Brooks (a pseudonym) v The King
[2023] VSCA 4
•3 February 2023
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2021 0022 |
| FRANK BROOKS (A PSEUDONYM)[1] | Applicant |
| v | |
| THE KING | 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.
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| JUDGES: | NIALL AND T FORREST JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 18 January 2023 |
| DATE OF JUDGMENT: | 3 February 2023 |
| MEDIUM NEUTRAL CITATION: | [2023] VSCA 4 |
| JUDGMENT APPEALED FROM: | DPP v [Brooks] (County Court of Victoria, Judge Mullaly, 24 November 2020) |
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CRIMINAL LAW – Appeal – Sentence – Indecent assault upon a female – Carnal knowledge of a girl between 10 and 16 – Historical offences committed against niece – Whether sentencing judge failed to give adequate weight to applicant’s ill health – Whether sentencing judge failed to give adequate weight to the impact of the COVID-19 pandemic on the applicant given risk factors – Whether sentencing judge failed to give adequate weight to limbs 5 and 6 of Verdins – Whether individual sentences, total effective sentence, non-parole period and orders for cumulation manifestly excessive – Applicant’s moral culpability high – Applicant’s age and ill health not undervalued by sentencing judge – No error found in sentences or reasons – Leave to appeal refused.
R v Verdins; R v Buckley (2007) 16 VR 269; [2007] VSCA 102; Bell v The Queen (2016) 77 MVR 336; [2016] VSCA 203 and Binse v The Queen [2016] VSCA 145 referred to.
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| Counsel | |||
| Applicant: | Mr C K Wareham | ||
| Respondent: | Ms R Harper with Ms R Barrett | ||
Solicitors | |||
| Applicant: | Adrian Paull Criminal Lawyers | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
NIALL JA
T FORREST JA:
The applicant, now aged 75 years, pleaded guilty in the County Court to two charges of indecent assault and three charges of carnal knowledge of a girl aged between 10 and 16. The offending occurred between 1975 and 1978 when the complainant was aged between 12 and 15. During these years the applicant was aged between 27 and 30. The complainant was the applicant’s niece by marriage.
On 24 November 2020 the applicant was sentenced as follows:
| Charge | Offence | Max Penalty | Sentence | Cumulation |
| 1 | Indecent Assault Upon a Female [Section 55 of the Crimes Act 1958, as amended by the Crimes (Amendment) Act 1967]. | 5 years imprisonment | 1 year imprisonment | No |
| 2 | Indecent Assault Upon a Female. | 10 years imprisonment[2] | 2 years imprisonment | 6 months |
| 3 | Carnal knowledge of a girl between 10 and 16 [Section 48(1) of the Crimes Act 1958]. | 10 years imprisonment | 4 years imprisonment | 1 year |
| 4 | Carnal knowledge of a girl between 10 and 16. | 10 years imprisonment | 5 years and 6 months imprisonment | Base |
| 5 | Carnal knowledge of a girl between 10 and 16. | 10 years imprisonment | 4 years imprisonment | 1 year |
| Total Effective Sentence: | 8 years imprisonment | |||
| Non-Parole Period: | 5 years and 9 months imprisonment | |||
| Pre-sentence Detention Declared pursuant to s 18(1) of the Sentencing Act 1991: | Nil. | |||
| Section 6AAA Statement: | 10 years 6 months imprisonment with a non-parole period of 8 years imprisonment | |||
| Other Orders: Life reporting under s 34 of the Sex Offender Registration Act 2004; sentenced as a Serious Sexual Offender in respect of charges 3, 4 and 5. | ||||
[2]The maximum penalty for a second or subsequent offence of Indecent Assault was 10 years.
Charges 1, 2 and 4 were ‘rolled up’ and thus involved multiple examples of the relevant offending.
Summary of Offending
A comprehensive summary of the prosecution’s opening was tendered at the plea hearing. Its contents were accepted by the applicant. We shall reproduce its relevant content:
First Incident
[3] On a date between 16 May and 2 August 1975, during the school holidays before the [complainant’s] 13th birthday, the [complainant] was staying at the [applicant’s] house in Geelong West. That evening, after [another person] and the [applicant’s] wife had gone to bed, the [complainant] and the [applicant] were alone in the loungeroom, sitting on the couch next to one another.
[4] The [applicant] told the [complainant] he would rub her back. He put his left hand up the back of the [complainant’s] shirt and rubbed her back for a few minutes, before moving his hand around to the front of the [complainant’s] chest and touching her on the left side of her breast. The [complainant] was 12 or 13 years old at the time and was not wearing a bra (Charge 1: s 55 Indecent Assault Upon a Female – First Offence).
[5] The [complainant] was surprised and jumped up from the couch. She told the [applicant] she was going to bed and went to [another person’s] bedroom. She felt uneasy and a little scared.
[6] In 1976 the [applicant] and his wife moved to a house in Corio. The [applicant’s] wife had a new baby, and the [complainant] was at the house more frequently to assist with babysitting and housework.
[7] After moving to the Corio house, the [applicant] began to touch the [complainant] more frequently, both rubbing her back and touching her breast under her shirt.
Second Incident
[8] On a date in 1976, when the [complainant] was 13 or 14 years old, the [complainant] was at the [applicant’s] house in Corio. The [complainant] and the [applicant] were alone, sitting together on the couch. The [complainant] was wearing 70’s style loose fitting pants.
[9] The [applicant] undid the zipper on the [complainant’s] pants and put his hand inside the [complainant’s] pants. The [complainant] pushed the [applicant’s] hand away a number of times, however the [applicant] persisted and managed to put his hand inside the [complainant’s] pants, under her underwear, and penetrated her vagina with his fingers (Charge 2: s 55 Indecent Assault Upon a Female – First Offence).
Third Incident
[10] On a night in 1976, when the [complainant] was 13 or 14 years old, the [complainant] was staying at the [applicant’s] house in Corio. That evening after the [applicant’s] wife had gone to bed, the [complainant] and the [applicant] were alone, sitting together on the couch watching television.
[11] The [applicant] grabbed the [complainant’s] arm and pulled her on top of him, so that she was straddling his waist facing him. The [applicant] began kissing the [complainant] on her mouth and put his hands under the [complainant’s] shirt and touched her breasts (Charge 1: s 55 Indecent Assault Upon a Female – Second Offence). The [complainant] was not wearing a bra.
[12] The [applicant] unzipped the [complainant’s] pants and pulled them down, before unzipping his own pants and exposing his penis. The [applicant] rubbed his penis against the [complainant’s] vagina (Charge 1: s 55 Indecent Assault Upon a Female – Third Offence). The [complainant] was frightened and told the [applicant] “no” and said that she wanted to go home, before getting off the [applicant].
[13] The [applicant] told the [complainant] that he would drive her home. The [complainant] and the [applicant] walked outside and got into the [applicant’s] car, which was parked at the house. The car had one long “bench” across the front seat, rather than individual seats. The [complainant] sat next to the [applicant] on the passenger side of the bench.
[14] The [applicant] began driving the [complainant] home, however at a roundabout he turned in the direction of the Norlane rubbish tip. The [complainant] was frightened and anxious about what the [applicant] might do. The [applicant] stopped the car just before the entrance to the tip.
[15] After he stopped the car, the [applicant] moved across the front seat towards the [complainant] and touched the [complainant’s] breasts with his hands (Charge 1: s 55 Indecent Assault Upon a Female – Fourth Offence). The [complainant] was not wearing a bra. The [applicant] then put [one] of his hands down the [complainant’s] pants and penetrated her vagina with his fingers (Charge 2: s 55 Indecent Assault Upon a Female – Second Offence). While he did this, the [applicant] told the [complainant] that he will take his time, even if it takes two hours, and that he would be gentle. The [complainant] said no, and repeated that she wanted to go home. She was frightened because she was alone with the [applicant] and aware that there weren’t any houses or people [in] the area.
[16] The [applicant] undid the [complainant’s] pants and pulled her body down, so that she was laying across the front seat on her back. The [applicant] pulled the [complainant’s] pants down to around her knees and bent her legs up using his hands. He then undid his own pants and penetrated the [complainant’s] vagina with his penis (Charge 3: s 48(1) Carnal Knowledge of a Girl Aged Between 10 and 16 years). As soon as the [applicant] pushed his penis into the [complainant’s] vagina, she felt a burning pain and told the [applicant] to stop. The [applicant] replied “It can’t hurt that bad” and continued to penetrate her vagina with his penis for a number of minutes until he ejaculated inside her vagina.
[17] After he had ejaculated, the [applicant] got off the [complainant], pulled his pants up and drove her to her home in Geelong West, where he dropped her off and left without saying anything. The [complainant] was still in pain and immediately went to the outdoor toilet, where she observed blood in her underpants.
[18] In 1976 or 1977, the [applicant] and his wife began managing the Criterion Hotel in Geelong, which they did for a period of approximately six months. During this time, they rented out the Corio house and lived in accommodation at the hotel. The [applicant] and his wife moved back to the house in Corio after they finished their contract at the hotel.
Fourth Incident
[19] On a date between 1 January 1976 and 2 August 1977, when the [complainant] was 13 or 14 years old, the [complainant] was at the Criterion Hotel. The [applicant’s] wife had left the hotel to go somewhere with his parents, leaving the [complainant] and the [applicant] alone together. The [applicant] took the [complainant] upstairs to one of the accommodation rooms in the hotel, which had a bed and other amenities. Once in the room, the [applicant] produced a dark coloured alcohol, and both he and the [complainant] drank a couple of glasses.
[20] The [applicant] took the [complainant’s] clothing off, until she was almost naked. The [complainant] was still not wearing a bra at this age. The [applicant] took his own pants off and they both got on top of the bed. The [applicant] touched the [complainant’s] breasts with his hands, before moving his hands to her vagina and penetrating her vagina with his fingers (Charge 2: s 55 Indecent Assault Upon a Female – Third Offence).
[21] The [applicant] then got on top of the [complainant] and penetrated her vagina with his penis (Charge 4: s 48(1) Carnal Knowledge of a Girl Aged Between 10 and 16 years – First Offence). As soon as his penis entered her vagina, the [complainant] felt a burning pain in her vagina. The [applicant] penetrated her vagina with his penis for about 5 minutes until he ejaculated inside her.
[22] As soon as the [applicant] ejaculated, the [complainant] felt sick and got out of bed to go to the bathroom, however she vomited on the floor before making it to the toilet. The [applicant] cleaned up the [complainant’s] vomit.
Fifth Incident
[23] On a day between 1 January 1976 and 2 August 1977, when the [complainant] was 13 or 14 years old, the [applicant] and the [complainant] went for a drive in the [applicant’s] car in the middle of the day. The [applicant] drove the [complainant] along Plantation Road in Corio, before turning down a dirt road between open paddocks. After driving for a time, the [applicant] stopped the car on the side of the dirt road. The [complainant] was shaking and in fear of what the [applicant] was about to do to her.
[24] The [applicant] touched the [complainant’s] breasts with his hands, before he undid her pants and pulled her pants down to about her knees. The [complainant] knew what was about to happen and told the [applicant] that she had her period and was using a tampon. The [applicant] removed the [complainant’s] tampon from her vagina, then undid his own pants, [pulled] them down to his knees and penetrated the [complainant’s] vagina with his penis for several minutes until he ejaculated inside of her (Charge 4: s 48(1) Carnal Knowledge of a Girl Aged Between 10 and 16 years – Second Offence). During the penetration, the [complainant] was in pain and felt very uncomfortable. After the offending, the [applicant] drove the [complainant] back to his house at Corio.
Sixth Incident
[25] In 1977, the [applicant] worked as a delivery driver, delivering doughnuts and bakery items to various places in Melbourne using a small truck.
[26] On a night between 1 January and 2 August 1977, when the [complainant] was 14 years old, the [applicant] asked the [complainant] to accompany him on his nightly delivery round. The [complainant] went with the [applicant] and, after the deliveries were finished in the morning, the [applicant] pulled the truck over to the side of the road.
[27] The [complainant] was sitting in the passenger seat next to the [applicant] in the front cabin of the truck. The [applicant] moved over towards the [complainant] and touched her breasts. He then unzipped the [complainant’s] pants and pulled them down to her knees, before grabbing her arm and pulling her on top of him, so that the [complainant] was sitting on the [applicant’s] lap. The [applicant] pulled his own pants down, and then penetrated her vagina with his penis for about 5 minutes until he ejaculated inside her (Charge 4: s 48(1) Carnal Knowledge of a Girl Aged Between 10 and 16 years – Third Offence). After the [applicant] ejaculated, there was nothing for the [complainant] to clean herself with, so she simply pulled her pants back on.
[28] Shortly after the offending, the [applicant] stopped at a pub. When the [complainant] exited the car and stood up, she felt a coldness in her pants from the [applicant’s] ejaculate leaking out of her vagina. The [applicant] told her not to worry and that no one would notice. While the [applicant] had a drink inside the pub, the [complainant] went to the bathroom and cleaned herself.
Seventh Incident
[29] On a date between 1 January and 2 August 1977, when the [complainant] was 14 years old, the [complainant] and the [applicant] were alone at the [applicant’s] house in Corio. The [applicant] took the [complainant] to the bedroom he shared with his wife. The [applicant] removed the [complainant’s] clothing so that she was completely naked, before removing his own clothing and getting into the bed. The [complainant] was trembling and scared. The [applicant] told the [complainant] to get into the bed with him, which she did.
[30] The [applicant] touched the [complainant’s] breasts with his hands. He then touched the [complainant’s] vagina and penetrated her vagina with his fingers (Charge 2: s 55 Indecent Assault Upon a Female – Fourth Offence). The [applicant] then got on top of the [complainant] and penetrated her vagina with his penis until he ejaculated inside her (Charge 4: s 48(1) Carnal Knowledge of a Girl Aged Between 10 and 16 years – Fourth Offence).
Eighth Incident
[31] On an evening between 1 January and 2 August 1977, when the [complainant] was 14 years old, the [complainant] was at the [applicant’s] house in Corio. After the [applicant’s] wife went to bed, the [applicant] and the [complainant] were in the loungeroom watching television – the [applicant] was on the couch and the [complainant] was on a separate lounge chair. Also in the loungeroom was a male friend of the [applicant’s], who was asleep on a mattress on the floor.
[32] The [applicant] moved over where the [complainant] was sitting and began kissing her on the lips, before putting his hands under her top and touching her breasts. The [complainant] told the [applicant] “no” and said [s]he didn’t want to do anything because the [applicant’s] friend was in the room. The [applicant] told her his friend was hard of hearing and wouldn’t wake up.
[33] The [applicant] unzipped the [complainant’s] pants and pulled then down a bit, while also pulling her forward on the chair. The [applicant] then pulled his own pants down a little bit, got onto his knees and penetrated the [complainant’s] vagina with his penis until he ejaculated inside her (Charge 4: s 48(1) Carnal Knowledge of a Girl Aged Between 10 and 16 years – Fifth Offence). The [complainant] recalls this being the most frightening occasion, as she was concerned the [applicant’s] friend would wake up or his wife would come in and catch them.
[34] After the [applicant] ejaculated, the [complainant] went to the toilet and went to bed.
Ninth Incident
[35] On a day between 1 July and 2 August 1977, when the [complainant] was 14 years old, the [complainant] was at the [applicant’s] house in Corio. The [complainant’s] grandmother and the [applicant’s] wife left the house to go somewhere, leaving the [complainant] alone with the [applicant].
[36] The [applicant] took the [complainant] to [another] bedroom. The [applicant] began touching the [complainant’s] breasts with his hands. He then removed her pants and underwear and lay her down on her back on [the] bed. The [applicant] took his own pants off, lay on top of the [complainant] and penetrated her vagina with his penis until he ejaculated inside her (Charge 4: s 48(1) Carnal Knowledge of a Girl Aged Between 10 and 16 years – Sixth Offence).
[37] Shortly after the [applicant] ejaculated, the [applicant’s] wife and the [complainant’s] grandmother returned to the house. To avoid being seen, the [applicant] took the fly wire off the bedroom window and lowered the [complainant] out of the bedroom window.
[38] As a result of the offending on this occasion, the [complainant] became pregnant with the [applicant’s] child. The [complainant] was induced and gave birth to [her son] on 11 June 1978, when she was 15 years old. Subsequent DNA analysis confirms that the [applicant] is [her son’s] father.
[39] The [complainant] did not tell her family that the [applicant] was the baby’s father.
[40] Shortly after the ninth incident, the [complainant’s] grandmother moved into the Corio house with the [applicant] and his wife, and the offending against the [complainant] stopped for a time.
[41] Some time after [the applicant and complainant’s son] was born on 11 June 1978, the [applicant] separated from his wife, and was living alone in a flat in Norlane West.
Tenth Incident
[42] On a day between 1 July and 2 August 1978, when the [complainant] was 15 years old, the [complainant’s] mother held a party at the home she shared with the [complainant], and the [applicant] attended this party. After the party had ended, the [complainant] was in her bedroom and the [applicant] knocked on her bedroom window. The [applicant] asked the [complainant] to come to his flat – when the [complainant] said no, the [applicant] told “If you don’t, I’ll tell everybody what we’ve been doing.” The [complainant] felt she had to go the [applicant’s] flat, as the news would be devastating for her mother and the [applicant’s] wife.
[43] The [complainant] left her son asleep in her room and rode her bike to the [applicant’s] house. When she arrived, she didn’t say much to the [applicant] as she was scared about what was about to happen. The [complainant] and the [applicant] got into the [applicant’s] bed, the [applicant] lay on top of the [complainant] and penetrated her vagina with his penis. They changed positions at one point so both the [applicant] and the [complainant] were sitting up facing one another, before the [applicant] again lay on top of the [complainant] and penetrated her vagina until he ejaculated inside her (Charge 5: s 48(1) Carnal Knowledge of a Girl Aged Between 10 and 16 years).
[44] After the offending, the [complainant] left straight away and rode her bike home, as she was worried about her son waking.
Circumstances after the [complainant] turned 16 years old
[45] After the [complainant] turned 16 years of age, there was one further occasion of penile-vaginal penetration with the [applicant]. After this, the offending stopped and the [applicant] resumed his relationship with his wife.
It follows from the above that charges 1 and 2 each involved four separate examples of indecent assault, charge 3 involved a single example of carnal knowledge of a girl between 10 and 16 and charge 4 involved no less than six examples of that offence. All carnal knowledge offences were committed without the use of a condom.
The applicant seeks leave to appeal on the following grounds:
(1)The learned sentencing judge erred in failing to take into account and/or give adequate weight to the ill health of the applicant.
Particulars
(a)The applicant had been diagnosed with 2 types of cancers in 2018 that required constant monitoring. He also suffered from a range of chronic health conditions and depression.
(b)While the learned sentencing judge referred to the applicant’s ill health as relevant to sentencing, he did not consider that it was ‘at a level that provides significant mitigation.’
(c)The learned sentencing judge erred in failing to take into account that prison would be more burdensome for the applicant because of his ill health and/or failed to give this consideration adequate weight.
(2)The learned sentencing judge failed to take into account and/or give sufficient weight to the effect of Covid-19 on the applicant given his particular vulnerabilities and ‘high risk factors’.
Particulars
(a)The applicant was in a ‘high risk’ category in relation to Covid 19 given his advanced age, diagnosis of chronic obstructive pulmonary disease, his previous diagnosis of 3 types of cancer and an IgG deficiency which increased his susceptibility to infection.
(b)The risk factors meant that if the applicant contracted the virus he was at risk of severe illness or potential death.
(c)The learned sentencing judge failed to give this factor sufficient weight in sentencing the applicant.
(3)The learned sentencing judge failed to take into account and/or give sufficient weight to limbs 5 and 6 of Verdins.
Particulars
(a)The applicant had previously been diagnosed and treated for depression.
(b)The medical material before the Court diagnosed symptoms of a major depressive disorder.
(c)His condition would cause imprisonment to be extremely onerous and imprisonment would also likely lead to a deterioration in his mental health.
(d)The learned sentencing judge failed to take this factor into account and/or give it sufficient weight.
(4)The individual sentences imposed, the total effective sentence, non-parole period and/or orders for cumulation are manifestly excessive in that they failed to take into account and/or give adequate weight to a number of mitigating factors put on behalf of the applicant.
Particulars
(a)The sentence imposed is excessive in that the learned sentencing judge failed to take into account and/or give adequate weight to the relevant factors of mitigation in the applicant’s case, including the following:
(i)The offending was over 40 years old and the applicant had not reoffended.
(ii)Early plea of guilty.
(iii)Delay.
(iv)Very good prospects of rehabilitation.
(v)Advanced age of 72 years with significant health issues.
(vi)Symptoms of a major depressive disorder that was likely to deteriorate in custody.
(vii)A number of high-risk factors in relation to Covid 19.
(viii)The maximum penalties that applied to the charges.
The plea hearing
The applicant’s counsel filed comprehensive written submissions. Counsel accepted that the offending was serious. At the commencement of the oral hearing counsel said ‘… probably the most important thing to acknowledge is the seriousness of this offending, and of course the terrible impact that it’s had on the victim and her son …’.
The applicant relied substantially on his age and difficult health as the most important factors in mitigation. At the time of the plea hearing the applicant was 72. He had suffered from three different forms of cancer over the years: Hodgkin’s lymphoma, successfully treated with stem cell replacement therapy in 2006 and currently in remission; left lung cancer, apparently successfully treated in 2018 but subject to six-monthly CT scan reviews which recently had demonstrated a non-specific left lower node; and a tumour on the kidney, surgically removed in 2018 also subject to regular scans, the most recent of which demonstrated a small right renal cyst which also must be regularly monitored. There was no evidence of new malignancy or any metastatic compromise. Dr Gall, a forensic physician, provided a comprehensive medical report and was called to give evidence on the plea. He deposed to the above matters and was cross-examined. The applicant’s current medical condition appeared to be stable but must be carefully monitored.
Dr Gall expressed concern about the capacity of Corrections to provide adequate medical management. This evidence prompted the prosecution to put on evidence on this issue in the form of an affidavit of Ms Jennifer Hosking, Assistant Commissioner of Corrections. In summary this evidence was to the effect that the care that would be provided to the applicant in a custodial setting would be equivalent to that available in the community. It would be provided by prison general practitioners and nurses. Careful regular CT scan monitoring would be undertaken by specialist oncologists at St Vincent’s Hospital.
Beyond the issues of age and health, the applicant also submitted that:
(a)The applicant’s pleas of guilty were significant for their utilitarian benefit, and as a demonstration of some remorse. The plea carried a greater than usual utilitarian benefit; it being entered during the pandemic.
(b)The applicant will find custody, particularly in COVID-19 pandemic times, more burdensome as a consequence of his pre-existing major depressive disorder and anxiety.
(c)General deterrence ought to give some ground to the exercise of mercy given the applicant’s age and ill-health.
(d)The prospects for rehabilitation are excellent.
(e)The delay of more than 40 years is relevant as it demonstrates complete rehabilitation. Thus specific deterrence and community protection are unnecessary.
(f)Sentencing practices at the time of offending are relevant, and the court must remind itself that the offences of indecent assault and carnal knowledge of a child under 16 were part of an obsolete statutory regime with lesser maximum penalties than their modern equivalents.
The prosecution emphasised the gravity of the offending and the consequent need for a sentence to reflect strong denunciation of this offending and the sentencing principle of general deterrence which ought assume significant weight in the sentencing mix.
The prosecution contended that there was no foreseeable impediment to the competent management of the applicant’s medical condition whilst in custody, that the applicant had little insight into the harm caused to the complainant and that, in fact, the offending activity was unwelcome and unwanted as opposed to arising from a ‘mutual sexual attraction’ as maintained by the applicant to his psychologist.
The prosecutor contended that there were several ‘aggravating factors’ including:
(a)The gross breach of trust to the complainant, and to her family.
(b)Much of the offending occurred in the family home where the complainant was entitled to feel safe.
(c)Certain of the offending occurred in the near proximity of the applicant’s wife and a friend of the applicant.
(d)The complainant protested against particular activities and indicated that it was unwelcome.
(e)On one occasion the applicant provided the complainant with alcohol prior to the offending.
(f)The applicant took steps to conceal the offending including making threats to the complainant after the birth of their son.
(g)The applicant did not use condoms and the complainant fell pregnant. He offended further after the birth of their child.
(h)The offending occurred over a period of greater than three years (16 May 1975 to 2 August 1978).
(i)There was a significant age difference and the offending commenced before the complainant’s 13th birthday.
The prosecutor further contended that, although age and ill-health may have some mitigatory effect, just punishment, proportionality and deterrence remained primary sentencing considerations.
The judge’s reasons
The judge began by summarising the facts which constituted the charged offences — facts which are discussed at [4] of these reasons. His Honour then discussed the gravity of the offending and the applicant’s moral culpability. His Honour listed the following eight factors that bore upon the gravity of the offending conduct:
(1)The position of trust that the applicant held in respect of the complainant as understood by the applicant’s wife and the community.
(2)The fact that the complainant fell pregnant at 15 years of age due to the applicant’s abuse.
(3)The applicant’s refusal to heed the complainant’s protests, and the opportunistic nature of the abuse.
(4)The fact that the applicant penetrated the complainant with his penis while she was effectively ‘trapped’ in his car. This occurred after the complaint had been digitally penetrated by the applicant and after she had expressed the desire to go home.
(5)The considerable age difference between the applicant and complainant.
(6)The fact that the abuse lasted over several years and the applicant’s failure to heed the complainant’s multiple requests to stop.
(7)The provision of alcohol to the complainant on one occasion.
(8)The applicant’s continued abuse of the complainant after she had given birth to their son.
The judge stated that the moral culpability of the applicant was high, and that the gravity of the offending conduct was ‘at the higher end of the spectrum of offences of this kind.’ The judge noted that a bond had been imposed after the applicant had been found to have had sex with a 14-year-old girl on two separate occasions in New South Wales when the applicant was 18. The judge observed that while the applicant was young at that time, he was given a chance to reform and should have done so.
His Honour then reviewed the complainant’s personal circumstances, including her reduced educational opportunities and financial hardship. His Honour summarised the complainant’s discussion of the mental and emotional hardship she had suffered following her abuse, and how this affected her relationship with her children and her ability to enjoy romantic relationships. The judge also briefly discussed the Victim Impact Statement of the complainant’s son.
The applicant’s personal circumstances were then reviewed, with the discussion focussing on the health issues that have been referred to at [8]–[9] of these reasons. The judge proceeded to review the parties’ submissions as well as the relevant authorities. The judge focussed on the question of whether the applicant’s health could properly be managed in prison. His Honour cited the approach of Callaway JA in R v Van Boxtel,[3] adopting the South Australian Court of Criminal Appeal’s position in R v Smith[4] as the ‘appropriate and orthodox approach.’ The following passage was quoted:
Generally speaking ill health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his state of health or when there is a serious risk of imprisonment having a gravely adverse effect on the offender’s health.[5]
His Honour cited the following excerpt from Smith that was adopted in Van Boxtel:
The state of health of an offender is always relevant to the consideration of the appropriate sentence for the offender. The courts, however, must be cautious as to the influence which they allow this factor to have upon the sentencing process. Ill health cannot be allowed to become a licence to commit crime, nor can offenders generally expect to escape punishment because of the condition of their health.[6]
[3](2005) 11 VR 258; [2005] VSCA 175 (‘Van Boxtel’).
[4](1987) 44 SASR 587; [1987] SASC 9802 (‘Smith’).
[5]Van Boxtel (2005) 11 VR 258, 267 [29] (Callaway JA); [2005] VSCA 175.
[6]Smith (1987) 44 SASR 587, 589 [4] (King CJ); [1987] SASC 9802.
His Honour concluded that on the evidence he could not accept that the applicant’s cancers or the progress of his illnesses would be worsened by imprisonment. His Honour stated that in his opinion the applicant would be properly treated and cared for in prison.
The judge stated that a long prison sentence would be a hard sentence for a person of the applicant’s age and health, especially due to the effects of the COVID-19 pandemic. The judge listed the applicant’s plea of guilty at a time of suspended jury trials, the applicant’s crime-free life since the offending, and the delay that occurred following the complainant’s report to police as factors in mitigation. However, the judge observed that the applicant had lived a full life since his offending, while the complainant had endured very different post-offending circumstances.
The judge observed that he was guided by the maximum terms for the relevant offences, and the sentences imposed reflected an appropriate present sentence for historical offences. His Honour cited the Court of Appeal decisions of Stalio[7] and Hague[8] as authorities for the proposition that while sentencing practices at the time of offending are relevant, they cannot constrain an appropriate sentence. His Honour further noted that community protection becomes the primary sentencing purpose once the applicant has been imprisoned for the first two offences. His Honour stated that in this case the serious offender provisions of the Sentencing Act 1991 were enlivened, requiring cumulation at the point that the applicant became a serious sexual offender. The judge noted that the applicant’s health brought a particular focus on the tension between Parliament’s intent in passing that legislation and the principle of totality. The judge stated that denunciation of the applicant’s offences carried much weight, and that these considerations must prevail over the rehabilitation of the applicant. The judge then sentenced the applicant as set out in the table at [2] of these reasons.
[7]Stalio v The Queen (2012) 46 VR 426; [2012] VSCA 120.
[8]Hague v The Queen [2019] VSCA 218.
This application
The applicant
In attractively concise submissions counsel for the applicant advised the court that the application was ‘in effect a manifest excess’ application and that grounds 1–3 should be viewed as particulars of the manifest excess ground (ground 4). Thus the applicant did not seek to identify specific error but contended that the total objective sentence imposed, and the individual sentences imposed, were of such a magnitude as to bespeak underlying error.
It was accepted, as it had to be, that the offending was grave and the various aggravating features were readily conceded. Notwithstanding this counsel for the applicant contended that the early plea, the delay (both in complaint, and from arrest to sentence — October 2018 to November 2020), the applicant’s asserted remorse, the impact of COVID-19 on the applicant’s custodial conditions, the enhanced utilitarian benefit that resulted from a plea made during the pandemic and the applicant’s ‘very good’ prospects of rehabilitation were all factors that called for a lenient sentence.
The bulk of the submissions, as in the plea hearing itself, concerned the applicant’s advanced age and indifferent health at the time his plea was entered. Although the applicant’s current health is relevant only in the event that we were to resentence the applicant, it is worth noting that his health remains closely monitored in custody, and is stable. There has been no material change to the applicant’s condition from its presentation at the time of sentence. Counsel also directed us to what was said to be application of Verdins principles 5 and 6.[9] These principles were said to be engaged by a report from forensic psychologist Ms Carla Lechner in which she opined:
Given his age and his health problems, he is likely to find a period of immediate incarceration extremely onerous, particularly in light of the current COVID19 crisis that is causing much concern for elderly persons with frail health. Such an outcome is likely to lead to a further decline in his mood state. He is already suffering symptoms of Major Depressive Disorder (DSM 5) and I have concerns that his depression would deepen if he is imprisoned.
Dr Gall also expressed concerns that the applicant’s depression would likely worsen in custody.
The respondent
[9]The ‘Verdins principles’ are six means by which an impaired mental function can be relevant to sentencing, as described in R v Verdins; R v Buckley (2007) 16 VR 269, 276 [32] (Maxwell P, Buchanan and Vincent JJA); [2007] VSCA 102. Principles 5 and 6 are as follows:
[5] ‘The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.’
[6] ‘Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.’
The respondent contended that the nature of the offending, including its duration, the age difference between the applicant and the complainant, the complainant’s tender age at the commencement of and during the offending period, the applicant’s limited but relevant prior criminal history, the relationship of the applicant to the complainant and the concomitant breach of trust, the resistance of the complainant to several of the applicant’s advances, and the moral suasion accompanying charge 5[10] all contributed to the conclusion that this was grave offending involving high moral culpability.
[10]The threat to disclose to the family ‘what’s [been] going on’ if the complainant declined his invitation for further post-natal sex.
We were reminded that charges 1 and 2 were ‘rolled up’ as was charge 4 which itself involved six separate offences of carnal knowledge of a girl aged between 10 and 16 years and that one of those acts resulted in the pregnancy and subsequent birth of a male infant.
Discussion
This application for leave to appeal must be refused. A contention of manifest excess is to be examined stringently. Unless an applicant can demonstrate that a sentence or sentences, or a total effective sentence, is wholly beyond the range of sentences available in the reasonable exercise of judicial sentencing discretion, the ground is condemned to failure. It is insufficient to establish that the sentence is stern, or greater than this court might impose if it were to sentence the applicant at first instance. It must be apparent that something has plainly gone wrong in the exercise of that discretion.[11]
[11]Bell v The Queen (2016) 77 MVR 336, 344 [41] (Maxwell P, Redlich and McLeish JJA); [2016] VSCA 203; Binse v The Queen [2016] VSCA 145, [57] (Whelan, Beach and McLeish JJA).
In this case we agree with the sentencing judge, and essentially for the reasons he elaborated that this was a ‘particularly grave’ sequence of offending. It is unnecessary to restate all the features of aggravation.[12] It is sufficient to say that the applicant’s sexual exploitation of a young family member was predatory, opportunistic and depraved. We agree with his Honour that the applicant’s moral culpability is ‘very high.’
[12]Set out in these reasons at [15].
Whilst the applicant’s age and precarious health, both physical and mental, were factors to be considered we see no indication in either the transcript of the plea, or the judge’s very careful sentencing reasons, that he undervalued these factors. In particular we agree with the judge’s conclusions on the applicant’s age and health expressed as follows:
[45] In terms of primary health care, that is provided by prison general practitioners and nurses. The evidence is that the health services provided in the prison system is based on the principle of community equivalence, which means a prisoner will be provided with the same quality and standard of healthcare that they would have received in the community through the public health system. In short, the State has a duty of care to ensure that you have what you have in the community now, which is the careful, regular CT scans and reviews of your two cancers provided by the specialists at Barwon Health. What is indicated is that treatment by specialist clinicians at St Vincent's would be just as it would be had you remained at Barwon Health. In addition, you will be treated for any aspect of your health at whatever level is appropriate, including your mental health.
[46] You are of course anxious about your health and more so if you were imprisoned. You have anxiety and depression that has developed over the years. In that sense, I do consider gaol would be more onerous. Your level of anxiety about your health and generally would likely worsen because of incarceration. I will take this into account in the calculation of your sentence.
[47] However, I cannot accept on the evidence that your cancers or the progress of your illnesses will be worsened by imprisonment. While prison will be more burdensome by reason of your anxiety about your physical health, prison will not measurably be more burdensome because at 73, you have two tumours that have been removed by operation over the years and for two years, you have not got worse or there has not been significant spread and you have remained under conservative monitoring ever since. So I again stress your ill health is relevant. It has been factored into my sentencing considerations. But it is not at a level that provides significant mitigation and certainly not to the level that, for these serious crimes, I could accept your counsel's submission and appropriately impose a sentence that was wholly suspended.
[48] In short, you can be properly treated and cared for in prison and I operate on the basis that the State will meet its duty of care owed to you upon you being incarcerated.
[49] Your age and state of health means that any significant term of imprisonment will likely absorb many and perhaps all of your remaining years of your life. Though there is no expressed and definitive prognosis, much less a stated life expectancy, I nonetheless keep well in mind that my sentence may take up much of your life and at very worse, you may die in prison. That is a factor, but as the authorities make clear, I cannot simply impose an inadequate sentence because of the concern that you may become frail or die in prison. You are far from the extreme age of some elderly accused now sentenced by the courts for historic sexual offences. Though, on the other side of the coin, you have the cancers I have spoken about.
[50] So, in a balanced way, I factor in that a long sentence is a hard sentence for a person of your age and state of health. Measured but appropriate mercy still plays a role in sentencing. I add to that the current circumstances of the greater restrictions in prison because of the COVID-19 pandemic. It makes prison more onerous. This is a factor warranting mitigation in sentence. I appreciate that over and above the restrictions, you will be anxious about catching the virus in the confines and generally new circumstances for you of the prison. You are vulnerable in that respect given your age and health.
These considerations were expressed with great particularity and clarity and it is clear that the judge gave them conscientious consideration. It is also clear to us that the judge gave appropriate consideration to all other relevant circumstances and sentencing factors. There is no specific error alleged in the sentencing reasons and we are unable to discern any underlying error from the sentences themselves. We consider them all to be comfortably within range and given the gravity of the offending conduct, by no means towards the top of that range.
We would only add that at the plea hearing the applicant’s then counsel argued for a wholly suspended sentence.[13] Such a submission was entirely unrealistic. Advocates are entitled to canvass all sentencing options open when pleading on behalf of a criminal offender, but for their submissions to carry any force, unrealistic optimism should be avoided. It can cause unnecessary anxiety and disappointment to an accused and his or her family, and may lead to sentencing error that will require correction by this Court — on occasions to an applicant’s ultimate disadvantage.
[13]The offences were committed at a time when this type of disposition was theoretically available.
The application for leave to appeal against sentence will be refused.
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