Brad Moore (a pseudonym)[1] v The Queen

[2018] VSCA 2

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0149

BRAD MOORE (A PSEUDONYM)[1]	Applicant
v
THE QUEEN	Respondent

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

---

JUDGES:	PRIEST and SANTAMARIA JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	30 January 2018
DATE OF JUDGMENT:	30 January 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 2
JUDGMENT APPEALED FROM:	DPP v [Moore] (Unreported, County Court of Victoria, Judge Gucciardo, 7 June 2017)

---

CRIMINAL LAW — Appeal — Sentence — Indecent act with or in the presence of a child (two charges) — Sentences of three years’ imprisonment on each charge — Cumulation two years — Total effective sentence of five years’ imprisonment with non-parole period of three years and three months — Whether sentence manifestly excessive — Appeal allowed — Resentenced to a total effective sentence of 30 months’ imprisonment with non-parole period of 18 months.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr T Kassimatis QC and Mr B Johnston	James Dowsley & Associates
For the Respondent	Mr C B Boyce SC	Mr J Cain, Solicitor for Public Prosecutions

PRIEST JA
SANTAMARIA:

1. On 27 July and 29 July 2016, the applicant, then aged 47 years, committed two indecent acts with his partner’s daughter, ‘JM’, then aged 6 (charges 1 and 2).  He later pleaded guilty in the County Court on 25 May 2017 to two charges of indecent act with or in the presence of a child.[2]

   [2]Crimes Act 1958, s 47(1). The maximum penalty is 10 years’ imprisonment.

1. Following a brief plea, on 7 June 2017 the judge sentenced the applicant to be imprisoned for three years on each charge, two years of the sentence on charge 2 to be served cumulatively with the sentence on charge 1.   Thus, the total effective sentence imposed was five years’ imprisonment, upon which the judge fixed a non-parole period of three years and three months.[3] Pursuant to s 6AAA of the Sentencing Act 1991, the judge declared that but for the plea of guilty, he would have sentenced the applicant to be imprisoned for six years, and would have fixed a non-parole period of four years.

   [3]Pursuant to s 34 of the Sex Offenders Registration Act 2004, the applicant was ordered to be a registrable offender 15 years.

1. The applicant seeks leave to appeal against that sentence on two grounds as follows:

1    The sentencing discretion miscarried as a result of the Judge’s finding that the Applicant’s offending — comprising two instances separated by two days — ‘required a significant measure of cumulation, one upon another in recognition of its separate occurrence’; and

2    In all the circumstances:

(a)the individual sentences imposed;

(b)the order for cumulation made;

(c)the total effective sentence; and

(d)the non-parole period

are manifestly excessive and such as to have offended the principle of totality.

1. In our view, leave to appeal should be granted, the appeal allowed and the applicant resentenced in the manner we will later set out.

1. The prosecutor opened the facts as follows:

[JM], the complainant … was aged six at the time of the offences; she’s now aged seven.  [The applicant was born] on 10 January 1969.  He was aged 47 at the time of the offences; he’s now age 48.

[‘JC’] is the complainant’s father, [‘WX’] is the complainant’s mother.  [JC] and [WX] were together for almost two years; they separated in May 2011.  After separating, they shared custody of the complainant.  [WX] met the [applicant] in 2013.  After about a year, [WX] moved in with the [applicant].  The complainant would stay with them about two nights a week.  The [applicant] took on a parenting role for the complainant.  When [WX] worked late, the [applicant] would collect the complainant from school and take her home.  He would make her dinner, bathe her and put her to bed. 

On 27 July 2016 in the evening, the [applicant] was looking after the complainant at home while [WX] was at work.  The complainant went to the bedroom and waited for the [applicant] to put her to bed.  The [applicant] came into the bedroom, took his pants off and got into the bed with her.  He lifted the bed cover and showed her his penis.  He told her to touch it.  She touched his penis with her hand.  She put her hand around his penis and moved it up and down.  She told the [applicant] that it felt it squishy.  He responded that it of course it felt squishy.  Afterwards, she felt something on her hands.  She washed them and went back to bed.

On 29 July 2016, the [applicant] was again looking after the complainant while [WX] was at work.  The [applicant] again got into bed with the complainant and asked her to touch his penis.  She put her hand around his penis and moved it up and down.  Afterwards, she washed her hands and went to bed.

The complainant felt silly and uncomfortable because although she was told by the [applicant] to touch his penis, she though that she shouldn’t have done it.  She believed that she could get into trouble.  The [applicant] told the complainant that they had to stop doing it.  She felt better when he said this.

On 30 July 2016, just before midday, the complainant arrived to stay with [JC].  She later told [JC] that she knew what his front looks like.  ‘But it looks like a tube with a hole in the end’.  The complainant had been taught to use the word ‘front’ to describe male and female genital.  [JC] asked her how she knew this.  The complainant said that she didn’t to tell him [sic.] because [the applicant] said not to say anything.

[JC] responded that she could tell him anything.  She began to cry and said that she couldn’t tell him because it is illegal.  She then confirmed that she had seen [the applicant]’s front, that he showed it to her and said that she could touch him if she didn’t say anything or tell anybody.  The complainant felt good about telling [JC] because the [applicant] would know what will happen if he does it again.  [JC] rang the after-hours Child Protection phone number to report the matter. 

On 1 August 2016, the complainant spoke to police at the Frankston Sexual Offences and Child Abuse Investigation Team.  A statement was taken from her.

On 3 August 2016, police asked the [applicant] to come to the Frankston Police Station.  About 11.30 am, the [applicant] arrived home.  [WX] noticed that both his hands were covered in blood.  [WX] asked what had happened, the [applicant] said that did it to himself.  He said that last Wednesday, he let the complainant touch him down there.  He confirmed that he had ejaculated.  [WX] couldn’t hear any more, she couldn’t believe it.  [WX] drove him to Frankston Hospital, she then called a friend to come to the hospital to support her.

The [applicant] was treated for lacerations to his wrists.  A psychiatric assessment was conducted by a mental health nurse.  The [applicant] told the nurse that police had arranged him to meet him that morning.  He left work, he didn’t police [sic.], he felt suicidal, he didn’t want to go to gaol.  On 5 August 2016, a record of interview was conducted with the [applicant] at the Frankston Police Station.  During the interview, he said that he got her out of the bath … ‘She was standing there wearing no clothes’.  He took his t-shirt off and lay down on the bed and said, ‘Come here sweetie, let’s have a hug’.  [She] pulled … his pants down.  He still had his underpants on ...  He got her hand and put it on him, meaning his penis.

[He] pulled his underpants to his knees, she put her hand on his penis, he put his hand over hers and started to masturbate himself.

[He] put some lubricant … on and she continued to do so until he ejaculated.  [He] allowed it to happen again, very similar circumstances.  [He] said to her, ‘You can’t tell anybody because what we did was very wrong’ and that it was illegal.  [The] second time she started to play with him, he squeezed the lube on his penis and she massaged ...

1. With perspicuous and scrupulous fairness, counsel for the respondent in this Court conceded in writing that ‘the individual sentences imposed here are twice the length of the median sentence imposed’ as disclosed by relevant statistics,[4] in circumstances where the applicant, who has no prior convictions, had made admissions and entered an early plea of guilty.  He noted that the sentencing cases cited by the prosecutor on the plea[5] were either not ‘helpful’, ‘easily distinguishable on the facts’ or told ‘in favour of the applicant’s claim as to manifest excess’.  Significantly, he submitted that ‘it is plainly open to this Court to conclude that the sentence is manifestly excessive’. 

   [4]See Sentencing Advisory Council, Sentencing Snapshot No 206: Sentencing Trends in the Higher Courts of Victoria 2011-12 to 2015-16 – Indecent Act with a Child Under 16 (May 2017).

   [5]Soo v The Queen [2014] VSCA 304; McPherson v The Queen [2014] VSCA 59; IRJ v The Queen [2011] VSCA 376; O’Brien v The Queen (A Pseudonym) [2014] VSCA 94; Warren v The Queen [2013] VSCA 372; R v WS [2006] VSCA 59; SLJ v The Queen (2013) 39 VR 514.

1. Counsel for the applicant properly conceded that the offending was serious, and that it ‘was important that adequate weight be given by the sentencing judge to denunciation, deterrence and protection of the community’.  Nevertheless, it could readily be concluded that the sentence imposed was manifestly excessive in light of:

·     the applicant’s admissions to police;

·     his pleas of guilty, entered at the earliest practicable opportunity;

·     his acceptance of responsibility and remorse; 

·     his self-harm following disclosure of the offending, illustrative of his regret;

·     the fact that the applicant has no criminal history and was sentenced as a person of previous good character;

·     the applicant’s solid work-history;

·     the steps taken during his time on bail to engage with counselling, targeting his offending behaviour; and

·     the assessment that the applicant posed only a low-moderate risk of re-offending.

1. In light of the considerations put forward by the applicant’s counsel — fortified by the various matters advanced by the respondent — and drawing upon our own strong impressions, we have concluded that the sentence is manifestly excessive.  That conclusion does not, of course, depend upon the identification of any specific error.  Indeed, it is a conclusion that does not admit of much elaboration,[6] save to state that we have formed the view that the sentence imposed is manifestly too long.[7]  In that regard, as has been said more than once, excess is, or is not, plainly apparent; and a sentence is, or is not, unreasonable or plainly unjust.[8]  Plainly, in our view, the individual sentences on each charge, and the degree of cumulation ordered between them, were both outside the range of those open to the primary judge in the proper exercise of the sentencing discretion. 

   [6]R v Kenny (Unreported, Victorian Court of Criminal Appeal, Young CJ, Starke and Marks JJ, 2 October 1978); Noa v The Queen [2013] VSCA 4, [12] (Priest JA); Allen v The Queen (2013) 36 VR 565, 573 [51]-[52] (Priest JA).

   [7]Dinsdale v The Queen (2000) 202 CLR 321, 325–6 [6] (Gleeson CJ and Hayne J). See also Clarkson v The Queen (2011) 32 VR 361, 384 [89].

   [8]Ibid.

1. As a result, we would grant the applicant leave to appeal against sentence; allow the appeal; and set aside the sentences imposed below.  In lieu of the sentences imposed in the County Court, we would sentence the applicant to be imprisoned for 21 months on each of charges 1 and 2.  We would order that nine months of the sentence on charge 2 be served cumulatively with the sentence on charge 1.  The total effective sentence is thus 30 months’ imprisonment.  We would fix a period of 18 months before which the appellant is not to be considered eligible for release on parole.  Any other orders of the County Court should be confirmed.

1. Pursuant to s 6AAA of the Sentencing Act 1991, we would declare that, but for the appellant’s plea of guilty, we would have sentenced the appellant to be imprisoned for four years, and fixed a non-parole period of two years and six months.

---