Browne (a pseudonym) v The Queen
[2015] VSCA 274
•6 October 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2015 0043 | |
| JOHN BROWNE (A PSEUDONYM)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]To ensure that there is no possibility of identification of the victims of the sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.
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JUDGES: | BEACH JA and ROBSON AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 1 September 2015 | |
DATE OF JUDGMENT: | 6 October 2015 | |
MEDIUM NEUTRAL CITATION: | [2015] VSCA 274 | |
JUDGMENT APPEALED FROM: | DPP v [Browne] (Unreported, County Court of Victoria, Judge Stuart, 3 February 2015) | |
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CRIMINAL LAW – Sentence – Application for leave to appeal – 15 charges of indecent assault – Serious offending – Child victims – Total effective sentence of 6 years and 1 month imprisonment with non-parole period of 3 years and 7 months – Whether individual sentences, total effective sentence or non-parole period manifestly excessive – Totality – Delay – Matters in mitigation – Sentences not manifestly excessive – No reasonable prospect that Court of Appeal would reduce total effective sentence – Application for leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr D A Dann | Leanne Warren & Associates |
| For the Crown | Mr D A Trapnell QC | Ms V Anscombe, Acting Solicitor for Public Prosecutions |
BEACH JA:
I have had the advantage of reading in draft form the reasons for judgment of Robson AJA. I agree, largely for the reasons given by his Honour, that the applicant’s application for leave to appeal against sentence should be refused.
The applicant was sentenced in respect of 15 charges of indecent assault (one charge of unlawful indecent assault of a girl, four charges of indecent assault of a male person and 10 charges of indecent assault). He was sentenced to a total effective sentence of six years and one month imprisonment with a non-parole period of three years and seven months. There were six victims of the applicant’s offending. The offending occurred over a period of years between 1977 and 1980, and then again between 1987 and 1988, when the victims were young children. The offending was serious and had lasting and significant consequences that are detailed in Victim Impact Statements that were tendered on the plea.
The applicant complains that the individual sentences on three of the charges (which charges were representative charges) were manifestly excessive, and that the total effective sentence and non-parole period are also manifestly excessive. Central to the applicant’s complaints are contentions that the sentencing judge did not deal appropriately with the issue of delay and the issue of totality. The issue of totality related to both the offending for which the applicant was sentenced by the sentencing judge and to offending committed by the applicant in Queensland between October 1999 and April 2006. The Queensland offending, which was similar to the offending for which the applicant was sentenced by the sentencing judge, involved an additional five victims, all of whom were (again) children at the times they were offended against. For the Queensland offending, the applicant received sentences that resulted in his imprisonment from April 2006 until February 2012 (a little under six years).
The applicant complains about the sentencing judge’s treatment of the various matters he relied upon in mitigation. As I have said, he also contends that the judge
did not give adequate weight to the issues of delay and totality. There is no substance in these complaints. In careful and detailed reasons,[2] the judge dealt with all of the matters relied upon by the applicant in mitigation. Specifically, the judge carefully analysed and dealt with the issues of delay[3] and totality.[4] Further, the sentences actually imposed by the judge do not disclose any basis for contending that his Honour failed to give appropriate weight to the matters in mitigation relied upon by the applicant or to the issues of delay and totality.
[2]DPP v [Browne] (Unreported, County Court of Victoria, Judge Stuart, 3 February 2015). (‘Reasons’).
[3]Ibid [53], [67] and [68].
[4]Ibid [41]–[52] and [75]–[76].
While at first blush, the sentences imposed in respect of the three charges about which specific complaint is made might seem high, it is of course to be remembered that they were representative charges that fell to be dealt with in accordance with the principles set out in the authorities referred to by Robson AJA. In any event, whatever view one might take in respect of those three individual sentences, when one examines the whole of the applicant’s circumstances and offending, there is no reasonable prospect that the Court of Appeal would reduce the applicant’s total effective sentence.[5] The total effective sentence imposed by the judge was, with respect, entirely appropriate in this case. Further, far from being manifestly excessive, the non-parole period was (if anything) lenient.
[5]Cf s 280(1) of the Criminal Procedure Act 2009.
The application for leave to appeal must be refused.
ROBSON AJA:
Introduction
The applicant applies for leave to appeal against sentence under s 278 of the Criminal Procedure Act 2009 (CPA). The applicant pleaded guilty to 15 charges of indecent assault (one of those being unlawful indecent assault of a girl). The
applicant was charged on two indictments: Indictment E11613105 (the first indictment) which contained eight charges (three of those representative) and the other, Indictment E11612928A (the second indictment) that contained seven charges (three of those representative charges). The name of each victim in the tables that follow are the pseudonyms that were used on the plea in the County Court.
The charges and sentences were as follows:
Charges and sentences
Indictment E11613105 Indictment – Charge No. Description Maximum
PenaltyImprisonment
ImposedCumulation 1 S66(1) Unlawfully Indecent Assault a Girl
Licking Vagina
(Annika Antilla)
1977–19795 years 12 months 3 months 2 S68(3A) Indecent Assault On a Male Person
Licking the complainant’s penis whilst masturbating himself
(Keijo Antilla)
1977–19795 years 12 months 3 months 3 S68(3A) Indecent Assault On a Male Person
Masturbating complainant’s penis
(Harry Antilla)1978–19805 years 12 months 3 months 4 S68(3A) Indecent Assault On a Male Person
Representative charge of 11 instances of masturbating complainant’s penis
(Robin Antilla) 19795 years 25 months
(pre Renzella
36 months)25 months
Base sentence
(pre Renzella
36 months)5 S68(3A) Indecent Assault On a Male Person
Representative charge of 8 instances — Sucking of complainant’s penis
(Robin Antilla)5 years 30 months 8 months
6 S44(1) Indecent Assault
Placing her hand on accused’s penis and masturbating
(Selma Antilla)1981–19875 years 12 months 3 months 7 S44(1) Indecent Assault
Representative charge encompassing 3 instances of Touching vagina
(Selma Antilla)5 years 18 months 4 months 8 S44(1) Indecent Assault
Digital penetration of vagina
(Selma Antilla) 19825 years 18 months 4 months
Indictment E11612928A – Charge No. Description Maximum
PenaltyImprisonment
ImposedCumulation 1 S44(1) Indecent Assault
Touching vagina and clitoris under underwear 19875 years 9 months 2 months 2 S44(1) Indecent Assault
Representative charge of 5 occasions, rubbing vaginal area under underwear at family home 1987–19885 years 24 months 6 months 3 S44(1) Indecent Assault
Rubbing vaginal area through underwear with toes at his workplace5 years 9 months 2 months 4 S44(1) Indecent Assault
Representative charge of 2 occasions of touching complainant’s genitals under her underwear while accused was driving 1987–19885 years 12 months 3 months 5 S44(1) Indecent Assault
Rubbing her genitals whilst at doctor’s surgery 19875 years 9 months 2 months 6 S44(1) Indecent Assault
Representative charge of touching vagina with penis and hand in bedroom 19885 years 12 months 3 months
7 S44(1) Indecent Assault
Last occasion of touching vagina in lounge room 19885 years 9 months 2 months Total Effective Sentence 6 years 1 month imprisonment Non-parole period 3 years 7 months’ imprisonment Pre-Sentence Detention Nil 6AAA Declaration 9 years 1 month imprisonment
(Pre Renzella 10 years) with a non-parole
period of 6 years 1 month imprisonmentOther Orders Sex Offender Registration — Life
4642F Sample
The applicant was sentenced to a total effective sentence of six years and one month with a non-parole period of three years and seven months. The applicant had pleaded guilty to all the charges. The total effective sentence also took into account that the applicant had, for reasons not clearly explained, been held in custody some 11 months after he was eligible for parole in Queensland.
The applicant seeks leave to appeal on the ground that, in relation to the individual sentences on charges 4 and 5 of the first indictment, and charge 2 of the second indictment, the total effective sentence and non-parole period are manifestly excessive. The applicant further claims that, as a result of the passing of these ‘manifestly excessive’ individual sentences, the total effective sentence and non-parole period imposed are also manifestly excessive.
In substance, the applicant contends that the delay issue (explained further below) should have been a very powerful mitigating factor. Further, the applicant submits that the totality issue (also explained further below) was a very significant factor. As discussed further below in these reasons, the delay and totality issues are interrelated and arise from the fact that the applicant has been tried, convicted and sentenced for sexual assaults on minors on two other occasions in Queensland.
Circumstances of offending (Victoria)
First Indictment
The circumstances surrounding the offences and the detail of the offences are fully set out in the trial judge’s sentencing remarks. No issue is taken with respect to those remarks. It is necessary to relate a little more detail in relation to the Victorian offences. As for the offences the subject of the present appeal, the offending conduct took place from 1 April 1977 to 1988 (a period of some 11 years).
The offences the subject of the first indictment relate to four siblings who were sexually assaulted by the applicant while he was a guest in their home, the applicant having been involved in a scouting group with the children’s parents in the late 1970s. The sentencing judge’s remarks[6] also noted that the applicant sometimes was charged with care of the children as a babysitter, and sometimes stayed overnight. The indictment also relates to offences against the cousin of these four children, who was later to become his step daughter. The charges on that indictment are one charge of unlawful indecent assault (charge 1), four charges of indecent assault of a male person (charges 2, 3, 4 and 5) and three charges of indecent assault (charges 6, 7 and 8).
[6]Reasons [4].
The complainants were of a very tender age when assaulted. Annika Antilla[7] (the victim of charge 1) was sexually assaulted when aged seven to nine; Keijo Antilla[8] (the victim of charge 2) was between 12 and 13 during the applicant’s offending; Harry Antilla[9] (the victim of charge 3) was between 11 and 12; Robin Antilla[10] (the victim of charges 4 and 5) was approximately 12 at the time of the applicant’s offending; Selma Antilla[11] (the victim of charges 6, 7 and 8) was approximately 13 years old when the offending against her began.
[7]A pseudonym.
[8]A pseudonym.
[9]A pseudonym.
[10]A pseudonym.
[11]A pseudonym.
Charge 1 (which related to events between 1977 and 1979) was for unlawful indecent assault of Annika Antilla (aged 7 to 9) and related to events whereby the applicant, at the Antilla home, led Annika Antilla to her bedroom, and arranged for her to be undressed so that her lower body was exposed. The applicant (fully clothed) then got the victim to a position where her legs and knees were either side of the applicant’s head. The applicant proceeded to lick the victim’s vagina. The sentencing judge noted[12] that during and after the offending, the applicant gave the victim a direction that she was not to tell anyone and that what had happened was their secret.
[12]Reasons [6].
Charge 2 (relating to events between 1977 and 1979) concerned the indecent assault of Keijo Antilla (then aged between 12 and 13), which involved the applicant entering the victim’s bedroom and masturbating himself in front of the victim, then procuring the victim to kneel over the applicant who then licked the victim’s penis as he continued to masturbate himself.
Charge 3 (relating to events between 27 August 1978 and 26 August 1980) concerned the indecent assault of Harry Antilla (then aged between 11 and 12) which involved the applicant lying undressed from the waist down with the victim in the victim’s bedroom when they were alone in the Antilla home, touching the victim’s genitals and guiding the victim’s hand to touch the applicant’s genitals until the applicant ejaculated.
Charge 4 (relating to events in 1979) concerned the indecent assault of Robin Antilla (then aged approximately 12 years). The charge is a representative charge of no less than 11 incidents of masturbating his penis during the night when the applicant crept into the victim’s bed as he slept as a guest overnight in the children’s bedroom.
Charge 5 (relating to events in 1979) also concerned the indecent assault of Robin Antilla (then aged approximately 12 years). The charge is a representative charge of no less than eight occasions when the applicant sucked the victim’s penis in his bed at night in the same circumstances as gave rise to the offending under charge 4.
It is the sentences for charges 4 and 5 of the first indictment above that are the subject of the applicant’s present application for leave to appeal against sentence.
The sentencing judge noted[13] that the offending the subject of representative charges 4 and 5 only ceased after the victim told the applicant to stop, and the applicant agreed to stop if the complainant did not inform anyone of the offending.
[13]Ibid [11].
As mentioned above, Selma Antilla was the cousin of the other Antilla complainants. She was later to become the applicant’s step daughter by marriage in 1979. The offending the subject of charges 6, 7 and 8 occurred between 1980 and 1982.
Charge 6 (relating to events between 1 March 1981 and 31 December 1982) concerned the indecent assault of Selma Antilla when the applicant was staying at the house where the victim and her mother were staying, along with the victim’s sister with whom the victim shared a room. The victim awoke to find the applicant standing over her bed, as the victim’s sister slept in the room. The applicant held the victim’s hand on his penis and used it to masturbate himself.
Charge 7 (relating to events between 1 March 1981 and 31 December 1982) is a charge of indecent assault of Selma Antilla that is representative of at least three instances of the applicant touching the victim’s vagina in her room at night when the applicant co-habited with the victim and her mother. The sentencing judge’s remarks note[14] that, on the first occasion, the victim told the applicant to get out of her room. The victim also told her mother who said to her that she must be dreaming. On the last occasion, the victim screamed, and woke her sister who was residing in the house at the time.[15] Following that incident, the applicant moved out of the house but later moved back in, giving rise to the opportunity for a further indecent assault against Selma Antilla (charge 8).
[14]Ibid [14].
[15]Ibid.
Charge 8 occurred between 1 November 1982 and 31 December 1982. At a time when the victim’s mother (the applicant’s then wife) was in hospital, the applicant and victim were home alone. The applicant gave the victim alcohol and cigarettes, and showed the victim pornography while touching her breasts, stomach and vagina and then penetrating her vagina with his finger for several minutes until there was a knock at the door.
The applicant has only sought leave to appeal against the sentence in respect of charges 4 and 5 detailed above. However, it has been necessary to set out the nature of the offending in full, particularly as the applicant claims that, as a result of the individual offences being ‘manifestly excessive’, the total effective sentence and non-parole period are manifestly excessive. The same approach will be taken to the charges on the second indictment.
Second indictment
The second indictment set out seven charges relating to indecent assaults against Olga Yli-Hannuksela.[16] Olga was the daughter (from a previous relationship) of Anu Yli-Hannuksela,[17] whom the applicant commenced a relationship, and began living with, in October 1986 after Anu Yli-Hannuksela’s marriage ended. Anu Yli-Hannuksela and the applicant eventually married in 1990 and had three children.
[16]A pseudonym.
[17]A pseudonym.
Charge 1 on the second indictment (the events occurring between 1 January 1987 and 30 June 1987) related to the indecent assault of the victim (who was approximately 9 years old at the time) when the victim and her mother were at the victim’s home, and the victim was left alone with the applicant while her pregnant mother was unwell and fell asleep in the lounge room. In that same room, the applicant placed his hand inside the victim’s underwear and stroked her vagina while talking to her for some 20 minutes. After returning from a trip to the bathroom, the applicant then continued to expose and touch the victim’s vagina for about half an hour while her mother slept in the same room. The sentencing judge’s remarks[18] indicate that the victim told her mother about the events the subject of charge 1, who said she would speak to the applicant. Nothing appears to have come of this, as the offending continued.
[18]Reasons [21].
Charge 2 on the second indictment (the events occurring between 1 January 1987 and 26 September 1988) is a representative charge of five occasions of indecent assault of the victim (who was aged between 10 and 11 at the time), involving the applicant rubbing the victim’s vagina under her underwear at the family home.
That representative charge 2 is the subject of the present application for leave to appeal against sentence.
Charge 3 on the second indictment (the events occurring between 1 June 1987 and 31 December 1987) concerned an indecent assault against the victim (then aged nine or 10 years old) at the applicant’s then work place (a media outlet in Melbourne). The victim attended the workplace with the applicant during school holidays when her mother was ill. The victim napped under the applicant’s desk. With other employees in the vicinity, the applicant rubbed the victim’s vagina with his toes. The sentencing judge remarked on the boldness of this offending.[19]
[19]Ibid [24].
Charge 4 (occurring between 1 June 1987 and 31 March 1988) is a representative charge of two occasions when the applicant touched the victim’s genitals in the applicant’s motor vehicle (truck and car, respectively) when she was approximately 10 years old.
Charge 5 (occurring between 1 June 1987 and 31 December 1987) related to an indecent assault of the victim when the applicant took her to the doctors and she was required to attend the toilet to provide a urine sample. The applicant touched the victim’s vagina telling her it would help her to produce the sample.
Charge 6 (occurring between 30 June 1988 and 26 September 1988) relates to an indecent assault involving the applicant touching the victim’s (then 11 years old) vagina with his penis, and is also representative of the applicant touching the victim’s vagina with his hand on the same occasion. The applicant entered the victim’s bedroom when she was asleep. Despite the victim rolling over to avoid being touched, the applicant (who was naked but for a robe) dragged her to the end of the bed, took off her underwear and rubbed her vagina with his hand. He tried to force the victim’s leg open but she resisted and, after a time, the applicant left the room. The applicant then stood in the hallway and rolled a condom on his penis. He then again entered the victim’s room, and tried to open her legs, rubbing his penis on her vagina.
Charge 7 (occurring on 26 September 1988) relates to an indecent assault of the victim (then 11 years old) as she was getting ready for school in the living room of the home she shared with her mother and the applicant. The applicant knelt in front of the victim and touched her vagina. The victim’s mother then walked in.
The applicant received a total effective sentence for all offences of six years and one month, with a non-parole period of three years and seven months’ imprisonment. The sentences for each individual charge in both indictments are set out in the Schedule. The sentences for the charges the subject of the present appeal are as follows:
Charge Description Maximum Penalty Imprisonment imposed Cumulation 4 – First Indictment S68(3A) Indecent Assault On a Male Person Representative charge of 11 instances of masturbating complainant’s penis (Robin Antilla) 1979 5 years 25 months
(pre Renzella 36 months)
25 months
Base sentence
(pre Renzella
36 months)5 – First Indictment S68(3A) Indecent Assault On a Male Person Representative charge of 8 instances — Sucking of complainant’s penis (Robin Antilla) 5 years 30 months 8 months 2 – Second Indictment S44(1) Indecent Assault Representative charge of 5 occasions, rubbing vaginal area under underwear at family home 1987–1988 (Olga Yli-Hannuksela) 5 years 24 months 6 months Background to the delay and totality issue
The delay and totality issues arise as the applicant has been tried and sentenced on three occasions for sexual assaults on minors both here and in Queensland. The offences the subject of the present application have been outlined above.
The applicant was also convicted of sexual assault offences against his own son that took place from 13 October 1999 to 15 October 2004 in Queensland, dealt with in the second Queensland trial. He was also convicted of sexual assault offences against friends of his son that took place from July 2003 to April 2006. These assaults were the subject of the first trial held in Queensland. It is necessary to outline in more detail the chronology of events in Queensland, as it is relevant in considering the total sentence which is appropriate, and to provide background to the delay in the Victorian convictions which the applicant claims was a ‘powerful mitigating factor’ in sentencing.
The applicant was first in custody in respect of the assaults carried out in Queensland in April 2006, that related to the offences against the friends of the applicant’s son. The applicant was sentenced in that first Queensland trial (relating to the sexual assaults on friends of his son) on 13 June 2007. The matter went on appeal, and he was re-sentenced on 28 March 2008. He was declared eligible to be released for parole after serving 32 months on 20 December 2008.
The applicant was interviewed about the Victorian offences in May 2006 but did not provide any comment. The applicant was charged with the Victorian offences on 13 February 2007.[20]
[20]Reasons [53].
In July 2007, the applicant applied for transfer to Victoria on legal grounds so that he could address the matters that were before the Victorian court.[21]
[21]Ibid [50] (referring to the psychological report of Janelle Bardsley, Exhibit 1 tendered at the plea hearing).
On the second trial relating to the sexual assault of his son, on 11 March 2011 the applicant (who was still in custody) was sentenced to three years wholly concurrent with his previous sentences (in light of the fact that he had remained in custody after the date for release on parole in December 2008 for reasons that are not clear) and the parole period was set for the same date of 11 March 2011. For some reason, again not properly explained but which appears to relate to the availability of a required sex offender’s course,[22] the applicant did not receive parole until 22 February 2012 when he was released from prison in Queensland. As the sentencing judge noted, this matter required that an adjustment be made in accordance with the principles in R v Renzella[23] to reduce the sentence that would otherwise be imposed for the Victorian offences by 11 months.
[22]Reasons [54].
[23][1977] 2 VR 88 (‘Renzella’).
As noted above, on 18 May 2006, the applicant was interviewed about the Victorian offences, the subject of this appeal, whilst in custody in Queensland awaiting his first trial in Queensland.[24] On 13 February 2007, the applicant was charged on the Victorian offences.
[24]The applicant declined to comment on the allegations but the learned trial judge explicitly noted that that matter should not be held against the applicant: Reasons [17].
When the applicant was released on parole in Queensland in February 2012, he applied to the parole authorities for permission to leave Queensland to come to Victoria to face the Victorian charges. Permission was refused and the applicant was not able to return to Victoria until April 2014. As mentioned above, the applicant pleaded guilty to the Victorian offences and the plea hearing took place on 21 and 30 January 2015.
Thus, the delay and totality issues are interrelated. The delay has been caused by the applicant being retained in Queensland to be tried and serve his sentences for the two lots of Queensland offences involving his son and his son’s friends. The totality issue arises as he was sentenced for the Victorian offences after he was sentenced in the first Queensland trial for sexual assault on the friends of his son and the second Queensland trial for the sexual assault of his son.
Applicant’s circumstances
It is convenient to set out some background about the applicant to provide some further context to the matters which were said to be mitigating factors.
The applicant was born in December 1955. He was one of six siblings, one of whom died at an early age. As the trial judge expressed it, there was ‘discord’[25] between the applicant and his parents growing up. The applicant received good schooling, was academically able and achieved an education and a high level career as a journalist. The trial judge accepted that, notwithstanding these achievements, the applicant found himself isolated at school and to some degree in later life.[26]
[25]Reasons [55].
[26]Ibid.
The applicant claims to have been the victim of three separate incidents of child sex abuse himself, by three different perpetrators. However, the psychological report indicated that the applicant does not offer this as an explanation for his own behaviour.[27]
[27]Psychological report, Exhibit 1 tendered at the plea hearing, s 9.2.
The psychological report tendered on behalf of the applicant outlined a number of health problems, most relevantly autism, with which the applicant was diagnosed at 12. It was not submitted that this should reduce his moral culpability (this is discussed further below). Rather, it was submitted that the health problems were principally relevant in relation to the impact of the applicant’s re-imprisonment.
The balance of the applicant’s relevant relationship history is set out elsewhere in these reasons. Since the events set out otherwise in these reasons, the applicant has entered into a new relationship and has a caring role for his partner’s ill relative.
Applicant’s grounds and submissions
The applicant advances his appeal on the following ground: that is, that the individual sentences for charges 4 and 5 (on the first indictment) and charge 2 of the second indictment are manifestly excessive, both in relation to the total effective sentence and the non-parole period.
The applicant’s chief submission is that, in light of the various matters in mitigation, and the proportion of the maximum penalty imposed, the individual sentences are manifestly excessive.
Further, it is said that the passing of the manifestly excessive individual sentences has led to the imposition of a total effective sentence and non-parole period which are manifestly excessive.
The applicant’s submissions acknowledged the difficulty of the sentencing exercise and the seriousness of the offences committed, including aggravating features. It was acknowledged that the ‘nature and extent of the offending demanded that a significant period of imprisonment be imposed.’
However, the applicant submits that the learned sentencing judge was required to have regard to a number of matters in mitigation. These matters included (with the applicant’s references to the relevant parts of the judge’s reasons for sentence):
(a)the pleas of guilty;
(b)the fact that the pleas were entered at an early stage;
(c)the utilitarian effects of the pleas of guilty;[28]
(d)the finding that the applicant had demonstrated regret and remorse;[29]
(e)the fact that the applicant was to be treated as a person without any prior criminal history;[30]
(f)that the applicant’s time in custody would be particularly burdensome;[31]
(g)the finding that the applicant was at low risk of re-offending.[32]
[28]Reasons [62].
[29]Ibid.
[30]Ibid [40].
[31]Ibid [69].
[32]Ibid [67].
Beyond the matters in mitigation mentioned above, the applicant emphasises as significant the ‘delay issue’ and the ‘totality issue’ calling them ‘powerful mitigating’ factors.
The applicant principally focuses on the delay between the time at which he was first interviewed in relation to the offences in 2006 and the time at which he is being sentenced, as well as the fact that the offending occurred ‘between 24 and 38 years ago.’ Since the applicant was first interviewed, he has served sentences in Queensland, completed parole, ‘achieved substantial rehabilitation’ and ‘had these matters hanging over his head’. The applicant’s counsel emphasised that full weight should be given to that subjective experience as a matter of fairness.
The essential contention in relation to delay and totality is that there was a delay in the applicant being sentenced in relation to the Victorian offences due to his serving sentences in Queensland for similar offences, during which time, it is submitted, the applicant has undergone rehabilitation and suffered the subjective effects of not knowing what his sentence for the Victorian offences would be. The delay, in turn, raises the totality issue as the applicant submits that he was denied the opportunity of serving sentences the subject of the Victorian offences concurrently with his previous sentences carried out in Queensland. The applicant refers to R v Todd[33] and Mill v The Queen[34] in this regard.
[33][1982] 2 NSWLR 517 (‘Todd’).
[34](1988) 166 CLR 59 (‘Mill’).
Counsel for the applicant again emphasised at the hearing that the issues of delay and totality were unusual features facing the learned sentencing judge and powerful sentencing considerations, and submitted that the applicant should be entitled to the ‘full weight’ of considerations regarding his efforts towards rehabilitation during the period since he was charged. Since then he has been in custody, completed a sex offender’s program in custody and completed rehabilitation courses out of custody; he is also now in a relationship and has taken on a caring role as a result of that relationship.
Counsel for the applicant contended that the totality issue was not satisfied merely by the Renzella discount but depended on a consideration of the defendant’s lost opportunity of concurrency between his Queensland and Victorian offences.
The applicant says that the manifestly excessive nature of the sentences is further evident in the proportion those sentences represent to the total maximum allowable sentence — for example, the imposition of a pre-Renzella sentence of 36 months (for charge 4), which represents a 60 per cent proportion of the maximum penalty, is manifestly excessive when regard is had to the matters in mitigation.
Counsel for the applicant urged the court to consider the findings made about the benefit of the applicant’s plea, his remorse, the consideration of the personal references provided on behalf of the applicant, the finding that he was to be sentenced as though he had no relevant criminal history, the finding that time in custody would be ‘burdensome’ in particular due to the applicant’s health difficulties, ‘combined with his autism’, and to ask ‘with all these favourable findings, how do you then still have a sentence that is so close to the maximum penalty?’
Counsel for the applicant acknowledged that the fact that the charges related to representative offences could impact sentencing, noting that that fact did not ‘necessarily mean that the applicant had to be punished additionally’ but that the court was entitled to consider the whole context of the offences, and that it was not to be argued in mitigation, in any event, that the offending was isolated.
The applicant further submits that the manifestly excessive individual offences has led to a situation where the total effective sentence and the non-parole periods set are manifestly excessive, having regard to the mitigating factors, and in particular, the delay and totality issues.
The applicant referred in his written submissions to the additional time served in Queensland, which is described as ‘[o]n one view, [the applicant] has served an additional period of 38 months imprisonment through no fault of his own.’ It should be noted that this submission was not pressed at the hearing of the appeal.
In my view, the ‘additional’ time served has been dealt with by the adjustment of 11 months the learned sentencing judge in Victoria made on the Renzella principles (to adjust the 11 month period in which the applicant was in custody in Queensland after he was declared eligible for parole in 2011), and the decision of the second learned sentencing judge in Queensland, who held that the second Queensland sentence would be served concurrently with the first, with the result that the applicant was eligible for parole on the same day as he was sentenced following the second Queensland trial.
The Crown emphasised the seriousness of the offences, which had occurred in a relationship of trust between a number of children and the applicant. The Crown also referred to the principle of general deterrence as a significant sentencing factor to cases involving historical child sex abuse such as this.
The Crown submitted that the sentences imposed by the learned sentencing judge and his Honour’s ‘expansive and considered reasons for sentence’ (in respect of which there was no complaint of a specific error) indicate that all mitigating factors, including delay and totality, had been given considerable weight.
Further, the Crown emphasised that, even if the individual offences were considered high (which was not conceded), the applicant had to overcome the obstacle imposed by s 280(1)(b) of the CPA, which provides:
Section 280 Determination of application for leave to appeal under section 278
(1)The Court of Appeal may refuse an application for leave to appeal under section 278 in relation to any ground of appeal if —
(a) there is no reasonable prospect that the Court of Appeal would impose a less severe sentence than the sentence first imposed; or
(b)there is no reasonable prospect that the Court of Appeal would reduce the total effective sentence despite there being an error in the sentence first imposed.
(2) An application may be refused under subsection (1) even if the Court of Appeal considers that there may be a reasonably arguable ground of appeal.
(3)On refusing an application by reason of subsection (1)(b), the Court of Appeal may, if it considers it appropriate to do so —
(a) amend the sentence first imposed by substituting a less severe sentence; and
(b) make any other order that the Court of Appeal considers ought to be made.
It was submitted on behalf of the Crown, that in light of the criminality perpetrated against multiple child victims, the court should find that if error was established then there was no reasonable prospect that the Court of Appeal would reduce the total effective sentence in any event.
Applicable principles
The courts have recognised that, in sentencing for historical offences for child sexual abuse, general deterrence assumes significant importance as a sentencing factor. The court may and indeed should denounce such conduct in order to preserve the community standards which should serve to protect children. In DPP v Toomey,[35] the Court of Appeal of the Supreme Court of Victoria applied these principles in the context of historical child sex abuse offences (committed approximately 30 years prior to sentencing) in order to find that the sentence passed by a learned trial judge was manifestly inadequate, notwithstanding that the offender’s personal circumstances were found to demonstrate significant rehabilitation since the time of the offending (and that Crown appeals are generally exceptional). The Court outlined the applicable principles as follows:
[35][2006] VSCA 90 (19 April 2006) (‘Toomey’).
… The courts have recognised that those who commit crimes against one of the most vulnerable groups in society, which almost invariably have long-term effects on their victims, should be severely punished. See Ryan v The Queen.
In sentencing the respondent and suspending all but six months of the sentence, her Honour appears to have been particularly influenced by the respondent’s personal circumstances.
…
Nevertheless, despite the antiquity of the offences and the respondent’s apparently blameless life since then, in my opinion the sentences so devalue the gravity of the offences that it is to be inferred that the sentencing judge fell into error, although no particular error can be identified. … The lapse of time since the commission of these offences is not unusual. Nor is the otherwise blameless life of the offender. The crimes themselves and their consequences demand a significant sentence. General deterrence and denunciation of the respondent’s conduct are of the first importance.
…
… Often such victims, experiencing unjustified feelings of embarrassment, shame, guilt that have been induced by the behaviour of the perpetrator, will continue to remain so for many years. Accordingly, and very frequently, as in this case, the commission of offences will not be exposed until long afterwards. Considered in this light, it is in my opinion apparent that the principle of general deterrence must assume very considerable significance as a sentencing consideration. Further, it is incumbent on the courts, however long ago the offences were committed, to express the denunciation of the community of such behaviour, through sentences imposed on perpetrators. They must be seen to vindicate the values of society that they represent, fundamental to which is the protection of its children.[36]
…
I agree with the learned presiding judge and with Vincent JA that cases such as this case can no longer be regarded as exceptional by reason only that the offending occurred a long time ago and that the offender may since have gone a considerable way towards rehabilitation. Regrettably, such cases occur all too frequently.[37]
[36]Toomey [2006] VSCA 90 (19 April 2006) [10], [11] and [14] (Buchanan JA) (citations omitted); [17] (Vincent JA).
[37]Toomey [2006] VSCA 90 (19 April 2006) [26] (Nettle JA).
Each of the charges the subject of the appeal in this case is a representative charge. It is therefore necessary to give some consideration to the manner in which that fact should affect the imposition of sentencing principles.
The rationale for such representative charges (also called specimen or sample charges) was described by Ormiston JA in R v SBL[38] as follows:
Apart from the extent to which account may be taken of the admitted facts, there seems little reason why the practice of accepting pleas to representative counts should not continue in [Victoria]. It saves time and expense from the viewpoint of both the prosecution and the accused. The description of the relevant events is made simpler for the purpose of a plea, even if that description would inadequately particularise the counts for a trial. The accused may fairly expect that the matter will be brought to a conclusion by the acceptance of the pleas at the end of the sentencing process. That is a benefit not only to the accused but also to the victims who otherwise would face the real risk of having to give evidence at some later trial if such practice were not adopted.[39]
[38][1999] 1 VR 706 (‘SBL’).
[39]Ibid 724 [64].
His Honour refers to the ‘substantial advantage’ and ‘substantial practical benefit’ to the accused, citing R v Leinkauf.[40]
[40]Unreported, Court of Appeal, 9 October 1996 (Vincent AJA, with whom Hayne JA and Coldrey AJA agreed).
In SBL, Ormiston JA considered the uncertain and variable approach to sentencing in respect of representative charges across different Australian jurisdictions at that time, much of that uncertainty arising from the principle that, in sentencing, regard cannot be had to offences that were not before the court. Ormiston and Batt JJA, however, distinguished from that general principle, cases in which the representative charge was agreed to by the offender. In such circumstances, their Honours held that, although the offender was not to be punished for the represented offences, the court was entitled to view that charge within its wider context and circumstances which should be given ‘proper effect and recognition for the purposes of imposing a just sentence, paying due regard to recognised principles of proportionality and totality.’[41]
[41]SBL [1999] 1 VR 706, 724 (Ormiston JA). See also 725–6 [68]–[73] (Batt JA).
In SBL, Batt JA said:
Not only does the fact that a count is agreed to be representative preclude its being said in mitigation that the offence was isolated, it affirmatively enables the offence to be seen in its full circumstantial context. The offender is not, by a loading of the sentence, to be punished for the represented offences, but the sentence for the representative offence may reflect the fact that it, the offence counted, occurred in the wider context. Consistently with the view which I have expressed about agreed representative counts, regard may in the present case be had to the adverse effect upon the victims of the whole of the conduct, which effect might not have been produced, or produced to the same extent, by the offences counted alone.[42]
[42]SBL [1999] 1 VR 706, 726 [70].
More recently, in R v CJK,[43] Warren CJ considered the Victorian authorities and concluded that, while representative charges should not be seen as aggravating per se nor should they lead to an inappropriate sentence,[44] the Court is permitted to look at the ‘whole picture’,[45] in determining the appropriate sentence ‘and the representative nature of the representative counts is more likely to lead to a greater sentence than would otherwise be imposed.’ This is reflective of the impact on the victim of a representative count, which is highly likely to be greater than for the victim of a single comparable count. Relevantly, her Honour stated:
However, a sentencing judge is permitted to look to the whole picture, including the conduct which is represented in the count. In light of that conduct, the sentencing judge imposes the appropriate and just sentence in all the circumstances. If those circumstances render the offence more serious and lead to a higher sentence than would otherwise have been imposed in the absence of the representative nature, then it is not unreasonable or erroneous to observe it as an aggravating feature, even if only ‘colloquially’.[46]
[43](2009) 22 VR 104 (‘CJK’).
[44]Ibid 113 [58]. Her Honour noted at 110 [39] that the term ‘aggravating’ was sometimes apt to be misunderstood when it is merely used to express the lack of circumstances of mitigation (so as to exclude leniency) rather than referring to the existence of aggravating factors which might lead to a longer sentence.
[45]CJK (2009) 22 VR 104, 113 [55] (Neave and Vincent JJA concurring).
[46]Ibid [58].
Her Honour thus accepted that ‘representative counts may form the basis for a higher sentence than that which would have been imposed for a single charge.’[47]
[47]Ibid [46], citing Godfrey v R (1993) 69 A Crim R 322 (in turn, cited with approval in SBL [1999] 1 VR 706 and R vHolyoak (1995) 82 A Crim R 502).
In R v Todd,[48] the New South Wales Court of Criminal Appeal considered an appeal against a non-parole period (not the head sentence) for crimes committed in Sydney for armed robbery in circumstances when the appellant was serving sentences for similar crimes committed in Queensland within some days of the Sydney offences. The Court of Appeal found that the trial judge had erred in failing to have regard to the sentences served in Queensland. The court held that the sentences served in Queensland were relevant in determining the appropriate sentence having regard to the ‘totality of [the appellant’s] criminality over this period of eight days of committing offences of a similar character’. Chief Justice Street (with whom Moffitt P and Nagle CJ at Common Law agreed) said that, in determining what the appropriate sentence should be, it was relevant to consider the approach to sentencing if all of the offences had occurred in one state:
… But it would be wrong, in my opinion, to disregard the practical situation that the appellant had already served a substantial period of imprisonment in Queensland for offences so closely related in time and character to the Sydney offences. … Preferably, one would hope that, in the orderly administration of justice within this State, all offences would have come before the same judge on one occasion. But assuming that [the offences] came before separate New South Wales judges, it would be a question for the second judge to evaluate what was the field open to be entered in sentencing for the Sydney crimes. It would be both relevant and material to pay regard to the totality of the imprisonment being visited on the appellant in consequence of the totality of his criminality over this period of eight days of committing offences of similar character.[49]
[48][1982] 2 NSWLR 517 (‘Todd’).
[49]Ibid 519.
In this regard, the facts of the case may be distinguishable given the timetable of the offences committed in the two states. Chief Justice Street regarded the offences as comprising ‘one episode of criminality.’
The Court of Appeal also considered that the fact that there was a delay in sentencing for the Sydney offences because the appellant was serving sentences in Queensland was a relevant factor in sentencing. In relation to the non-parole period, Chief Justice Street said that:
Moreover, where there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstance that he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on the subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of offences, calls for a considerable measure of understanding and flexibility of approach — passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner.[50]
[50]Ibid.
However, Street CJ goes on to indicate that a determination as to head sentence does not necessarily require this ‘leniency’:
In deciding upon the head sentence, as opposed to the non-parole period, the second judge does not, of course, go directly to the determination of an aggregate term. But the pre-existing sentence, and the aggregate term which will result from the sentence passed by the second judge, are relevant matters necessary to be taken into account by him in determining the head sentence. The degree to which they affect his determination will, of course, vary. It is not practicable — indeed probably not possible — to lay down more specifically any general principle in regard to these matters.[51]
[51]Ibid 520.
In Mill v The Queen,[52] the High Court (Wilson, Deane, Dawson, Toohey, Gaudron JJ) considered an appeal against sentence in respect of offences of a similar nature and pattern as the offences considered in Todd. The appellant had committed three armed robbery offences in both Victoria and Queensland over a period of approximately six weeks. Upon the appellant’s release on parole in Victoria following a sentence for the offences committed there, he was arrested and returned to Queensland to be tried for a further armed robbery offence committed in that state.
[52](1988) 166 CLR 59 (‘Mill’).
The High Court affirmed the relevance of the principle of totality to the determination of sentence in relation to multiple offences, describing that principle as follows:
The totality principle is a recognised principle of sentencing formulated to assist a court when sentencing an offender for a number of offences. It is described succinctly in Thomas, Principles of Sentencing, 2nd ed. (1979), pp. 56-57, as follows (omitting references):
‘The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is “just and appropriate”. The principle has been stated many times in various forms: “when a number of offences are being dealt with and specific publishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total to see whether it looks wrong[“]; “when … cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences.’[53]
[53]Ibid 62–63.
The circumstances in Mill, as in Todd, involved an application of the principle of totality where offences of a similar nature had been committed across state lines within a short period.[54]
[54]Ibid 63.
The High Court (Wilson, Deane, Dawson, Toohey and Gaudron JJ) affirmed the reasoning in Todd (referring to the passages cited above) as to the approach that should be taken when an offender ‘comes to be sentenced many years after the commission of an offence because during the intervening period he has been serving a sentence imposed in another state in respect of an offence of the same nature and committed about the same time.’[55] The court adopted that approach and applied the totality principle as if the appellant had committed the offences in the same state and had been sentenced at the one time.[56]
[55]Ibid 66.
[56]Ibid.
The High Court found that the principle of totality as applied in the context of interstate offending is not limited (as it was in Todd) to a determination of non-parole period but also the determination of a head sentence.
The High Court also noted the significance of the subjective factors arising from delay in the sentencing for the subsequent offences caused by a period of incarceration in another state:
… it is not correct for the second sentencing court to determine the head sentence by reference to the normal tariff applicable to the offence for which he is then being sentenced, leaving the fixing of a non-parole period alone to reflect the principles laid down in Todd. The long deferment of the trial or punishment of an offender, with the consequent uncertainty as to what will happen to him, raises considerations of fairness to an offender which must be taken into consideration when the second court is determining an appropriate head sentence. The intervention of a state boundary denies to an offender the opportunity of having a series of offences dealt with together by a sentencing court which can avail itself of the flexibility in sentencing provided by concurrent sentences.[57]
[57]Ibid.
As in Todd, the facts of Mill are somewhat different to the present case given that the applicant’s offending in the two states of Victoria and Queensland were not committed in a confined period, but spanned many years. More will be said of this below.
The grounds for appeal in this case concern the following key issue: whether, having regard to relevant mitigating factors and principles (including, in particular, issues of totality and delay), the sentences imposed (and the non-parole period) were manifestly excessive. To establish those grounds, the applicant must demonstrate that the sentence imposed was ‘wholly outside the range of sentencing options available’ to the sentencing judge.[58]
[58]See for example, SBL [1999] 1 VR 706, 712 [27]; Clarkson v R (2011) 32 VR 361, 384 [89]; Morrison v R [2015] VSCA 249, [37].
Sentencing Judge’s reasons for sentence
Although there was no specific issue taken by the applicant with the learned judge’s reasons, it is convenient to outline the matters considered by his Honour. To emphasise again the role of this court, the review of the trial judge’s reasons is by way of determining whether, considering all relevant matters relating to the offending and mitigating factors, the sentences imposed were open to his Honour. It is not the role of this court to consider the plea of the applicant afresh and impose a new sentence unless it can be demonstrated that the learned sentencing judge erred.
The learned sentencing judge rightly relied upon the decision of the Court of Appeal in Toomey to conclude that the gravity of the offending means that general deterrence is the principal factor in sentencing the applicant and denunciation of the offender’s conduct was of great importance.[59] The learned sentencing judge noted that there was some need for specific deterrence[60] and that the applicant was to be sentenced as a serious sexual offender.[61]
[59]Reasons [72]–[74].
[60]Ibid [75].
[61]Ibid [76].
The trial judge noted the deliberate,[62] base[63] nature of the offending, and the boldness[64] and ‘force’[65] with which it was often undertaken. The trial judge rightly noted that the applicant did on several occasions display an awareness of the base nature of his offending by requiring his victims to maintain their silence about the offences,[66] on one occasion, only stopping when one of the victims threatened to reveal him,[67] and, on another occasion, ‘taunting’[68] one of his victims when he was inexplicably returned to the house after the offending against her was revealed, demonstrating the applicant’s ‘mind-set and [his] understanding of the gravity of the offending.’[69]
[62]Ibid [32].
[63]Ibid [18].
[64]Ibid [24], [27].
[65]Ibid [28].
[66]Ibid [6].
[67]Ibid [11].
[68]Ibid [14].
[69]Ibid.
The offending involved a significant and gross abuse[70] of trust ‘time and time again’[71] of children (often in the applicant’s care). The manner and frequency[72] of the offending, with the applicant taking ‘the opportunity whenever [he] chose to do to offend against these young children’,[73] meant that nowhere was safe for the children.[74] The trial judge summarised it thus:
This offending … was a gross breach of trust. The period of offending was lengthy. You did as you liked to satisfy yourself. No place was safe for these children: their own bedrooms, doctor’s surgery, cars, work and other places.
You offended against males and females. All the children were young. They were all vulnerable. You took advantage of their vulnerability. You told some of them not to tell.[75]
[70]Ibid [18].
[71]Ibid [5].
[72]Ibid [31].
[73]Ibid [18].
[74]Ibid [71].
[75]Ibid [70]–[71].
The sentencing judge rightly had regard to victim impact statements which showed the long term, profound and continuing effects of the applicant’s conduct.[76]
[76]Ibid [39] and following.
The judge did not explicitly refer to the principles regarding the ‘representative’ nature of some of the offences but that appears to have been one of the bases upon which the sentencing judge relied in devising the sentences the subject of the appeal, which are higher than the other charges on the indictments.
The sentencing judge was required to, and did, have regard to mitigating factors, in particular, delay and rehabilitation. His honour clearly had regard to the issue of delay as he set out various other offences and the history of the offences in Queensland.[77] The decisions of the Queensland sentencing judges were tendered at the applicant’s plea hearing. His Honour noted in that connection that ‘you have been anxious to see these matters behind you … [and] have had these matters hanging over your head for a very considerable period of time during which your fate has been unknown to you, other than it must involve a further period of custody.’ The learned sentencing judge accepted that, since 2006 when the applicant was interviewed for the Victorian offences, he has used his time to rehabilitate himself ‘as best as [he] can.’[78]
[77]Ibid [40]–[54].
[78]Ibid [68].
The sentencing judge also clearly considered the totality issue, noting that the Queensland offences must be considered ‘in arriving at what is the appropriate total sentence’ as well as the need for the Renzella adjustment. His Honour further stated[79] that he ‘must take into account principles of totality in sentencing you for you have lost the opportunity of having sentences imposed consistent with those principles, through no fault’ of the applicant’s. Finally, his Honour noted that ‘I have adverted to the principle of totality.’[80]
[79]Ibid [49].
[80]Ibid [75].
The sentencing judge considered references submitted on behalf of the applicant as to his efforts in the wider community[81] and the ‘comprehensive’ psychologist’s report, which led the sentencing judge to conclude that the applicant was a ‘high-functioning individual. You had a high work ethic. But there was also this other side to you as revealed in the materials I have thus far considered’.[82]
[81]Ibid [34].
[82]Ibid [35].
The sentencing judge ‘utterly rejected’[83] any suggestion in that report that the applicant did not know what he was doing was wrong, but gave weight to the psychological report in accepting (somewhat hesitantly) that there was a low risk of reoffending.[84] In that regard, his Honour also had regard to a letter from the applicant that was tendered at the plea hearing, in which he described himself as ‘absolutely a changed man’,[85] including noting his caring responsibilities.
[83]Ibid [59].
[84]Ibid [67]
[85]Ibid [64].
The sentencing judge accepted that the applicant’s guilty pleas were of utility to the victims and community, and demonstrated ‘some evidence of [the applicant’s] regret and remorse.’[86]
[86]Ibid [61]–[62].
The sentencing judge also noted that the applicant’s health problems had meant that custody was very onerous and ‘moderated’ the sentences as a result. The judge noted that the applicant experienced sex abuse as a child but did not attribute his own offending to that.[87] It should be noted that the applicant’s illnesses (including autism) were emphasised in relation to the difficulties they presented for the applicant in undertaking a custodial sentence. It was not said during the plea hearing that the applicant’s capacity was diminished as a result of his autism so that he did not know what he was doing was wrong and his moral culpability was reduced. However, counsel at the plea hearing did suggest that his autism might have reduced his understanding of the impact of his behaviour.
[87]Ibid [70], referring to the psychological report.
The sentencing judge’s reasons evidence a consideration of the seriousness of the offences, and their long term effects, while also having proper regard to all mitigating factors.
Discussion
It was submitted on behalf of the applicant that there were significant mitigating factors in this case. I accept that that is so, and that the early guilty pleas, and issues of totality and delay (in relation to the period between initial charge and sentence, not the delay since the offences occurred) warranted serious consideration. Even having regard to those mitigating factors, the charges the subject of this appeal are not aptly described as manifestly excessive.
Including time already served for two other groups of offences in Queensland, the applicant will serve a total sentence (not allowing for parole on the current offences) of approximately 12 years.
It is with regard to his total offending (in both Queensland and Victoria) that the applicant submits that the totality and delay issues are powerful mitigating factors. Unlike the case law referred to in support of these principles, such as Todd and Mill, the totality of the applicant’s criminality (to adopt the phrase used in Todd) did not span a few days or weeks. The Queensland offences spanned 1999 to 2006. The Victorian offences spanned over 10 years between 1977 and 1988.
These many years of offending left a trail of destroyed lives over some 30 years. There are 15 offences, several of them, including the charges the subject of the present appeal, being representative. There were aggravating factors, including the age and vulnerability of the victims,[88] the applicant’s attempts to silence several of his victims and the boldness with which he undertook some of the offending. There were six victims of serious sexual offences; all minors, one being only seven years of age. The effects of the applicant’s criminal behaviour on these victims have been devastating and will continue to be so for the rest of their lives.
[88]As conceded by counsel for the applicant at the plea hearing.
The applicant has undergone some rehabilitation over the period of his incarceration in Queensland and since. That rehabilitation indicates that the applicant has made the best of the period between initial charge for the Victorian crimes, and the date on which he is sentenced, in circumstances where he knew he would need to face further custodial sentences in Victoria. His guilty pleas are reflective of some appropriate element of remorse and perhaps relevant to whether any specific deterrence is required. This was all taken into consideration by the sentencing judge, along with totality and delay.
However, delay and the principle of totality do not require the court to discount an otherwise appropriate sentence for grave, sometimes bold offences occurring many years apart. The lost opportunity for concurrency was emphasised by the applicant, but should not be overstated in light of the many years of offending and that the three series of sentences all related to groups of offences with different victims many years apart. These offences must be denounced by the courts that are entrusted to impose justice according to the principles of general deterrence.
In my opinion, the learned sentencing judge gave adequate consideration to all mitigating factors. There was no error in the sentences imposed in relation to the charges the subject of the appeal. In any event, if there is an error in the sentences first imposed, then in my opinion, pursuant to s 280(1)(b) of the CPA, I am not satisfied that if leave to appeal were granted that on the appeal the Court would reduce the total effective sentence despite there being an error in the sentence first imposed.
I would refuse the application for leave to appeal.
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