Bromley v the Queen
[2018] VSCA 329
•6 December 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0057
| JOHN HAROLD BROMLEY | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | KYROU and NIALL JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 16 November 2018 |
| DATE OF JUDGMENT: | 6 December 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 329 |
| JUDGMENT APPEALED FROM: | DPP v Finlay (a pseudonym) [2018] VCC 133 (Judge Higham) |
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CRIMINAL LAW – Appeal – Sentence – Four charges of indecent assault upon male person – Offending took place between 1972 and 1980 – Maximum penalty then 5 years’ imprisonment – Sentenced to 7 years and 9 months’ imprisonment with non-parole period of 4 years and 9 months – Whether sentence manifestly excessive – Relevance of maximum penalty – Relevance of sentencing practices at time of offending – Appeal allowed – Resentenced to 4 years’ imprisonment with non-parole period of 2 years.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms C A Boston | Doogue + George |
| For the Respondent | Ms D I Piekusis | Mr J Cain, Solicitor for Public Prosecutions |
KYROU JA
NIALL JA:
On 9 February 2018, the applicant pleaded guilty to historical sexual offences committed between 1972 and 1980. On 16 February 2018, he was sentenced as follows:
Charge on indictment Offence Maximum Sentence Cumulation
1
Indecent assault upon a male person [Crimes Act 1958 s 68(3A)]
5 years
4 years
Base
2
Indecent assault upon a male person
5 years
4 years
2 years
3
Indecent assault upon a male person
5 years
2 years
12 months
4
Indecent assault upon a male person
5 years
15 months
9 months
Total Effective Sentence:
7 years and 9 months’ imprisonment
Non-Parole Period:
4 years and 9 months
Pre-Sentence Detention:
Nil
6AAA Declaration:
10 years’ imprisonment with a non-parole period of 7 years and 3 months
Other Orders:
Mandatory reporting for life under s 34 of the Sex Offenders Registration Act 2004.
The applicant seeks leave to appeal against his sentence on the single ground of manifest excess.
For the reasons that follow, we would grant leave to appeal, allow the appeal and resentence the applicant as set out in [76] below.
The offending
The applicant’s offending spanned a nine-year period from 1972 to 1980 and involved four young male victims. The applicant was aged between 31 and 40 at the time.
The applicant operated a butcher shop in metropolitan Melbourne. Each of the four victims either worked with the applicant at the shop or were befriended by him.
Charge 1
Charge 1 related to the victim known as ‘AB’. AB grew up in a large family where money was scarce. His father was violent. AB’s mother, who was a customer of the applicant, asked whether he could take on AB in the shop. The applicant employed AB on a casual basis as a ‘wash up boy’, working after school and on Saturday mornings. The applicant was friendly towards AB and showed interest in him. He bought AB food and drink and paid for haircuts and shoes. On one occasion, he contributed to the purchase of a pushbike for AB. AB regarded the applicant as a father figure, and AB’s family came to rely on his earnings from the shop.
Charge 1 was a course of conduct charge.[1] It alleged that, between 1 January 1972 and 31 December 1973, the applicant masturbated AB and had AB masturbate him and perform oral sex on him. AB was aged between 12 and 13 at the time. The offending began a few weeks after AB commenced work at the shop and occurred on a regular basis thereafter. The offending took place in the shop and also at the applicant’s holiday house in a rural area north of Melbourne. AB willingly went to the holiday house because the applicant allowed him to shoot firearms and drink alcohol there. On some occasions, the applicant’s wife and guests were present at the house. At other times, when it was just the applicant and AB, the applicant would give AB alcohol before offending against him.
[1]See [55]–[57] below.
Charge 2
Charge 2 was also a course of conduct charge. It related to offending that took place in 1976 against a victim known as ‘CD’. CD was aged between 12 and 13 at the time. CD’s parents were friends of the applicant. The applicant invited CD to his holiday house and allowed him to shoot firearms and drink beer. CD enjoyed the visit, and his parents permitted him to visit again. On a subsequent visit, the applicant and CD were alone. The applicant had CD masturbate him and perform oral sex. CD continued to visit the applicant’s holiday house despite his misgivings. Over the next few weeks, the applicant directed CD to masturbate him and perform oral sex.
In March or April 1976, the applicant performed oral sex on CD and then had CD perform oral sex on him. The mutual oral sex occurred on at least another 10 occasions over the year. On one occasion when other guests were present, the applicant took CD away and asked him to suck his penis. CD was upset and told one of the guests what had occurred. Although the guest took CD home, she did not report the matter to police.
Charge 3
Charge 3 related to offending that took place in 1977 against a victim known as ‘EF’. EF was the younger brother of AB and was 11 at the time of the offending. EF accepted a job working at the shop as a ‘wash up boy’. The applicant would play jokes on EF which involved the applicant touching EF’s genitals over his pants or exposing his genitals to EF.
The applicant invited EF to his holiday house. EF readily agreed to go, knowing that his brother had gone to the house and that there was a shooting range there. No-one else was present at the house when they arrived. The applicant gave EF wine at dinner which made him sleepy. The applicant then said it was bedtime and directed EF to sleep in the same bed as him. The applicant lay close to EF, placed his hands on his underpants and fondled his penis. That conduct constituted charge 3. EF eventually went to the toilet where he stayed for a considerable period before returning to bed. In the morning, neither the applicant nor EF mentioned the incident and the applicant drove EF home. EF continued to work at the shop but the applicant did not attempt to assault him again.
Charge 4
Charge 4 related to a victim known as ‘GH’ who was a friend of EF. GH began working at the shop in 1980 when he was 14. After a few weeks, the applicant started asking GH whether he masturbated. When GH said he did not, the applicant said he must be either lying or ‘a poofter’. The next time he asked, GH said that he did masturbate, which seemed to make the applicant happy. The applicant began to expose himself by having his penis hanging out of his pants in the back room when GH was working. On one occasion, GH felt the applicant’s erect penis when the applicant asked him to take some money from his pocket.
One day, when the applicant was driving GH home, he began to rub GH’s penis over his jeans and asked him whether he liked it. GH said ‘no’ and told the applicant that he had better stop. The applicant desisted on that occasion, but did the same thing on a further six occasions over the year. On each occasion, the applicant became more insistent in asking GH how he knew that he would not like it. On the last occasion, the applicant touched GH’s crotch and GH pushed his hand away. The applicant grabbed GH’s penis over his pants and tried to force his hand into his pants. The applicant was very forceful but GH successfully resisted the assault. This assault was the subject of charge 4, which was a representative charge for the six earlier assaults.[2]
[2]See [58]–[59] below.
The police investigation and committal process
CD reported the offending against him to police in 2016. In September 2016, the applicant was interviewed and denied all the allegations put to him. The applicant was interviewed again in November 2016 after EF made a report to police. On this occasion, he admitted horseplay but otherwise denied the allegations. AB then came forward, and the applicant was interviewed in relation to his allegations in February 2017. He exercised his right to silence. GH made a statement and the applicant again declined to answer questions in respect of those allegations.
The applicant was charged and a committal was listed for September 2017. The matter resolved shortly prior to the committal. The applicant entered guilty pleas to the charges prior to any evidence being called.
The judge’s reasons
The judge commenced his reasons for sentence by reciting the circumstances of the offending, the police investigation and the committal process.[3] His Honour recorded that he would give the applicant ‘full credit’ for sparing the victims from giving evidence.
[3]DPP v Finlay (a pseudonym) [2018] VCC 133 [1]–[20] (‘Reasons’).
The judge referred to the impact of the offending on the victims. AB and EF provided victim impact statements in which they detailed long-term emotional problems and issues with substance abuse.[4] CD delivered an oral statement in which he spoke of a lifetime of anger and lost opportunities and said that he had ‘never felt love’.[5] The judge observed that there was no doubt that the applicant’s offending had had a ‘devastating and lifelong impact’ on his victims.[6]
[4]Reasons [21]–[22].
[5]Reasons [24].
[6]Reasons [25].
The judge then turned to the applicant’s personal circumstances. He recorded that the applicant was born in May 1940 and was, at the time of sentencing, 77 years old. The applicant grew up in Melbourne as an only child and was subjected to constant bullying during his school years. He left school at the age of 14 and began an apprenticeship as a butcher.[7]
[7]Reasons [26].
The judge described three instances of sexual abuse perpetrated on the applicant when he was a child. At the age of 10, a man pressed himself against the applicant when he was showering at a pool. When the applicant was 11, a masseur at a local swimming club took an interest in him and would fondle his genitals during the course of massage. The applicant felt he was being accorded special treatment.[8] At the age of 14, the applicant was introduced to the uncle of a friend who would take the applicant and his friend to the movies. One night, the man began to fondle the applicant’s penis and took him back to his shop where there was mutual masturbation. This continued for some months. The man would also perform oral sex on the applicant. The applicant felt conflicted and ultimately terminated contact with the man.[9]
[8]Reasons [27].
[9]Reasons [28].
The applicant undertook national service at the age of 18. When he was 26, he married his step-sister. The applicant’s father died in 1973 and the applicant purchased the butcher shop the following year.[10]
[10]Reasons [29].
The judge noted that the applicant was drinking to excess at the time of the offending and exhibited signs of being dependent on alcohol. He reduced his alcohol consumption after being diagnosed with hypertension in 1980.[11]
[11]Reasons [30].
In the mid-1980s, the applicant set up a company which provided firearms for use in film and television productions. The company was successful and the applicant was able to further reduce his alcohol consumption. He sold his butcher shop in 1987 and began working for the armoury company on a full-time basis.[12]
[12]Reasons [31].
The applicant divorced when he and his wife were in their 50s but their split was amicable. He had not been in a serious relationship since the divorce. When the applicant was in his 60s, he was again diagnosed with hypertension and with an enlarged prostate.[13]
[13]Reasons [32].
The judge noted that the applicant’s company was to be dissolved because, after being charged with the offences, he was no longer permitted to possess or work with firearms. His Honour also noted that the applicant was increasingly suffering from prostate problems which required medication and specialist involvement.[14]
[14]Reasons [33].
The judge referred to a psychological risk assessment report prepared by a clinical psychologist, Dr Rachel MacKenzie. During the applicant’s interview with Dr MacKenzie, he had told her he had no memory of the offending but that ‘it must have happened as they wouldn’t lie’. In relation to the victim impact statements, he suggested that, although he did not think the victims were lying, ‘their memories might be poor or there has been some exaggeration’.[15] The applicant could not identify his motives for perpetrating the abuse nor could he explain why he could not recall it, although he did say that he was drinking heavily at the time and that he had been ‘pretty immature’.[16]
[15]Reasons [35].
[16]Reasons [36].
Dr MacKenzie found that the applicant possessed a low risk of sexual recidivism in light of the fact that he had expressed remorse for the offending, had not re-offended subsequently and suffered from physical conditions which impaired his sexual functioning.[17] The judge accepted Dr MacKenzie’s assessment. He said it was clear, in his view, that the applicant had committed the offences because he derived sexual satisfaction from the acts.[18]
[17]Reasons [38].
[18]Reasons [39].
The judge then recorded counsel’s submissions on the plea.[19] His Honour accepted that the applicant’s rehabilitation was ‘proven, not prospective’. However, he observed that the passage of time had not only allowed the applicant to demonstrate his rehabilitation, but had also given the Court an insight into the lifelong impact of the offending on his victims.[20]
[19]Reasons [40]–[50].
[20]Reasons [48].
In relation to the applicant’s age and health, his Honour found that the applicant’s physical conditions were common among men of his age and were not of such a degree as to make prison more burdensome for him.[21]
[21]Reasons [49].
The sentencing exercise
The judge stated that all four charges reflected serious offending. He found that charges 1 and 2 in particular were ‘grave examples’ of the offending, involving exploitation of the applicant’s position as an employer and family friend to gain the trust of his victims.[22]
[22]Reasons [51].
The judge observed that the offending was not spontaneous or opportunistic, but rather involved a predatory ‘course of seduction’ perpetrated on impressionable young boys.[23] If the victims did not acquiesce to the applicant’s advances, he resorted to persistent, insistent and forceful behaviour. Having regard to these factors, the judge concluded that the applicant’s moral culpability was high.[24]
[23]Reasons [52].
[24]Reasons [53].
In relation to charges 1 and 2, the judge noted that AB and CD had been subjected to multiple incidents of abuse over a prolonged period. The victims’ physical manifestation of enjoyment made them complicit in the applicant’s offending and would have contributed to their conflicted state.[25] In relation to charge 3, the judge observed that the applicant had plied EF with alcohol in an attempt to lower his defences.[26] GH was subjected to the applicant’s ‘insistent importuning’ over a period of time before the applicant attempted to assault him using force.[27]
[25]Reasons [55].
[26]Reasons [56].
[27]Reasons [57].
The judge recorded that general deterrence and denunciation were the primary sentencing objectives.[28] He said that he had had regard to the maximum penalty prescribed by the offence provision and current sentencing practices ‘tempered by sentencing practices [extant] at the time of your offending insofar as they can be established’.[29]
[28]Reasons [58], [60].
[29]Reasons [59].
The judge set out the mitigating factors that he had taken into account, namely the applicant’s plea of guilty, his remorse, rehabilitation and low risk of re-offending, his age and medical conditions, and the extra-curial punishment involved in the loss of his business. The judge also stated that he had had regard to the principle of totality.[30] The judge then went on to say that the Court of Appeal had ‘made clear time and again that offending against children, even from many years ago, can only be met by substantial and significant terms of imprisonment’.[31]
[30]Reasons [60].
[31]Reasons [61].
The applicant was sentenced as set out above. He was sentenced as a serious sexual offender on charges 3 and 4 pursuant to s 6 of the Sentencing Act 1991.[32]
[32]Reasons [66].
The application for leave to appeal
The applicant seeks leave to appeal against his sentence on the sole ground of manifest excess. That ground of appeal was formulated as follows:
The individual sentences, orders for cumulation, total effective sentence and non-parole period are manifestly excessive, having regard to the five-year maximum penalty for the relevant offence and the significant factors in mitigation, including the applicant’s early pleas of guilty, remorse, complete rehabilitation, advanced age and ill health, as well as the additional punishment he has suffered as a result of being charged with these offences.
The applicant noted that the sentences imposed in respect of charges 1 and 2 were each 80 per cent of the 5 year maximum penalty prescribed by the relevant offence provision as in force at the time of the offending. The sentences imposed in respect of charges 3 and 4 were, respectively, 40 per cent and 25 per cent of the maximum penalty.
The applicant observed that there has been a shift in recent years towards higher maximum penalties for sexual offences against children which reflects the seriousness with which the community now views such offending. It was submitted that judges must not have regard to current maximum penalties when sentencing for historical sexual offending. The 5 year maximum penalty prescribed by the relevant offence provision indicates the seriousness of the offences at the time they were committed.
The applicant submitted that sentences imposed by the judge were outside the range of sentences reasonably open to him in the proper exercise of the sentencing discretion. In that regard, the applicant referred to the ‘low’ 5 year maximum penalty, the judge’s finding that there was no need to have regard to specific deterrence, and the factors in mitigation of sentence which, it was said, were ‘exceptional’ when taken together.
The applicant’s early guilty pleas were said to carry utilitarian value and constitute evidence of remorse. The guilty pleas were said to be particularly significant in circumstances where the applicant had no memory of the offending and could have sought a permanent stay of the proceeding on the basis of the delay in complaint. It was also submitted that there were significant issues of credibility in relation to some of the complainants which, if tested at trial, may have given the applicant a chance at acquittal. The applicant referred to Dr MacKenzie’s report as providing further evidence of his remorse.
The applicant submitted that his own experience of sexual abuse as a child reduced his moral culpability. In that regard, the applicant cited a passage from Dr MacKenzie’s report in which she stated that:
[The applicant’s] own experience would have undoubtedly been an important factor in his offending when he was older, in that he would not have been of the opinion that he was harming the boys.
The applicant referred also to his good character and rehabilitation, as evidenced by the fact that he had led a blameless life for the 38 years between the last offence and his sentence and had ceased drinking alcohol, which had been posited as a contributing factor to the offending. Although the applicant was to be sentenced as a serious sexual offender on charges 3 and 4, it was said that the provisions had no practical application because the prosecution had not sought a disproportionate sentence and the judge had found that there was no prospect of the applicant re-offending.
Finally, the applicant referred to his age, ill health and the additional punishment he had suffered on account of losing his firearms licences and his business and being unable to participate in the firearms organisations in which he had been active for many years.
The applicant submitted that the total effective sentence offended the principle of totality. This argument was advanced in support of the ground of manifest excess, rather than as a discrete allegation of specific error. The applicant acknowledged that some degree of cumulation was warranted given there were four separate victims, but submitted that the judge had misapplied the totality principle by failing to order a considerable degree of concurrency.
It was also submitted that the individual sentences were disproportionate. The applicant referred in that regard to the sentences imposed on charges 3 and 4, which both related to the fondling of the victims’ genitals over clothing. It was submitted that, had the applicant been sentenced only in respect of these two charges, he would not have been sentenced to a term of imprisonment.
The respondent sought to defend the sentence, and its constituent parts, largely by reference to the gravity of the offending. The submission focused on the nature of the offending, particularly in relation to charges 1 and 2, involving as they did oral sex on young boys perpetrated on multiple occasions over many months. However, the respondent submitted that all of the charges involved grave conduct in circumstances where the applicant was in a position of trust and had isolated the victims at the time of the offending. This included taking the victims to his holiday house, inducing them by allowing them to play with firearms and, in some cases, providing them with alcohol.
Consideration
The fact that the applicant fell to be sentenced decades after the offending raises a number of important issues.
First, it is significant that the applicant was charged with four counts of indecent assault for which the maximum sentence on each charge was 5 years’ imprisonment. The maximum sentence prescribed by the Parliament is an important yardstick in the fixing of sentence.[33] The relevant yardstick is not that currently prescribed for similar conduct, but that in force at the time of the offending.
[33]Markarian v The Queen (2005) 228 CLR 357, 372 [30]–[31] (Gleeson CJ, Gummow, Hayne and Callinan JJ); Elias v The Queen (2013) 248 CLR 483, 494–5 [27].
The offence of indecent assault comprehended a very wide range of conduct which, as the present indictment demonstrates, included sexual penetration other than penile penetration. Offending that would currently be regarded as very grave and warranting a substantial period of imprisonment was therefore subject to a maximum sentence of 5 years’ imprisonment.
Second, s 5(2)(b) of the Sentencing Act obliges the court in passing sentence to have regard to current sentencing practices. The relevant practices are those that are currently applied rather than those applied by the courts at the time of the offending.[34] However, the operation of s 5(2)(b) requires some qualification in the present context. Current sentencing practices are not determinative and do not cap and collar the appropriate sentencing range.[35] In many respects, current sentencing practices for the conduct caught by charges 1 and 2 arise in a different statutory setting, with offences of sexual penetration now attracting maximum sentences of up to 25 years’ imprisonment for sexual penetration of a child under 12 years,[36] 15 years for sexual penetration of a child under 16 years,[37] and 10 years for sexual assault of a child under 16 years.[38]
[34]Stalio v The Queen (2012) 46 VR 426 (‘Stalio’).
[35]DPP v Dalgliesh (a pseudonym) (2017) 91 ALJR 1063, 1067 [9] (Kiefel CJ, Bell and Keane JJ), 1077–8 [82]–[83] (Gageler and Gordon JJ).
[36]Crimes Act 1958 s 49A.
[37]Ibid s 49B.
[38]Ibid s 49D.
The Court can, and should, take into account sentencing practices at the time the offence was committed as one of the factors in the sentencing synthesis because those sentencing practices are relevant to arriving at a sentence which is just in all the circumstances.[39] We note that neither party sought to put material before the judge, or before us, concerning sentencing practices in the late 1970s and early 1980s for the offence of indecent assault.[40] We do not suggest, however, that such material would have been helpful bearing in mind the limitations in the use of comparative sentencing practice, as noted above. The respondent did refer to cases involving historical sexual offences, including Stalio v The Queen,[41] Director of Public Prosecutions v Toomey,[42] Morris v The Queen[43] and TRG v The Queen,[44] to which we have had regard.
[39]Stalio (2012) 46 VR 426, 440–1 [52]–[54]; Carter (a pseudonym) v The Queen [2018] VSCA 88 [53]–[55].
[40]See PWB v The Queen (2011) 216 A Crim R 305.
[41](2012) 46 VR 426.
[42][2006] VSCA 90 (‘Toomey’).
[43][2016] VSCA 331.
[44][2011] VSCA 337.
It is possible to discern from current sentencing practices for child sex offences that there is now a much greater understanding of the impact that offending of this kind has on child victims. In approaching the sentencing task, the court may bring to bear its present understanding of the devastating impact that offending of this kind has even though such an understanding may not have been a feature of sentences imposed at the time the relevant offending occurred.
Third, the delay between the offending and the sentence and the advanced age of the applicant at the time of sentence were important aspects in the plea. We have already observed that the maximum penalty for each charge was fixed at 5 years. Further, by reason of the delay, the sentencing judge has a much longer time period in which to view the conduct of the offender since the offending. Rehabilitation is not simply an issue in prospect but can be measured by the conduct of the offender in the intervening years.
Of course, the delay in charging and prosecuting the applicant did confer on him the benefit that his offending was concealed for many years. He did not suffer the opprobrium associated with being a convicted child sex offender which would have afflicted most of his adult life had he been brought to justice promptly and he deferred receiving just punishment for his serious criminal conduct.
It is now well understood that there are many reasons why a victim of sexual abuse, particular a child victim, may not complain about the offending until many years later. Indeed, it is an insidious part of child sex offending that the victim will be vulnerable and the disparity in power between the offender and victim means that the victim may not be able to bring forward his or her complaint.
It is important to observe that charges 1 and 2 were course of conduct charges. Section 13 of the Crimes Amendment (Sexual Offences and Other Matters) Act2014 inserted a new cl 4A in Sch 1 to the Criminal Procedure Act 2009 with effect from 1 July 2015. The new cl 4A provides for a ‘course of conduct’ charge. It defines such a charge as ‘a charge for a relevant offence that involves more than one incident of the offence’ and defines ‘relevant offence’ as including offences of the kind with which the applicant was charged. By s 445 of the Criminal Procedure Act, a person may be charged with a course of conduct charge irrespective of when the incidents of the commission of the offence are alleged to have taken place.[45] Both parties agreed that the course of conduct provisions were applicable in relation to the present charges.
[45]See Harlow (a pseudonym) v The Queen [2018] VSCA 234 [54] (Beach and Weinberg JJA); see also R v RS [2016] VCC 1464.
Course of conduct charges permit the charging of more than one incident of an offence in circumstances where it might be difficult for a complainant to distinguish one act of abuse from another, given the repeated nature of the offending. The provisions relax the degree of specificity required in respect of charges laid for single incident offences and were enacted to address the particular difficulty for a child victim of repeated sexual offences to remember, and to be able to particularise, the dates or exact circumstances involved.[46]
[46]See Explanatory Memorandum, Crimes Amendment (Sexual Offences and Other Matters) Bill 2014 (Vic) 25; Victoria, Parliamentary Debates, Legislative Assembly, 21 August 2014, 2934 (Robert Clark, Attorney-General).
Section 5(2F) of the Sentencing Act provides in respect of course of conduct charges that a court must impose a sentence that reflects the totality of the offending that constitutes the course of conduct and must not impose a sentence that exceeds the maximum penalty prescribed for the offence if charged as a single offence. Even though charges 1 and 2 are course of conduct charges, orthodox sentencing principles nevertheless apply. Relevantly for present purposes, the maximum sentence on a single charge remains a yardstick by which the gravity of the offending is to be assessed even though there may be multiple acts which comprise the course of conduct.[47]
[47]Poursanidis v The Queen (2016) 50 VR 681, 683 [11] (Weinberg JA).
Charge 4 was a representative charge. The fact that a charge is representative has two points of significance. First, it prevents the offender from relying on the mitigating factor that the offence was an isolated event. Second, the sentencing court
must look at the conduct represented by the charge in order to judge the offending in its full context.[48]
[48]DPP v Walsh [2018] VSCA 172 [19] (Maxwell P and McLeish JA). See also DPP v McMaster (2008) 19 VR 191, 202 [49] (Ashley JA); DPP v EB (2008) 186 A Crim R 314, 318 [15] (Nettle JA); DPP v CPD (2009) 22 VR 533, 542–3 [37]–[39]; Reid (a pseudonym) v The Queen (2014) 42 VR 295, 307–8 [73]–[75] (Priest JA).
The fact that a charge is a representative charge may mean that the gravity of the offending is greater once the full context of the offending is taken into account. Sentences on representative charges are, other things being equal, liable to be higher than those imposed on non-representative charges notwithstanding that there remains a single charge on the indictment attracting the same maximum penalty.
The judge, in his careful reasons for sentence, correctly described the offences as ‘grave examples … of such offending’.[49] The applicant’s offending spanned a period of nine years, was perpetrated against four separate child victims, and involved a breach of the trust reposed in him by those victims and, in some cases, by their parents. The victims were in the applicant’s care when they worked with him in the butcher shop or were alone with him at his holiday house or in his car. The applicant breached their trust and exploited their vulnerability for his own sexual gratification.
[49]Reasons [51].
That said, having regard to the maximum penalty that was available at the time, the applicant’s plea of guilty, the extent of his remorse, his very low risk of re-offending and his age, we are satisfied that the sentence imposed fell outside the range of sentences reasonably open in the circumstances.
In reaching that conclusion, we are mindful of the stringency with which this Court must approach a ground of appeal alleging manifest excess in sentence. It is insufficient for an applicant relying on that ground to persuade the appeal court that it would have imposed a lesser sentence. It must be demonstrated that the sentence imposed falls wholly outside the permissible range of sentences.[50]
[50]Hanks v The Queen [2011] VSCA 7 [22] (Bongiorno JA, with whom Redlich JA agreed). See also Clarkson v The Queen (2011) 32 VR 361, 384 [89].
In this case, the applicant has discharged that heavy burden.
The relatively low (by present standards) maximum penalty and the broad range of conduct that could be caught under the rubric of indecent assault necessarily means that there will be a degree of compression in the range of available sentences. For that reason, the sentence imposed on each charge cannot be assessed simply as a proportion of the maximum penalty.
That said, it is an exceptional case in which a sentence of 80 per cent of the maximum penalty could be imposed on a plea of guilty in circumstances where there is strong evidence of remorse and little need for specific deterrence. We are not aware of any sentence of 20 years’ imprisonment for the offence of sexual penetration of a child under 12 years for which the maximum penalty is 25 years’ imprisonment. Indeed, the respondent was unable to identify any case where a sentence of 80 per cent of the maximum was imposed in respect of a sexual offence charge.
In relation to charge 3, which was a single non-representative charge involving fondling of the victim’s genitals on the outside of his underpants, a sentence of 2 years’ imprisonment was disproportionate having regard to the gravity of that particular offending and the strong mitigating factors.
A significant reduction in the sentence should be accorded on account of the applicant’s guilty plea, both for its clear utilitarian value and as evidence of his remorse. In the applicant’s account to the clinical psychologist, Dr MacKenzie, he said he had no memory of the offending but considered that ‘it must have happened as [the complainants] wouldn’t lie’.
In assessing the utilitarian value of the plea of guilty, we would not attach any significant weight to the submission that the applicant may have been able to stay the proceeding. The fact is that the applicant pleaded guilty, and the primary utilitarian value of that plea is that the applicant spared the community the expense of a trial and the victims the ordeal of having to give evidence.
It is also relevant that there had been no offending, and indeed evidence of positive good character, since the last offence in 1980. That long period without offending provided a strong foundation for a favourable conclusion as to rehabilitation and risk of recidivism. In part, the explanation for the applicant desisting from further criminal conduct may be found in the reduction in his alcohol intake which was associated with a medical diagnosis of hypertension in around 1980.
It is important that the factors particular to the offender, the antiquity of the offences, and the effluxion of time since the last offence do not result in a sentence that devalues the gravity of the offending.[51] In that respect, the respondent pointed to the decision of this Court in Toomey.[52]That matter concerned a cleric who sexually abused 10 pupils in the school at which he was teaching. The applicant was a Christian Brother and the offending involved fondling the penis or rubbing the thighs and buttocks of each of the victims during class. Vincent JA referred to the enormous harm that offending of this kind engenders and the lifelong feelings of embarrassment, shame and guilt that are often induced by the behaviour of the perpetrator. His Honour noted that it was a function of the offending that the offences will often not be exposed until long afterwards and those factors mean that general deterrence must assume very considerable significance as a sentencing consideration.[53]
[51]Toomey [2006] VSCA 90 [14] (Buchanan JA).
[52][2006] VSCA 90.
[53]Ibid [17].
Vincent JA’s observations concerning the impact of sexual offending on child victims are apposite in the present case and are confirmed by the victim impact statements of AB, CD and EF in which they detailed the long-term emotional and social impact of the offending. For the reasons given by his Honour, the need for general deterrence and denunciation remain very important sentencing objectives even though the offending took place long ago.[54] The respondent was correct to point to the gravity of the offending which, particularly in relation to charges 1 and 2, was high and called for strong denunciation. There is no doubt that, in particular, charges 1 and 2 were appalling offences and had many features that aggravated the offending including the isolation of the young boy, the use of inducements, and the relationship of trust that the applicant had through the employment relationship and through his association with the victims’ families.
[54]See TRG v The Queen [2011] VSCA 337 [51]–[52] (Weinberg JA).
Nevertheless, the sentence imposed must reflect all of the circumstances, including the yardstick set by the maximum prescribed sentence and matters personal to the applicant. In our view, having regard to all of those factors, error on the part of the sentencing judge can be inferred. The sentences imposed were, in our view, wholly outside the permissible range of sentences, notwithstanding the seriousness of the offending.
We would grant leave to appeal, allow the appeal, and set aside the sentence. It is thus necessary for this Court to resentence the applicant. In approaching that task, we take into account the grave nature of the offending. We have also had regard to the matters advanced in mitigation.
In the event, which has now transpired, that it became necessary for this Court to embark on the resentencing exercise, the applicant relied on an affidavit sworn by him on 14 November 2018. In that affidavit, he deposes that shortly after his incarceration he was severely bashed by another prisoner with whom he was sharing a cell. That assault appeared to be entirely unprovoked and involved the prisoner jumping on the applicant, bashing his head against the wall of the cell, and punching him repeatedly. As a result of the assault, the applicant spent two days in hospital and suffers from nightmares and flashbacks which have made him frightened to walk outside in the prison. In resentencing the applicant, we take into account that assault on the basis that its emotional aftermath means that the applicant’s incarceration has been more onerous. We have given it some weight.
The applicant submitted that a suspended sentence would be an available sentencing option if the total effective sentence is 3 years’ imprisonment or less. It is not necessary to further consider that question because, as will shortly become apparent, the total effective sentence which we would impose is greater than 3 years. In any event, on any view, the offending warranted an immediate term of imprisonment and, in our view, a suspended sentence would not be appropriate in the circumstances.
We would resentence the applicant as follows:
Charge on indictment Offence Sentence Cumulation
1
Indecent assault upon a male person
2 years 6 months
Base
2
Indecent assault upon a male person
2 years 6 months
15 months
3
Indecent assault upon a male person
3 months
1 month
4
Indecent assault upon a male person
6 months
2 months
That results in a total effective sentence of 4 years’ imprisonment. We would set a non-parole period of 2 years.
It will be noted in the records of the Court that, in relation to charges 3 and 4, the applicant has been sentenced as a serious sexual offender. In accordance with s 6D of the Sentencing Act, we have had regard to the protection of the community from the applicant as the principal purpose of sentencing him but have not imposed a disproportionate sentence. We have ‘otherwise directed’ for the purposes of s 6E of that Act, that is, we have not directed that the entirety of the sentences for charges 3 and 4 be served cumulatively.
Pursuant to s 6AAA of the Sentencing Act, a declaration will be made that, but for the applicant’s plea of guilty, we would have sentenced him to a total effective sentence of 6 years’ imprisonment with a non-parole period of 4 years.
A declaration will also be made that the applicant must continue to comply with the reporting obligations imposed by pt 3 of the Sex Offenders Registration Act 2004.
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