C G T v The Queen (No 2)

[2012] VSCA 23

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2007 0955A

CGT
	Appellant
v
THE QUEEN (No 2)	Respondent

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JUDGES:	NEAVE and HARPER JJA and HOLLINGWORTH AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 February 2012
DATE OF JUDGMENT:	23 February 2012
MEDIUM NEUTRAL CITATION:	[2012] VSCA 23
JUDGMENT APPEALED FROM:	R v [CF and CGT] (Unreported, County Court of Victoria, Judge Wilmoth, 18 December 2007)

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CRIMINAL LAW  – Sentence – Six counts of maintaining a sexual relationship with a child under the age of 16 – Offending committed with appellant’s wife over a four year period against the appellant’s two stepchildren – Plea of guilty – Sentenced to imprisonment for 14 years with a non-parole period of 10 years – Appellant aged 67 at the time of sentence – Whether sentencing judge erred in failing to give adequate consideration to the appellant’s age and plea of guilty – Parity – Differences in roles of husband and wife – Whether sentence manifestly excessive – R v Hunter (1984) 36 SASR 101, R v Yates [1985] VR 41 and R v Bazley (1993) 65 A Crim R 154 – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr D D Gurvich	Michael J Gleeson & Associates
For the Crown	Mr B L Sonnet	Mr C Hyland, Solicitor for Public Prosecutions

NEAVE JA
HARPER JA
HOLLINGWORTH AJA:

Background

1. On 31 May 2007, the appellant pleaded guilty to six counts of maintaining a sexual relationship with two children under the age of 16 to whom he was not married.  One child was his stepdaughter.  I shall refer to her as ‘C1’.  The other was her brother, ‘C2’.  Two of the first four counts nominated C1 as the victim;  the other two nominated C2.  Each such count related to a calendar year, and together they covered the period 1 January 2002 – 31 December 2003.  Count 5 nominated C1 as the victim, and covered the period 1 January 2004 – 31 December 2005.  Count 6 covered the same period, with C2 as the nominated victim.

1. The plea was followed by a series of convoluted steps.  On 21 September 2007, the appellant applied to change his plea to that of not guilty.  On 1 October, that application was withdrawn.  On 18 October, following a trial which began 10 days before, a jury returned a verdict of guilty on multiple charges laid against the appellant’s wife, to whom we shall refer as CF, for offending which was directly linked with his.  The pleas of both husband and wife were heard together on 19 November and 6 December 2007.

1. Sentence was pronounced on 18 December 2007.  By the orders then made, the appellant was required to serve 6 years’ imprisonment on each of the six counts to which he had pleaded guilty.  Count 1 was the base sentence; and the sentencing judge ordered that the 6 years to be served on that sentence be cumulated with 4 years of the sentence on count 4 and 1 year on each of the remaining four sentences (counts 2, 3, 5 and 6).  The result was a total effective sentence of 14 years’ imprisonment.  Her Honour ordered that the appellant serve a minimum of 10 years before being eligible for parole. 

1. The maximum sentence for maintaining a sexual relationship with a child under the age of 16 is 25 years’ imprisonment.

1. The total effective sentence imposed upon the appellant’s wife was imprisonment for 12 years.  She was ordered to serve eight years before becoming eligible for parole.

1. On 24 December 2007, the appellant lodged an application for leave to appeal against sentence.  Ashley JA granted this application on 14 November 2008.  Then, on 10 March 2010, three years and four months after being sentenced, the appellant made two further applications.  The first of the two was an application for leave to appeal against the appellant’s conviction on the charges to which he had pleaded guilty.  The second was an application to extend the time within which to make the first.  Of course, success was predicated upon the Court allowing the applicant to change his plea. 

1. The two applications, together with the appeal against sentence, came before this Court on 10 February 2012.  The application for an extension of time, and with it the application for leave to appeal against conviction, were – for reasons delivered that day – each refused.  These are our reasons for rejecting the appeal against sentence.

The grounds of appeal against sentence

1. This appeal is supported by four grounds.  The first is that the sentencing judge failed to give adequate consideration to the appellant’s age.  The second is that her Honour similarly gave inadequate consideration to the appellant’s plea of guilty.  The third is that the judge failed to properly apply the principle of parity.  And the fourth is that the total effective sentence is manifestly excessive.

The gravity of the offending

1. The appellant’s crimes were described in detail by the sentencing judge in her reasons for sentence.  It is fortunately unnecessary to repeat that exercise.  It is sufficient to say that the appellant presided over a terrible catalogue of indecent acts with the two victims.  His wife was present during each episode.  One or other or both of the adults physically participated in each save the last.  Sometimes the victim was C1, sometimes it was C2, and sometimes it was both - even if only as a witness to what was being done to, or required to be done by, the other.  Incest was frequently the object of the exercise.  This serious, systematic abuse culminated with brother and sister, in the presence of their mother and stepfather, being procured to have oral sex with each other. 

1. In short, the two adults despoiled their children for their own pleasure over the four years between January 2002 and December 2005; and when it began, the children were, respectively, 11 and 12 years old.

1. Sometimes the gravity of particular offending is such as to greatly reduce the significance and weight of the mitigatory considerations.  It is important that, even when the factors in mitigation are powerful, sentencing judges faced with cases of very serious criminality do not in the process of instinctive synthesis diminish the significance of such offending.  No matter what the mitigatory circumstances, serious examples of the gravest crimes will sometimes deserve stern punishment,.  This is not to say that that which is mitigatory can be ignored.  But, having been properly considered, it may on occasion be necessary to give such circumstances little or no weight.  As King CJ said in R v Hunter, ‘[t]he basic concepts of justice which underlie the criminal law require that punishment be fairly proportionate to the crime in accordance with prevailing standards.’[1]

   [1](1984) 36 SASR 101, 103.

Ground 1

1. This is a case in which particular care must be taken to ensure that matters properly put in mitigation of penalty do not obscure the importance of imposing a sentence which is fairly proportionate to the crime.  In this case, a significant mitigatory consideration, to which ground 1 properly directs attention, is the fact  that the appellant, who was 67 years old when he was sentenced, will be 81 years old when his sentence expires.  He may, therefore, die in gaol.  Even if he is granted parole on the first available date, he will be 77 upon his release.  And the law has long recognised that, just as crushing sentences should be avoided if possible, so an offender should – if considerations such as mercy allow – be released in time to experience some freedom before death.

1. The fact of the appellant’s age cannot, therefore, be ignored.  But nor must it be allowed to trump the fact that he is guilty of terrible crimes against those in his care, who he exploited for the most selfish of reasons.  To refer to another point made by King CJ in his judgment in Hunter, the time required to be spent in prison must be adequate punishment for the crime which the appellant has committed.[2] 

   [2]R v Hunter (1984) 36 SASR 101, 103;  R v Cumberbatch (2004) 8 VR 9, 13 [11].

1. Thus, although the majority of the Full Court in R v Yates[3] defined a ‘crushing sentence’ as one which connotes ‘the destruction of any reasonable expectation of useful life after release’, Murphy J (who was in that case in the minority, but not on this issue) could accurately observe that the fact that a sentence is crushing ‘cannot be … determinative of the real issue, which is whether the sentence is appropriate to the crime having regard to all the circumstances’.[4]  Consistently with this, in R v Bazley[5] the Court of Criminal Appeal said:

Whilst doubtless the definition [of ‘crushing’ in Yates] may be accepted as accurate, it by no means follows that every sentence must be such as to avoid such [a] … description.  The age of an offender is no doubt a relevant sentencing consideration.  It may in some cases be of considerable significance.  But it cannot be allowed to be a justification for the imposition of an unacceptably inappropriate sentence.

[3][1985] VR 41, 48.

[4]Ibid 49.

[5](1993) 65 A Crim R 154.

1. The sentencing judge was, of course, aware of the age of the present appellant.  Her Honour referred to it at [50] of her sentencing reasons, although she there merely recorded the fact that the appellant was ‘now aged 67’.  The topic was not otherwise mentioned in those reasons, and so it cannot be known what weight her Honour gave to it as a sentencing consideration.  But since the sentences imposed upon the appellant were, given the gravity of the appellant’s offending, well within the appropriate range, we would not order a different sentencing disposition even if we were satisfied that the age of the appellant had not been adequately taken into account.  In our opinion, this is not a case in which a different sentence to that which was imposed could be justified on that ground.

1. Ground 1 therefore fails.

Ground 2

1. A like fate must be accorded to the second ground of appeal.  The appellant’s guilty plea was, as his conduct has clearly indicated and as is confirmed in the report of Patrick Newton (the clinical and forensic psychologist to whom the appellant was referred), inspired by neither victim empathy nor remorse.  It therefore presents as a mitigating circumstance only in that it spared the victims the emotional, and the public the financial, cost of a trial – though the children were in any event required to give evidence in the trial of their mother (not a matter for which the appellant can take any blame).

1. The mitigatory force of the plea is thus limited.  Nevertheless, the sentencing judge said in her reasons for sentence that the plea ‘carries significant weight and [the appellant] must be given due credit for it in the form of a discount for saving the expense of a trial to the advantage of the criminal justice system.’[6]  There is in our opinion, no room for any further reduction in the appellant’s sentence on the basis of his guilty plea.

   [6]Reasons for sentence, [54].

1. Ground 2 therefore fails.

Ground 3

1. The third ground of appeal raises the issue of parity as between the appellant and his wife.  The sentencing judge imposed a total effective sentence upon the appellant that was two years longer than that imposed upon CF.

1. In our opinion, this differential is not one about which the appellant can with justification complain.  It was he who presided over, and orchestrated, the conduct which constituted the offending.  Having heard relevant sworn evidence, and taken into account matters put to her from the Bar table, her Honour the sentencing judge was satisfied beyond reasonable doubt that the appellant:

dominated his wife to the extent that it made a significant contribution to her offending.  Were it not for his instigation, combined with his dominance at a level higher than a mere imbalance between an older man and a much younger woman in poor health, she would not have offended.[7]

[7]Reasons for sentence, [44].

1. These findings were amply justified.  The appellant is 31 years older than his wife.  The evidence of the children was that their step-father initiated the sex sessions – on the pretext that this would bring the family closer together.  CF’s evidence was that she never engaged in the impugned activities, save in her husband’s presence and at his importuning, and was uncomfortable with much, if not all, that happened as those activities took their course.  It is true, as is pointed out in the written case prepared on the appellant’s behalf, that he pleaded guilty to six charges, whereas CF’s presentment contained 38.  That, however, was a consequence of the way the offending of each was finally pleaded, rather than being a reflection of their differing involvement or moral turpitude.  He was initially charged with 43 counts, which appear to have subsequently been reduced, as part of an accommodation between the parties, to the present six.  The sentencing judge was, it seems to us, fully entitled to conclude that the moral turpitude of the appellant exceeded – by some distance – that of his wife.

1. In the opinion of Dr Lester Walton, the consultant psychiatrist who examined her, CF is not a paedophile, and is unlikely to re-offend.  It is true that, in Dr Walton’s opinion, she knew that what she was doing was wrong, and her participation is partly attributable to her having little empathy with her children.  But these considerations apply equally to her husband.  And, of course, she pleaded not guilty – with the inevitable consequence of a trial during which her children gave evidence and were cross-examined by her counsel – although the field covered was limited.  Cross examination was restricted to that necessary to make good, to the maximum possible extent, the proposition that the appellant was the primary instigator of the offending. 

1. On the other hand, CF showed some remorse, whereas the appellant has shown only a continuing determination to blame everyone save himself.

1. There has in the sentencing dispositions ordered by her Honour been no infringement of the principle of parity.  Ground 3 therefore fails.

Ground 4

1. The final ground of appeal is that the sentence imposed upon the appellant is manifestly excessive.  It is submitted in support of this ground that the significant matters in mitigation are such as to justify this ground being upheld.  First, the appellant pleaded guilty.  Secondly, his criminal record is of limited if any relevance.  Only one matter even warrants a reference: he breached a non-intervention order and was fined without a conviction being recorded.  Thirdly, he endured a dysfunctional childhood.  Fourthly, he is likely to serve his sentence in protection.  Fifthly, her Honour found that his time in prison will be made more onerous because his mental state is, according to Mr Newton, somewhat precarious.  And, finally, his age is of course a mitigating circumstance.

1. These factors are however counterbalanced by some important considerations.  One is that the appellant fell to be sentenced in the context of evidence of numerous uncharged acts.  This is a circumstance which adds to the gravity of the offending upon which the counts of maintaining a sexual relationship were based.  Another is that the appellant was, in relation to all but the first two counts, sentenced as a serious sexual offender.  Accordingly, the scope for applying the totality principle is more limited than it is for offenders who are not in that category.[8]  When these matters are coupled with the gravity of the offending, the sentences imposed upon the appellant can in our opinion be properly seen as appropriate.

   [8]R H McL v The Queen (2000) 203 CLR 452, 477 [76].

1. We would for these reasons not uphold this ground.  We would also dismiss the appeal.  

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