30](2017) 262 CLR 428; [2017] HCA 41 (‘Dalgliesh’).
(h) In Walsh, after a plea of guilty, the offender was re-sentenced on the Director’s appeal to a term of 6 years for a single charge of incest (being a representative charge).
(i) In Thrussell, after a trial, the offender was sentenced to a term of 6 years for a single charge of incest; an appeal against sentence was dismissed.
(j) In Carter, also after a trial, the offender was sentenced to a term of 6 years on each of two charges of incest; and appeal against sentence was dismissed.
The applicant observed that the individual sentences for incest in his case were in the range of 10 to 10½ years, whereas in the three comparable cases to which the prosecution referred below the individual sentences were 6 years. The applicant observed that, unlike the present case, two of those cases involved representative charges of incest. He further observed that the sentence imposed upon him for attempted incest was higher than the sentences for incest imposed in those cases.
The applicant also referred to the Sentencing Advisory Council’s Sentencing Snapshot No 242,[31] which he submitted revealed that the sentences imposed on the applicant for each individual charge of incest were significantly above the mean and median sentences imposed in the period from 2014–2015 to 2018–2019. In particular, in relation to the sentence imposed for a charge of incest, he noted that:
[31]Sentencing Advisory Council, Sentencing Trends for Incest in the Higher Courts of Victoria 2014–5 to 2018–9 (Sentencing Snapshot No 242, August 2020) (‘Sentencing Snapshot’).
(k) of the 109 people sentenced to imprisonment for incest, only one received a sentence greater than 10 years;
(l) the average term of imprisonment was 5 years and 4 months; and
(m) the median term of imprisonment was 5 years.
In relation to the total effective sentence, the applicant observed that:
(n) only two of the 109 people received a total effective sentence of more than 16 years;
(o) the median total effective sentence was 8 years (being half that imposed on the applicant); and
(p) the average total effective sentence in the most recent year (2018–2019, being post-Dalgliesh) was 9 years and 10 months, with an average non-parole period of 6 years and 10 months.
The applicant submitted that these statistics revealed that the applicant’s case was an outlier, and that that warranted careful assessment of whether the sentencing discretion had miscarried. He contended that the disparity between the applicant’s individual sentences and the total effective sentence from the mean and medians identified, including post-Dalgliesh, supported the proposition that the sentences imposed on him were outside the range of sentences reasonably open to the sentencing judge.
The applicant also relied on the sentences imposed for what he characterised as more serious instances of incest, in particular Crawford (a Pseudonym) v The Queen[32] and Crouch (a Pseudonym) v The Queen.[33]
(q) In Crawford, after a plea of guilty, the offender was sentenced to a term of 8 years’ imprisonment for a course of conduct charge of incest committed almost daily over a two year period, accompanied by bribery, coercion and control. He was sentenced for three other charges of sexual penetration of a 16 or 17 year old child under care. The total effective sentence was 15 years, with a non-parole period of 8 years. This Court refused leave to appeal that sentence.
(r) In Crouch, after a late plea of guilty, the offender was sentenced to a term of 7 years’ imprisonment for a representative charge of incest. He was sentenced for five other charges of indecent act with a child under 16. The total effective sentence was 10 years and 3 months, with a non-parole period of 7 years. In that case the offender had pleaded guilty on the first day of trial.
[32][2018] VSCA 113 (‘Crawford’).
[33][2019] VSCA 30 (‘Crouch’).
The applicant also referred to Phillips (a Pseudonym) v The Queen.[34] He submitted that the offending in that case was not objectively more grave than his offending, but that the case provided a useful comparison because it involved two complainants and convictions after trial (although there was a guilty plea on the charges involving one complainant). In relation to the charges that proceeded to trial, the offender was sentenced to 6 years and 5 years respectively, for two charges of incest; he was also charged with two charges of indecent act with a child under 16 in relation to the first victim, and three charges of indecent act with a child under 16 in relation to the second victim. The total effective sentence was 11 years and 5 months, with a non-parole period of 9 years.
[34][2018] VSCA 114 (‘Phillips’).
In relation to the non-parole period, the applicant submitted that a non-parole period of 80% is outside the common proportional range of 60%–75% of the head sentence. He submitted that the circumstances of the offending did not justify a non-parole period of that length, and observed that the sentencing judge gave no reasons for imposing such an unusually high non-parole period. In relation to the non-parole period, the applicant also relied upon two recent cases, Trangle (a Pseudonym) v The Queen[35] and Harlow (a Pseudonym) v The Queen.[36]
[35][2021] VSCA 210 (‘Trangle’).
[36][2018] VSCA 234 (‘Harlow’).
(s) Trangle involved far worse offending than the present case (involving some 26 charges), and thus there was a higher total effective sentence (25 years) than in the present case. The applicant relied on Trangle for the proposition that the non-parole period in that case was 19 years, being 76% of the total effective sentence, whereas the applicant’s non-parole period was 80%, a length not justified by the circumstances of his offending.
(t) Harlow was a case that involved the horrific abuse of the offender’s four stepchildren over 10 years. It went to trial. The individual sentences were 6 years and 5 years. The total effective sentence was higher than the applicant’s total effective sentence; but the non-parole period was 71% of the total effective sentence.
The principle of totality
The applicant accepted that the sentencing judge took into account the principle of totality. However, he submitted that a total effective sentence of such magnitude suggests that the principle of totality was misapplied or given insufficient weight. He submitted that the total effective sentence was not a just and appropriate measure of the applicant’s criminality.
Mitigating circumstances
The applicant submitted that, on the plea, he called in aid the following matters, each of which was put to the sentencing judge:
(u) his lack of relevant prior criminal history;
(v) his low risk of re-offending;
(w) his reasonably good prospects of rehabilitation;
(x) his established diagnoses of schizophrenia, intellectual impairment, anxiety and depression;
(y) that this is his first time in custody; and
(z) that he had been through two trials.
Taking into account these matters along with current sentencing practices and the principle of totality, the applicant submitted that the individual sentences imposed are manifestly excessive and, with orders for cumulation the total effective sentence is manifestly excessive and the non-parole period is manifestly excessive.
Respondent’s submissions
The respondent contended that the individual sentences, the total effective sentence and the non-parole period are not manifestly excessive. As to the comparable cases, the respondent observed that such matters are but one consideration in the sentencing process, and are not determinative of the sentencing range. Further, the respondent submitted that in light of the fact that there has only been a limited time since the decisions in Dalgliesh and Carter confirmed the need for a significant and immediate need for an increase in sentences for incest, the available range is less clear than would otherwise be the case where sentencing practices are more settled.
In relation to the applicant’s reliance on the Sentencing Snapshot, the respondent observed that the Snapshot statistics finish in 2019, and there has been some movement in sentencing since then; that the statistics are skewed because they include numerous pleas of guilty; and, more generally, sentences have gone up in the reported period as a consequence of Dalgliesh, which is not fully reflected in the statistics. Further, the respondent submitted that this case involves a serious example of the offence of incest, thus the fact that the sentences imposed were above the mean and the median for the period does not indicate error.
In relation to the additional cases to which the applicant referred, the respondent observed that the seriousness of the offending is only one factor in determining the appropriate length of sentence. In addition, matters personal to the offender must be considered.
(aa) In relation to Crawford, the respondent submitted that the offender had pleaded guilty and received a discount for doing so, and that the Court, in refusing leave to appeal, had described the sentence of 8 years for the incest charge as ‘moderate’.[37] The Court also observed that comparisons between course of conduct charges and individual incest charges are not helpful.[38]
(bb) In relation to Crouch, the respondent accepted that the charge was representative in nature, but submitted that that is not, of itself, particularly indicative of the seriousness of the charge; nor is it likely to lead to a major increase in the sentence imposed, because the offender is still being sentenced for a single instance of the offence. The respondent observed that there was a plea of guilty in Crouch, albeit a late plea. The respondent submitted that the totality of the charged offending in the present case was significantly more serious.
(cc) In relation to Phillips, the respondent submitted that there are significant differences between that case and the present, such that Phillips does not significantly illuminate the issues in the present application.
[37][2018] VSCA 115, [63].
[38]Ibid [68].
In relation to the non-parole period, the respondent observed that this Court has said that, for sentences above 10 years’ imprisonment, the ‘usual range’ of 60%–75% ‘ceases to be of much guidance’ and might lead to the imposition of a non-parole period that does not adequately reflect the gravity of the offending, comply with the sentencing principles or meet the sentencing purposes.[39] Thus there is no indication that the non-parole period was outside the available range.
[39]See, eg, Kumova v The Queen (2012) 3 VR 538, 542–3 [14], 544 [19], 545 [25]; [2012] VSCA 212; Romero v The Queen (2011) 32 VR 486, 493 [25]; [2011] VSCA 45; Mush v The Queen [2019] VSCA 307, [102].
Analysis
As the Courts have recognised, incest committed by a parent on a child is an objectively serious offence that necessarily involves violence.[40] Its seriousness is reflected in the maximum penalty, namely 25 years’ imprisonment. That is the starting point for considering the appropriate sentence to be imposed for such offending. But it is not, of course, the end point. It is also necessary to consider whether the offending was attended by aggravating features, current sentencing practice, and any mitigating features the offender might call in aid. Further, as the High Court observed in R v Kilic:
Where, however, an offence, although a grave instance of the offence, is not so grave as to warrant the imposition of the maximum prescribed penalty ... a sentencing judge is bound to consider where the facts of the particular offence and offender lie on the ‘spectrum’ that extends from the least serious instances of the offence to the worst category, properly so called.[41]
[40]See, eg, Walsh [2018] VSCA 172, [1]–[2]; Dalgliesh (2017) 262 CLR 428, 447 [57]; [2017] HCA 41.
[41](2016) 259 CLR 256, 266 [19]; [2016] HCA 48, quoted with approval in Dalgliesh (2017) 262 CLR 428, 443 [45]; [2017] HCA 41.
In the present case the offending in question was undoubtedly serious. It involved two victims, both of whom were young (aged between 8 and 13) and one of whom had a cognitive impairment, and threats to kill. (The threats to kill were, of course, the subject of separate charges and thus care must be taken in having regard to those threats in sentencing the applicant on the incest charges.)
It is also significant that the offending was not isolated. The applicant was convicted of four charges of incest and one charge of attempted incest. The charges were separated in time and place and, as noted, involved two victims. In the case of TB the offences were separated by more than a year.
Having said that, several of the matters relied upon by the sentencing judge in her characterisation of the offending as ‘particularly serious’ are in fact aspects of many — if not most — cases of parent–child incest. These include the gross breach of trust involved, the vulnerability of the children because of their age and relationship to the accused, the exploitation of that vulnerability, the age difference between the children and the accused, and the significant impact on the victims. Further, the offending lacked aggravating features of the kind that can occur in relation to offending of this kind, such as: additional physical violence or degradation (beyond that inherently involved in the offence itself); ejaculation without the use of a condom that could expose the victims to sexually transmitted disease or, in the case of a female victim, pregnancy; or actual pregnancy resulting from the abuse. Relative to other cases, the conduct involved in each individual charge of incest was not associated with these aggravating features that may elevate the seriousness of the offending and be reflected in a longer sentence. On the other hand, as the judge noted the offending had inflicted long term, serious, psychological harm on the victims which is continuing. From the perspective of the victims, it was obviously very serious offending. The fact that there were two victims made the issue of cumulation a difficult one.
We have also had regard to the comparable cases to which we were taken by the parties. As has often been observed, sentences imposed in other cases are not precedents; and they do not fix boundaries that bind the courts.[42] We also observe that ‘post-Dalgliesh’ examples of sentences imposed for serious offending of this type after a trial are relatively rare. They provide little assistance in the identification of the permissible range of sentences for this type of serious offending after conviction at trial. However, it is notable that of the post-Dalgliesh cases to which we were taken, in the two that involved a trial — namely, Thrussell and Carter — the sentence imposed for a single charge of incest (6 years) was lower than the sentence imposed on the applicant for attempted incest, and considerably lower than the sentences imposed on the applicant for incest.
[42]Dalgliesh (2017) 262 CLR 428, 454 [83]; [2017] HCA 41.
In relation to the statistics found in the Sentencing Snapshot, we observe that reference to median or mean sentences can be nothing more than one factor in the instinctive synthesis. Even then, global statistics operate only as the most general kind of guide, and considerable care must be taken in relying on statistics which do not differentiate between specific features of either offending or offenders (including whether or not guilty pleas were entered).[43] Having said that, we accept the submission that both the individual sentences and the total effective sentence imposed upon the applicant are very much at the upper range of the statistics and can be described as ‘outliers’ in that sense; yet the offending of which he has been convicted, while serious, is not the most serious of this kind of offending.
[43]DPP v Currie [2021] VSCA 272, [130].
In addition, we accept that the applicant was able to draw on several factors in mitigation, in particular his diagnosis of schizophrenia. That invoked Verdins principle 5,[44] as the sentencing judge recognised. When this and the other mitigating factors are taken into account, they further support the proposition that the individual sentences and the total effective sentence were manifestly excessive.
[44]See R v Verdins (2007) 16 VR 269, 276 [32]; [2007] VSCA 102.
Ultimately, we consider that the individual sentences imposed on the applicant for attempted incest and incest were outside the range reasonably available to the sentencing judge. We also consider that the total effective sentence was manifestly excessive.
In addition, we consider that error has been demonstrated in relation to the non-parole period, which was particularly high. While, as the respondent submitted, it is the case that the ‘usual range’ of 60%–75% of the total effective sentence as the non-parole period is of less application for serious offending of this kind, it is notable that no explanation was given for setting the non-parole period at 80% of the total effective sentence. In the circumstances of the present case, we consider that the non-parole period was manifestly excessive.
In light of those conclusions, it is necessary for us to re-sentence the applicant. Bearing in mind the seriousness of the offending, which plainly warranted a significant period of imprisonment, the principle of totality and the mitigating factors, in particular the applicant’s serious mental illness, we would sentence the applicant as set out in paragraph [3] above.
Conclusion
For these reasons, leave to appeal should be granted and the appeal allowed.
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