Buckley v The Queen
[2016] VSCA 222
•14 September 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2015 0194
| JOHN HAMILTON BUCKLEY | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | REDLICH, WEINBERG and McLEISH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 25 August 2016 |
| DATE OF JUDGMENT: | 14 September 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 222 |
| JUDGMENT APPEALED FROM: | DPP v Buckley (Unreported, County Court of Victoria, Judge Patrick, 11 September 2015) |
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CRIMINAL LAW – Appeal – Sentence – Election to renew application for leave to appeal against sentence – Indecent assault (9 counts), gross indecency (3 counts), sexual penetration of a person under 16 and possession of child pornography – Guilty plea – Offences committed against students or former students of school at which applicant was housemaster – Applicant 74 years old at time of sentence – Whether judge took proper account of applicant’s age – Whether sentences manifestly excessive – R v RLP (2009) 213 A Crim R 461, discussed – Application for leave to appeal granted, appeal dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr M D Stanton | Slades & Parsons |
| For the Respondent | Mr D A Trapnell QC | Mr J Cain, Solicitor for Public Prosecutions |
REDLICH JA
WEINBERG JA
McLEISH JA:
The applicant pleaded guilty to a series of sexual offences. With one exception, the offences were committed between 1980 and 1983 against children who attended, or had recently attended, the primary school where the applicant was a teacher.
On 11 September 2015, the applicant was sentenced as follows:
Charge No Offence Maximum Penalty Sentence Cumulation 1 Indecent assault (s 68(3A) Crimes Act 1958) 5 years 2 years 6 months 5 months 2 Indecent assault (s 68(3A) Crimes Act 1958) 5 years 2 years 6 months 5 months 3 Indecent assault (s 68(3A) Crimes Act 1958) 5 years 2 years 6 months 8 months 4 Indecent assault (s 68(3A) Crimes Act 1958) 5 years 2 years 6 months 8 months 5 Indecent assault (s 68(3A) Crimes Act 1958) 5 years 2 years 6 months 8 months 6 Indecent assault (s 44(1) Crimes Act 1958) 5 years 6 months 3 months 7 Indecent assault (s 44(1) Crimes Act 1958) 5 years 4 months 2 months 8 Gross indecency (s 50(1) Crimes Act 1958) 3 years 3 months 1 month 9 Sexual penetration of a person under 16 (s 48(1) Crimes Act 1958) 15 years 3 years 6 months Base 10 Gross indecency (s 50(1) Crimes Act 1958) 3 years 3 months 2 months 11 Indecent assault (s 44(1) Crimes Act 1958) 5 years 4 months 1 month 12 Gross indecency (s 50(1) Crimes Act 1958) 3 years 10 months 4 months 13 Possession of child pornography (s 70(1) Crimes Act 1958) 5 years 3 months 1 month TotalEffectiveSentence: 7 years 6 months Non-ParolePeriod: 4 years 9 months Pre-sentence detention: 53 days Sentencebutforpleaofguilty: 10 years 6 months, with a non-parole period of 7 years 6 months Other relevant orders: Sentenced as a serious sexual offender in relation to charges 3 to 13
Reporting pursuant to Sex Offenders Registration Act 2004 for life
Forensic procedure order
The applicant sought leave to appeal against sentence. That application was dismissed by Maxwell P on 4 April 2016. The applicant has elected to renew his application under s 315(2) of the Criminal Procedure Act 2009.
The applicant relies on two proposed grounds of appeal (a third ground having been abandoned before the hearing):
1.The individual sentences, total effective sentence and non-parole period are manifestly excessive.
...
3.The learned sentencing judge erred by failing properly to take into account the applicant’s advanced age.
Nature of offending
Apart from charge 13, the applicant’s offending occurred between 1980 and 1983. At that time, he was housemaster of the boarding house at Glamorgan Preparatory School in Toorak. The applicant offended against six boys who were either current or former students at Glamorgan.
The offences occurred at the boarding house of Glamorgan, mostly in the applicant’s living quarters, which were situated on the school premises. The boarding house was a small, two-storey building separate from the school but still on school grounds. It was separated into two halves, one occupied by the students and the other being the applicant’s living quarters.
The offending constituting charges 1 to 5 was perpetrated against the complainant WN. WN was a student at Glamorgan between 1975 and 1981 and was between 10 and 12 years old at the time of the offending. The applicant was close to WN’s family through the school and through their common interest in art. He regularly visited WN’s family home. WN was a day student, but he and other day students would occasionally sleep in the applicant’s quarters or in the students’ quarters at the boarding house. On some of these occasions, the applicant would watch pornographic films and look at pornographic magazines with the boys while they were drying themselves after showering.
On one occasion, WN was viewing pornography with the applicant and other boys. He asked if he could spend more time looking at the pornography. The applicant agreed, stating that he would come and get WN when the other boys went to bed. After the other boys had gone to bed, the applicant went to WN’s bedroom and took him to his own bedroom, where they looked at pornographic magazines together. The applicant began to caress WN’s back and buttocks. He then licked WN’s nipples and rubbed WN’s penis through his pyjamas. He took WN’s pyjamas off, put WN’s penis into his mouth and performed oral sex on him (charge 1).
On a different occasion, the applicant and WN were in the applicant’s bed, looking at pornographic magazines. The applicant, who was naked, caressed WN’s back, buttocks and penis over the top of his clothing. He licked WN’s nipples and then put WN’s penis into his mouth and performed oral sex on him (charge 2). He then told WN to masturbate the applicant’s penis, which he did.[1]
[1]The applicant was not charged for this act.
On a further occasion, the applicant and WN were in the applicant’s bed looking at pornographic magazines. The applicant caressed WN as he had under charge 2 and licked WN’s nipples. WN masturbated the applicant’s penis. The applicant then placed his finger in WN’s anus (charge 3).
Finally, during rehearsals for a school play, the applicant took some boys including WN out for dinner and then to his living quarters to stay the night. The boys were permitted to look at pornographic magazines after rehearsals finished and again after dinner. The applicant went to WN in the room where the boys were sleeping and suggested he come with him to look at more pornographic magazines. The applicant and WN then sat in the applicant’s bed, looking at the magazines. The applicant rubbed WN’s back, buttocks and penis on top of his clothing. He licked WN’s nipples before placing WN’s penis in his mouth and performing oral sex on him (charge 4). He then placed his finger in WN’s anus (charge 5). The applicant instructed WN to masturbate the applicant’s penis, which he did.[2]
[2]The applicant was not charged for this act.
Charge 6 concerned offending against NY, a day student who was about 12 years old at the time of the offending. The applicant was his grade 6 teacher in 1983. In October 1983, NY’s parents were overseas and he was staying at his aunt’s house. The applicant invited NY to stay over at the school with other boys. These stays took place in the applicant’s living quarters. On one night, the applicant took NY and another boy to dinner. He then took them back to his living quarters and watched them bathe naked. After the bath, the applicant massaged the boys with baby oil while the boys were naked on his bed (charge 6; uncharged as to the second boy).
During the massage, the applicant encouraged NY to imagine he was being massaged by one of the girls that NY liked. The massage focussed on NY’s groin area and the applicant pinched his nipples. NY told the applicant he did not enjoy the massage. The following morning, the applicant offered to have NY stay over again for more ‘fun’ in the future. He offered to give NY special adult literature as long as it was kept a secret. NY informed his aunt what had happened and did not stay over at the applicant’s quarters again.
Charge 7 involved offending against HM, another student in the applicant’s grade 6 class in 1983 who was also aged about 12. HM’s elder brother, NM, had previously spent the night at the applicant’s quarters. HM wanted to do the same, and did so three times. On one occasion not the subject of any charge, the applicant took HM and another boy to a video store and allowed them to pick any videos they wanted, including R-rated videos. They returned to the applicant’s living quarters and began to discuss sexual matters. The applicant asked what sexual experiences they had had. He told them it was normal for them to experiment with other boys. On the charged occasion, HM was by himself. The applicant gave him champagne to drink and then got him to sleep in the applicant’s bed. HM got into bed with pyjamas on. Although HM did not see the applicant, he believed that he was naked. The applicant hugged HM from behind and HM fell asleep in this position.
Charges 8 and 9 concerned NM, who, as mentioned above, is HM’s elder brother and had also spent the night at the applicant’s living quarters. At the time of the offending in late 1983, NM was 13 years old. He was a former student of the applicant and was by this time in year 7 at another school. On one overnight stay, when NM was about to go to sleep, the applicant told him that there was a jar of Vaseline and a box of tissues beside the bed if he wished to masturbate. On another occasion, the applicant asked NM whether he had masturbated and ejaculated. The applicant then started taking pictures of NM and asked him to take his clothes off, which he did, except for his underwear. The applicant continued to take photos of NM, dictating sexual poses that NM should adopt (charge 8).
Possibly on the same night, NM got into the applicant’s bed and the applicant gave him a back massage. NM then turned onto his back, at which point the applicant put his mouth over NM’s penis and performed oral sex on him (charge 9). NM pushed the applicant’s head away, thinking he was about to ejaculate. The applicant made a comment about tasting NM’s semen.
Charge 10 involved offending against the complainant TT between 1 September and 31 December 1983. TT was a grade 6 student aged about 11. The applicant was his home room teacher. TT stayed at the applicant’s living quarters several times. On one occasion, TT stayed the night with another student. The applicant came into the room and encouraged the boys to engage in sexual experimentation. On the next occasion, TT was alone. The applicant and TT went out to dinner and then returned to the applicant’s quarters, where they played a card game similar to strip poker. During the game, the applicant kissed TT on the buttocks. The card game resulted in both the applicant and TT being naked. At the end of the game, the applicant used a ‘wild card’ to dictate that both he and the victim would have to remain naked when they went to sleep in the applicant’s bed, which they did. The applicant used another ‘wild card’ to get TT to massage his back. When TT complied, the applicant started to gyrate and move on the bed. TT could see that the applicant had an erect penis and heard the applicant moaning. At one point, the applicant said that he wanted TT to pretend he was Bo Derek and to make love to him (charge 10). The next morning, when TT got out of the shower the applicant watched him getting dried.
Charges 11 and 12 were committed against YN between 1 October and 31 December 1983. At the time, YN was a student in the applicant’s home room class, aged about 12. On one occasion, YN was in the school sick bay. The applicant went to see YN and caressed his leg and penis over his clothing (charge 11). On another occasion, YN was staying over at the applicant’s quarters, along with HM. The boys looked at a pornographic magazine together. The applicant discussed sex and pubic hair with the boys, before exposing his penis to show them his pubic hair. He asked YN to touch and kiss his penis. YN touched the applicant’s penis. The applicant then took YN’s penis and started to masturbate it (charge 12). The applicant told YN that what had happened must remain a secret.
The applicant was arrested on 12 June 2013. His properties were searched on the day of his arrest. Numerous photos containing images of naked or semi-naked children were found at his holiday home. These photos give rise to charge 13. Some of them appeared to have been taken on a Polaroid camera. The photos were taken some time ago. The photographs were categorised based on the Australian Child Exploitation Material Categorisation Scheme as follows: 87 category 1 images (children under 18 erotically posed or images taken covertly with no sexual activity); and 9 category 2 images (children under 18 involved in non-penetrative sexual activity). The children were generally teenage boys and there were no children under the age of 10.
Police interviews
When first interviewed by police, the applicant remembered WN, among other boys who he said had stayed at his quarters from time to time. He also remembered details about their parents, stating that there was a very close relationship between staff and parents at the school. He said that his relationship with all the students was very close and that he had taken a fatherly interest in them. He said he could not recall any sexual activity, and certainly nothing that he was involved with and no penetration, but just ‘a lot of kind of playful romping around and — and just boys being boys really’. The applicant denied that he had looked at pornographic magazines with boys. He firmly denied having penetrated WN’s anus, licked his nipples or masturbated him. He said that his memory was not so bad that he wouldn’t remember the things that had been alleged.
At a second interview on 1 August 2013, the applicant was asked about the photos that had been discovered. He accepted that it was possible that he had taken photographs of boys when they were naked, but did not recall doing so. He recalled the names and personal details of several boys whose photographs he was shown.
At a third interview on 27 February 2014, the applicant said that, if there had been any inappropriate kind of touching when boys stayed over, his memory of it was just a blur. He said that he and the boys were all playing together and he thought it was totally innocent at the time but that maybe some of the things they were doing were ‘kind of getting close’ to the sort of thing that is now read about in the papers; but it was too long ago to remember. The applicant said that he accepted that the complainants had been upset or disturbed in thinking about what happened and he ‘couldn’t be sorrier’ and would hate to think that anything that happened back then had affected their lives in any way.
The applicant said he did not recall exposing himself to children and denied that any of the boys ever slept in bed with him. He recalled cuddling and touching the children a lot, including giving them back massages, but said he could only generalise because his memory was blurry. He did not recall giving any child alcohol. He thought he may have kept pornographic magazines in the spare bedroom. He agreed he had given NY a back massage but did not think NY had been naked. He did not know if he had pinched NY’s nipples and did not recall asking NY to imagine girls he liked during the massage. He agreed he had discussed sex and masturbation with NM and said he may have given him a back massage. He denied asking him to take off all his clothes to be photographed but did take photos of him in his underwear. When asked if he had performed fellatio on NM he said he didn’t remember doing so but was not going to absolutely flatly deny it and if it did happen, it should not have. The applicant said he may have given TT a back massage and had no memory of the alleged offending but was greatly surprised at the allegations. He was never naked with any of the boys. He said he did not really recall YN and had no memory of touching his penis in the sick bay. He also could not recall exposing himself to YN and said he could not imagine having done so. He did not recall asking YN to kiss his penis and denied that YN had touched his penis or that he had masturbated YN’s penis; he was sure he would remember if it had happened.
At the end of the interview, the applicant said that there had been a lot of physical contact with boys, including back massages, but he did not recall going into the kind of specific territory with which the allegations were concerned. He said that his memory was a bit of a haze but that he was probably too close to the children and allowed things to happen that now seem inappropriate. He said that he now saw that some of what he was doing or suggesting to the children that they should be doing was inappropriate and that he was deeply sorry that he had hurt any of them. He was sorry for any harm or distress that he had caused anybody as a result of this period of his life.
Plea hearing
The applicant pleaded guilty prior to committal mention.
The applicant was 74 years old at the time he was sentenced. He was brought up in country Victoria. He was a gifted student and did well at school, although he had few friends. He completed a Diploma of Fine Art and later completed postgraduate studies in fine arts overseas. He was the recipient of a number of travelling scholarships and awards.[3]
[3]DPP v Buckley (Unreported, County Court of Victoria, Judge Patrick, 11 September 2015) [26] (‘Reasons’).
The applicant worked as a teacher between 1961 and 1983, first at Geelong Grammar’s Corio campus between 1961 and 1967, before completing a Bachelor of Education in Vancouver between 1970 and 1972. He taught at Glamorgan between 1979 and 1983. Following the end of his career as a teacher, the applicant had enjoyed a distinguished career in the arts, working as a curator, art consultant, academic and gallery owner.
On the hearing of the plea, the applicant tendered a report from a clinical and forensic psychologist, Mr Patrick Newton. Mr Newton also gave evidence at the hearing. The report stated that the applicant identified predominantly as homosexual and that, while the applicant was aware of his sexuality at quite a young age, he had to hide it due to the social stigma associated with it. He had his first sexual relationship at about 30, and did not have any stable relationships until he was well into his forties. The applicant’s main relationship took place in the late 1980s and lasted for about a year. Since then, he had had several relationships, albeit none that were long lasting. He had a large group of friends. The report stated that the applicant was sexually immature and naïve well into his adult years and that he was concerned about his adequacy and feared rejection if people were made aware of his sexual orientation.
Mr Newton’s report continued that the applicant had developed symptoms of anxiety and depression in response to the case, which meant that he suffered from an adjustment disorder with mixed anxiety and depressed mood. The report opined that the applicant would probably experience deterioration in his mental state if he were imprisoned.
The report stated that the applicant’s insight into his action had ‘developed over the course of our consultations. While [the applicant] initially rationalised his actions as having been part of a friendship with the complainants, he has ultimately come to understand the harm he has caused’. He had come to demonstrate empathy for the complainants and understood that his behaviour was wrong. Altogether, the report found that the applicant’s risk of recidivism was low.
In oral evidence, Mr Newton stated that the applicant’s insight into the offending was a ‘work in progress’. In cross-examination, Mr Newton stated that it had taken the applicant some time to understand the wrongfulness of his conduct; it was not a ‘blinding light … of insight suddenly dawning upon him’.
Sentencing remarks
In her sentencing remarks, the judge stated that the applicant’s conduct was absolutely wrong and that he knew that at the time. It was for that reason that he took steps to stop people from finding out about it. The children were in the applicant’s care and were vulnerable. The applicant manipulated them to get them to engage in sexual conduct. His behaviour, the sentencing judge said, ‘was disgraceful, repeated, predatory, often planned and extremely serious both in what [he] did and the context in which [he] did it’.[4] The applicant’s moral culpability was ‘very high’.[5]
[4]Ibid [57].
[5]Ibid.
The sentencing judge found that, while the applicant may have felt some remorse at the time of sentencing, at the time of the offending he was ‘not in any way remorseful’, nor was he remorseful when interviewed by police.[6] He had attempted to minimise his wrongdoing. The sentencing judge found it difficult to understand the lack of remorse, given how much time had elapsed since the offending.
[6]Ibid [59].
The applicant was entitled to a significant discount for his pleas of guilty, both on a utilitarian basis and because he was ‘remorseful to a certain extent’ when he entered his plea.[7] The sentencing judge accepted Mr Newton’s evidence that the applicant’s insight into his wrongdoing had increased considerably since he had been interviewed by police.
[7]Ibid [60].
The judge found that significant rehabilitation had taken place and that there was a relatively low risk of the applicant re-offending. Specific deterrence was not required to be given weight in sentencing the applicant.[8] However, the judge noted that, because the applicant was a serious sexual offender in respect of charges 3 to 13,[9] protection of the community (by way of general deterrence) was a ‘principal purpose’ for which the sentence would be imposed on him.[10]
[8]Ibid [62].
[9]See Sentencing Act 1991 s 6B.
[10]Reasons [24], [66].
The judge said that, given that the applicant had reached ‘an advanced age with associated physical health issues’ by the time of sentencing, a crushing sentence ought to be avoided.[11] In the circumstances, however, a term of imprisonment with a non-parole period was the only appropriate sentence.[12]
[11]Ibid [63].
[12]Ibid [65].
The sentencing judge stated that she had set a shorter non-parole period than she would have otherwise in light of the matters in mitigation, the applicant’s age and his prospects of rehabilitation.[13]
[13]Ibid [68].
Proposed ground 3 — age
It is convenient to consider first the specific error alleged by the applicant in respect of the significance to be attached to his age. As noted, the applicant was 74 years old at the time of sentence. Taking account of pre-sentence detention, his sentence is due to expire shortly after he turns 82.
The applicant submitted that the judge overlooked the fact that ‘each year of the sentence represent[ed] a substantial proportion of the period of life which is left to [the applicant]’.[14] It had been submitted on the plea hearing, and accepted by the Crown, that this was a ‘weighty matter’. Counsel submitted that the sentencing judge had made references to the applicant’s age and the need to avoid a ‘crushing’ sentence, but had not taken this specific consideration into account.
[14]R v Hunter (1984) 36 SASR 101, 103 (King CJ).
The applicant relied on R v RLP, in which this Court set out a number of propositions concerning the sentencing of offenders of advanced years.[15] Two of those propositions were as follows:[16]
[15](2009) 213 A Crim R 461, 476 [39] (Neave and Redlich JJA, and Hollingworth AJA) (‘RLP’).
[16]Ibid (citations omitted).
3. Depending upon the circumstances, it may be appropriate to impose a minimum term which will have the effect that the offender may well spend the whole of his remaining life in custody.
4. It is a weighty consideration that the offender is likely to spend the whole or a very substantial portion of the remainder of their life in custody.
It was submitted that the judge had taken account of proposition 3 but overlooked proposition 4. Counsel submitted that proposition 4 went beyond a consideration of whether a sentence is ‘crushing’, which was directed to the related but different question whether the sentence would destroy any reasonable expectation of useful life after release.[17]
[17]Azzopardi v The Queen (2011) 35 VR 43, 63 [69] (Redlich JA; Coghlan and Macaulay AJJA agreeing); R v Yates [1985] VR 41, 48 (Young CJ, Starke, Crockett and Hampel JJ).
The respondent submitted that the sentencing judge was acutely aware of the need to avoid imposing a crushing sentence in light of the applicant’s age, and that she specifically took it into account when fixing a shorter non-parole period than she would otherwise have done.[18] Counsel submitted that propositions 3 and 4 in RLP both reflect aspects of the same principle, namely that a sentencing court must consider whether or not the sentence imposed will be ‘crushing’ in the sense that it would destroy any reasonable expectation that the offender might lead a useful life after release. It was not submitted that the present case was one where, as contemplated in proposition 3, a ‘crushing’ sentence was appropriate. Rather, the respondent submitted that the judge had given proper consideration to propositions 3 and 4 by applying the above principle.
[18]See Reasons [68].
In our opinion, proposed ground 3 is not made out. Once it is accepted that the judge considered, as she did,[19] whether the sentence she imposed would destroy any reasonable expectation of a useful life after release, it must follow that she simultaneously took account of the proportion of the applicant’s expected remaining life which the sentence represented. Put differently, the reason why it is a ‘weighty consideration’ that an offender is likely to spend a very substantial proportion of the rest of his or her life in custody is that such a sentence may be apt to be crushing. But that does not mean that the sentence is, on that account, not appropriate. Proposition 3 in RLP recognises that it may be appropriate, in a particular case, that a ‘crushing’ sentence be imposed.
[19]See ibid [66]: ‘I have also taken into account … the need to avoid a crushing sentence’.
Because it was inherent in the judge’s consideration of the need to avoid a crushing sentence that she took account of the fact that the applicant is likely to spend a significant proportion of the rest of his life in custody,[20] proposed ground 3 should be rejected.
[20]For these purposes, it is the total effective sentence, irrespective of the prospect of earlier release from custody, that is relevant: R v Yates [1985] VR 41, 45–6 (Young CJ, Starke, Crockett and Hampel JJ).
Proposed ground 1 — manifest excess
In relation to manifest excess, the applicant in his written submissions listed a number of particulars: his age; his early guilty plea; his remorse; his physical and mental health; his lack of prior convictions; and the lack of any need for specific deterrence. Counsel amplified the written submissions and made particular reference to the applicant’s rehabilitation and the significant utilitarian benefit of his plea of guilty. Reliance was again placed on the applicant’s age. Little was said about the applicant’s alleged remorse, counsel noting only that there was ‘some’ remorse.
The applicant pointed out that the sentences for charges 1 to 5 represented half of the maximum penalty applicable, together with what was said to be very significant cumulation. It was observed that the sentence for charge 9, a later offence for which a much larger maximum penalty applied, was less than a quarter of the maximum penalty. The conduct constituting charge 9 was said to be almost identical to that constituting charges 1, 2 and 4. The fact that the sentence on charge 9 was so much smaller a proportion of the maximum demonstrated that the sentences on charges 1, 2 and 4 were manifestly excessive. Additionally, the sentence on charge 9 was itself manifestly excessive.
The sentence on charge 7 was also said to be manifestly excessive. The conduct constituting the charge was said to amount to no more than a clothed hug in bed. A sentence of 4 months, with 2 months’ cumulation, was wholly outside the discretion available to the judge.
Further, the applicant submitted that the total effective sentence was manifestly excessive. The following additional matters were relied on in support of this contention:
(a)the cumulation on the sentences for each of charges 4 and 5 was 8 months — the largest amount of cumulation imposed — when the offending on these charges concerned the same victim and was part of the same course of conduct;
(b)50% of the sentences on charges 6 and 7 were cumulated; and
(c)40% of the sentence on charge 12 was cumulated, when charge 12 involved the same victim as charge 11.
The respondent submitted that the offending was objectively very grave. The victims of his actions were young and vulnerable. They were in the applicant’s care at the time of the offending, which represented a gross breach of trust. The applicant had used manipulative behaviour, including the use of alcohol in one instance, to get the complainants to engage in sexual conduct, and had taken steps to ensure he was not found out by asking victims to keep secret what had occurred.
It was submitted that the sentencing judge gave appropriate weight to all mitigating circumstances. The orders for cumulation were moderate in light of the number of offences and the number of victims. Overall, the sentences were said to be unexceptional and the total effective sentence to be very moderate and only explicable by reference to the applicant’s age. At the very least, it could not be said to be wholly outside the range available to the sentencing judge.
To establish the ground of manifest excess the applicant must show that something has gone obviously, plainly or badly wrong. The sentence imposed must be wholly outside the range of sentencing options available.[21]
[21]See, eg, Clarkson v The Queen (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); Binse v The Queen [2016] VSCA 145 [57] (Whelan, Beach and McLeish JJA).
The applicant was sentenced for very serious offending that reflected an appalling abuse of his position of trust as a teacher and carer of the children against whom he offended. He engaged in calculated manipulation to pursue his own sexual gratification on repeated occasions. The judge rightly described his moral culpability as very high. In so far as the offending constituted indecent assault, it was a very serious type of that offending. As the sentencing judge observed, penetrative activity of the kind in which the applicant engaged, had it taken place in later years, would have attracted a much higher penalty.[22] In that regard, the sentence imposed on charge 9 was higher than that imposed for comparable conduct under charges 1, 2 and 4 because intervening legislative change made such conduct punishable by up to 15 years’ imprisonment, rather than 5 years.[23]
[22]Reasons [65].
[23]Crimes Act 1958 ss 48(1), 48(3), as amended with effect from 1 March 1981 by the Crimes (Sexual Offences) Act 1980. As to later legislative change, see especially the Crimes (Sexual Offences) Act 1991.
The applicant submitted that a comparison of the sentences on those comparable charges showed that the sentences on charges 1, 2 and 4 were manifestly excessive. It might just as well be said that the comparison reveals that the sentence on charge 9 was a moderate one. Of itself, the comparison is not of assistance. As to the sentences taken alone, the criticism that is made of those for charges 1 to 5 centres on the fact that they each represents one half of the maximum penalty. Especially considering the applicant’s early guilty plea and his age, it is difficult to accept the respondent’s submission that the sentences were very moderate. The applicant established a successful career after the offending and his rehabilitation was successful to the extent that specific deterrence was not a factor in his sentencing. But these mitigating factors did not demand a sentence less than half the maximum applicable for the serious offending involved. Both the nature of the physical acts constituting the indecent assaults and the gross breach of the trust of the victims and their families which they entailed warranted stern punishment. These sentences cannot be described as manifestly excessive.
The respondent submitted in this context that, because the same offending if it occurred today would attract a much higher penalty, the sentencing judge was justified in ‘firming up’ the sentences for offences against the historical provisions.[24] The authorities on which the respondent relied for this submission concerned the former maximum penalty for the offence of negligently causing serious injury, which the court observed was out of kilter with the maximum penalties for related offences. It was for that reason that sentences for negligently causing serious injury at that time could be ‘firmed up’ where appropriate. It may be doubted whether these authorities support the submission made. The observations in question were directed to an anomaly within the legislation applicable to the relevant offending. They may not apply to a case such as the present, where there is no such anomaly, but rather a subsequent legislative change to the relevant penalties. Moreover, the respondent’s approach might be thought to pay insufficient regard to the legislature’s intention as manifested in the applicable maximum penalty. However, it is not necessary to decide this question, because on any view the sentencing judge was entitled, and required, to sentence the applicant by reference to the applicable maximum penalty at the time of each offence, in accordance with contemporary understandings as to the seriousness of the relevant offending. In the circumstances, there was no need to ‘firm up’ the sentences, nor did the judge indicate that she was doing so in the manner submitted.
[24]R v Brown (2003) 39 MVR 293, 296 [9] (Callaway JA; Winneke P and Vincent JA agreeing). See also DPP v Albert (2010) 203 A Crim R 1, 6 [17]–[19] (Harper JA; Buchanan JA and Habersberger AJA agreeing); R v Fackovec [2007] VSCA 93 [37] (Nettle JA; Vincent and Eames JJA agreeing).
The applicant contended that the orders for cumulation were themselves excessive. In particular, it was submitted that the orders for cumulation on charges 1 to 5 revealed manifest excess. These offences involved the same victim and two of them occurred, it was said, in the same course of conduct. But as the respondent submitted, the total cumulation on these charges was 2 years and 10 months. The difference in amounts for charges 1 and 2, compared to the later charges, reflected the fact that, on those later charges, the applicant was sentenced as a serious sexual offender and cumulation was to be assumed.[25] It cannot be said that this level of cumulation, for repeated very serious offending against the same victim, discloses manifest excess. Nor is anything to be gained by looking at the individual levels of cumulation for other offences. None of them stands out as being excessive.
[25]See Sentencing Act 1991 s 6E.
The ultimate question is whether the total effective sentence was outside the available range. It is not to the point that it may have been open to the judge to impose a lower sentence than she did. In the end, when regard is had to the serious nature of the offending and the very high moral culpability of the applicant, it was inevitable that he should be sentenced to a very substantial term of imprisonment. The strong mitigating factors present in his case, to which the judge had regard, necessarily served to reduce that sentence. It is plain that serving a substantial sentence of imprisonment will be onerous for the applicant, especially (but not only) by reason of his age. On the other hand, the sentence will run until shortly after the applicant turns 82. It cannot be said, and the applicant did not in terms submit, that the sentence leaves him without a reasonable possibility of leading a useful life after his release. The truth is that, had the applicant been apprehended at a younger age, the sentence would have been appreciably longer.
For these reasons, the applicant has failed to make out the case for manifest excess. While leave should be granted in light of the difficult sentencing decision which the case presented, the appeal must be dismissed.
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