Caulfield (a pseudonym) v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0071

EDWARD CAULFIELD (A PSEUDONYM)[1]	Applicant
v
THE KING	Respondent

[1]To ensure that there is no possibility of identification of the victim of the sexual offences, 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, NIALL and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	3 April 2023
DATE OF JUDGMENT:	6 April 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 76
JUDGMENT APPEALED FROM:	DPP v Caulfield (a pseudonym) (County Court, 10 May 2022)

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CRIMINAL LAW – Leave to appeal – Sentence – Sentencing judge spoke to persons who provided victim impact statements while applicant not able to see or hear courtroom – Whether fair minded observer might apprehend judge might not bring impartial mind to imposition of sentence – Judge should not have made remarks in absence of applicant – No lesser sentence should be imposed – Leave to appeal granted – Appeal dismissed.

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Counsel
Applicant:		Mr A Pyne
Respondent:		Mr L McAuliffe
Solicitors
Applicant:	Slater & King Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

BEACH JA
NIALL JA
KAYE JA:

The applicant pleaded guilty in the County Court to eight charges of sexual offending. Seven of those charges involved sexual offending, including incest, against his young granddaughter. The eighth charge concerned the possession of child abuse material.
The offending against his granddaughter occurred over three years when the complainant was between four and seven years old. The offending was extremely grave and a substantial period of imprisonment was inevitable.
A brief synopsis of the offending is necessary in order to explain our reasons.
The offending occurred in regional Victoria. At the time of the first offence, the complainant, to whom the judge referred using the pseudonym ‘Alice’, was four years old. Alice’s father had separated from her mother and had gone to live with the applicant. Alice’s father had joint custody and Alice stayed with her father and the applicant intermittently.
On the first occasion, Alice saw the applicant crying in his room and came to console him. The applicant put his arm around her and put his hands down her pants and putting his fingers on her clitoris and rubbing in a circular motion (charge 1 — incest).
On the second occasion, the applicant licked the complainant’s genital area. This was a representative count, covering 15 such incidents (charge 2— incest). Charges 3 (incest) and 4 (indecent act with or in the presence of a child under 16) involved the applicant inserting his finger into the complainant’s vagina (whilst watching pornography) and then having her masturbate him. The judge noted that the applicant believed someone was nearby and directed the child to quickly dress and not say anything.[2] Charge 5 (incest) involved the applicant having the complainant select a pornographic film, placing her on his lap and inserting his finger in her vagina. The applicant then had the complainant masturbate him to ejaculation (charge 6 — indecent act with or in the presence of a child under 16).
[2]DPP v Caulfield (a pseudonym) (County Court, 10 May 2022), [15].
When the child was 6 years old, the applicant took her camping. While away, the applicant inserted his penis into the child’s mouth and ejaculated into her mouth (charge 7 — incest).
Sometime later, the complainant disclosed the offending to her family. Her father confronted the applicant when he was recuperating from a stroke. The conversation was surreptitiously recorded. In that conversation the applicant admitted to some of the offending, said it was some consolation that it was he who had stopped it and that it had not gone ‘past a certain point’.
In summary, the applicant pleaded guilty to five charges of incest (charges 1, 2, 3, 5, 7) and two charges of committing an indecent act with or in the presence of a child under the age of 16 years (charges 4 and 6). Charge 2 was a representative count. A number of uncharged acts of a similar ilk were also admitted. Incest carries a maximum penalty of 25 years’ imprisonment and the indecent act charges have a maximum penalty of 10 years’ imprisonment.
A plea in mitigation of sentence was held on 28 April 2022 and the sentence was imposed on 10 May 2022.
During the course of the plea, victim impact statements were read in open court. Victim impact statements were prepared by the complainant, her mother and father and another family member. Immediately after they were read, the judge said:
Can I just observe for all of the people sitting in what’s usually our jury box there I understand the concern about what's just been called stigma, but none of you should understand in any way that this is any responsibility other than the offender’s responsibility. It’s just not and your situation is sadly not that unusual in the community — sadly. All right, so I understand that each of you feels in some way that this is, you know, a shame on the family; it’s not, it’s just not.
I sit in this court frequently dealing with matters such as this. It’s not unusual. I hate to say that. It’s not unusual and any informed members of the community who understand what this sort of offending is really about would not consider that a stigma attaches to anybody except the offender.
At the conclusion of the plea the judge reserved her decision on sentence. At the imposition of sentence the applicant was represented by Counsel, as he had been on the plea, and having been remanded in custody after the plea, appeared by way of audio visual link from prison.
In her reasons for sentence, which as is conventional were delivered orally in open court and directed to the applicant, the judge traversed the facts and expressed her assessment as to the gravity of the offending.
In terms of the gravity of the offending the judge observed that the applicant was in a trusted position, the complainant was young and vulnerable and ‘powerless to stop [the offending], or even comprehend the seriousness and horrible nature of the acts’.[3] Apart from the first occasion which the judge was prepared to accept was opportunistic, the offending was planned and involved an egregious and continuing breach of trust. The judge described the physical acts of penetration as serious examples of sexual penetration.
[3]Ibid [27].
The judge said this about the victim impact statements:[4]
Victim impact statements were prepared by the direct victim, your granddaughter and her father, your son, and mother and maternal grandmother. I apologise to all of them for calling them victims in these proceedings. That is what the Act says. It seems to me they have, through their own strength, survived the most terrible crimes against each child in their family.
Each statement is impressive in its own way. The Crown do not suggest that the consequences to the subject of this offending, or indirectly to the extended family, can be seen as an aggravating circumstance, but it reminds the court of the usual and frequent effects of offending such as this, and the — as is reflected in the very significant maximum penalties. I commend each of the victims for their courage in making their statements and the courage that it took to come to court.
[4]Ibid [34]–[35].
The judge then turned to the applicant’s personal circumstances, including that he was then 63 years of age and suffered some significant health deficits following a stroke two years earlier. He requires a wheelchair to get around and has limited mobility. He is socially isolated. He has a history of childhood abuse including being the victim of sexual abuse when he was 12. The judge noted that it was not suggested that this history was in any way causative of the offending. The evidence showed the applicant suffered from a major depressive disorder and post-traumatic stress disorder. The judge accepted that his physical and mental state will render incarceration more onerous when compared with a person without those deficits.
A short time later, as the judge was reading her reasons, the connection with the prison was lost and the applicant was no longer able to see or hear what was occurring in the courtroom. Rather than immediately adjourning the Court to allow the connection to be re-established, the judge took the opportunity to speak directly to the persons who had provided victim impact statements. The judge said:
There was something that I wanted to say to the so-called victims who are on screen and in court today that has got nothing to do with the sentence, nothing whatsoever to do with the sentence.
But I’ve read your victim impact statements and I notice that — and again, I apologise for calling you victims. People are talking about what the word should be: survivors is a word. I don’t know. You choose it yourselves, it’s personal to you, not me. But I did note that a number of you had a view that you were sort of somehow looked down upon by other members of the community or you were afraid about what people might think, all those sorts of things.
Let me put it to you this way: if your entire family was in a minibus and got hit by a drunken driver at an intersection, you wouldn’t feel embarrassed about being a victim of that sort of event, would you? No, not in the slightest. So you ought not feel embarrassed about being the so-called victim of this type of event. You had about as much control over it as you would have at the intersection in the minibus opposite the drunken driver — absolutely none, and you should understand that.
The other thing that you should understand is that events such as this, sexual abuse of children, didn't used to be spoken about a long time ago. It is good that it’s being spoken about now, because people know what really does happen. It happens a lot. For your information, when I was a younger lawyer — and it wasn’t really all that long ago — well, it was a fair while ago, but not all that long ago — and I was appearing in the Family Court, a place where you would expect people to know about such things, I can recall presenting a case to a judge about an event not unlike this, and the judge in the Family Court said, ‘But, Ms Syme, parents don’t do this kind of thing to their children. I don’t believe it’.
Now, it was a little time ago. It wasn’t in this State, it was in another State. I would say that Family Court judge is now retired. But that was the community attitude to events such as this. People didn’t believe it. People now do, people should.
Now, have any of you ever heard of Grace Tame? No? You’ve heard of Grace Tame. You tell them all about Grace Tame, okay? What I would urge you all to do — she was Australian of the Year last year. She was a so-called victim of child sexual assault herself and she came out and told a lot of people not to be ashamed that they were victims.
I would urge you all to put your Grace Tame hat on and to go boldly into the world. This event could not have been discovered without the entire family getting together and telling each other about it and without this gentleman’s son recording that conversation. Everything that everybody did, each of those things, were important in getting you here today. You shouldn’t be ashamed of that. You should be proud of it. That’s all I have to say. Nothing to do with the sentence. It’s my private message to you.
We’ll explain to them why there’s another delay. I apologise. I hope you can come back at 12.30. I can’t finish it, obviously, without the subject of this event here. I tried not to speak too quickly. I didn’t speak quite quickly enough, and I apologise for that. Nothing I can do about it. We’ll adjourn now, 12 at the other matter and 12.30 on this matter. I apologise.
The matter was then stood down and resumed a short time later with the applicant reappearing on line. The judge then proceeded to deliver the balance of her reasons for sentence, which by that point were nearly complete. The judge made no reference to what had occurred in the absence of the applicant.
A sentence of 14 years and 6 months’ imprisonment with a non-parole period of 9 years was imposed. The sentence was structured as follows:

Charge	Offence	Max Penalty	Sentence	Commencement/ Cumulation
1	Incest	25 years	3 years	18 months
2	Incest	25 years	4 years and 6 months	2 years and 6 months
3	Incest	25 years	4 years and 6 months	18 months
4	Indecent act with or in the presence of a child under 16	10 years	18 months	6 months
5	Incest	25 years	5 years	18 months
6	Indecent act with or in the presence of a child under 16	10 years	2 years	6 months
7	Incest	25 years	6 years	Base
8	Possess child abuse material	10 years	1 year	6 months
Total Effective Sentence:		14 years and 6 months
Non-Parole Period:		9 years
Pre-sentence Detention Declared:		12 days
Section 6AAA Statement:		Total Effective Sentence: 18 years and 6 months Non-Parole Period: 12 years
Other relevant orders: 1. Order for forfeiture and disposal of property. 2. Pursuant to s 34 of the Sex Offenders Registration Act 2004, the length of the reporting period is Life.

Proposed grounds of appeal

As originally formulated the applicant sought to advance a single ground of appeal: that the sentence is manifestly excessive. After the Court requested the parties to address the significance if any to be attached to the comments made by the judge to the complainant and her family, the applicant sought to propose a second ground of appeal in the following terms:
The sentencing process miscarried due to apprehended bias as a result of the learned sentencing Judge speaking directly, in the absence of the applicant, to persons who had filed victim impact statements, in circumstances where her Honour:
(a) counselled those persons about the effect on them of the applicant’s offending;
(b) shared with them a personal anecdote; and
(c) generally, addressed them about the applicant’s offending in what the learned Judge described as ‘my private message to you’.
Counsel addressed this ground first. Counsel submitted that the comments made by the judge were unorthodox. They were couched in personal terms in the absence of the accused and in their tone and content conveyed a sense of counselling or support of the complainant and her family that was extraneous to the sentence. Counsel submitted that a fair minded observer might apprehend that the judge might not bring an impartial mind to the imposition of sentence.
On ground 1, and on the question of resentence should either ground be established, the applicant submitted that even if the individual sentences were open, the extent of the orders for cumulation produced a sentence that was manifestly excessive and that a lower sentence should be imposed. Counsel referred to a number of cases he contended were comparable, and which both made out ground 1 and supported a lower sentence in this Court.[5]
[5]McCray (a pseudonym) v The Queen [2017] VSCA 340; DPP v Dalgliesh (2017) 271 A Crim R 1; [2017] VSCA 360; DPP v Tewkesbury (a pseudonym) [2018] VSCA 38; Carter (a pseudonym) v The Queen [2018] VSCA 88; Grantley (a pseudonym) v The Queen [2018] VSCA 112; Phillips (a pseudonym) v The Queen [2018] VSCA 114; DPP v Walsh (a pseudonym) [2018] VSCA 172; Crouch (a pseudonym) v The Queen (2019) 58 VR 264; [2019] VSCA 30; DPP v Shearer (a pseudonym) [2019] VSCA 47; Nelson (a pseudonym) v The Queen [2020] VSCA 36; DPP v Polat (a pseudonym) [2020] VSCA 174.

Analysis and conclusions

Under s 278 of the Criminal Procedure Act 2009 a person sentenced for an offence may, with leave, appeal to this Court against the sentence imposed. Section 280 provides that this Court may refuse leave to appeal if there is no reasonable prospect that: (a) this Court would impose a less severe sentence than the sentence first imposed; or (b) reduce the total effective sentence despite there being an error in the sentence first imposed.
Section 281 deals with appeals, in the event that leave is given. Section 281 provides that, on an appeal under s 278, this Court must allow the appeal if the appellant satisfies the Court that: (a) there is an error in the sentence first imposed; and (b) a different sentence should be imposed. In ‘any other case’ the Court must dismiss the appeal.
Section 282 provides for the orders on a successful appeal. By that section, if the Court of Appeal allows an appeal under section 278, it must set aside the sentence imposed by the originating court and either (a) impose the sentence, whether more or less severe, that it considers appropriate; or (b) remit the matter to the originating court.
Where, as in this case, there is an allegation of apprehended bias it is necessary to consider that ground first. In order to succeed, the applicant must establish the ground by showing an error in the sentence and persuade this Court that a different sentence should be imposed.
The Court does have the power to remit the matter to the primary Court and a case of bias or a breach of procedural fairness may provide the occasion for such a disposition. However, that course is open only if this Court is satisfied that a different sentence should be imposed. In any event, this Court is in just as a good a position to resentence the applicant as would be the case in the event the matter was remitted. It is not a case where the error prevented the applicant from adducing any evidence or making submissions on the plea and the course of the plea was unaffected. It follows that we would not remit the matter.
There was little if anything that reduced the seriousness of the offending at the time it was committed and the moral culpability of the applicant was extremely high.
This was protracted, vile offending of a most egregious kind. It was destructive and highly damaging behaviour inflicted on an innocent child. The complainant was very young and vulnerable and depended on the applicant for support and care when she was left with him. The persistent breach of trust involved was deplorable. As the judge noted there was a degree of planning, and the applicant encouraged the complainant not to tell anyone and took steps to avoid detection, placing an additional burden on the child. The applicant manipulated both the complainant and her family and the offending showed a callous disregard for the interests and welfare of his grandchild. It was motivated solely by his own sexual gratification. Offending of this kind is inherently serious and strikes at the heart of the familial obligation to protect and nurture children.
The applicant’s response when confronted was to make the point that it was the applicant who had stopped the offending and that ‘it didn’t go past a certain point’. That response does not assist the applicant. It conveys the notion that the victim had some capacity to stop the offending and that the applicant should be given credit for stopping the sexual abuse. Neither proposition can be accepted. Further, the observation that it did not ‘go further’ plainly underestimates the seriousness of the penetrative offending that occurred.
The impact on the victims, both the immediate victim and other family members, of offending of this kind may not always be easy to quantify but will always be present. The terrible impact in this case is revealed by the victim impact statements which attest to the terrible consequences of the offending.
The plea of guilty was an important matter, both as evidence of remorse and for its utilitarian value. Further there can be no doubt that the applicant’s physical and mental state will render incarceration more burdensome. These factors were very important in moderating the sentence.

Notwithstanding the matters in mitigation, we are well satisfied that no lesser sentence should be imposed. We would not reduce any of the individual sentences. They are, to our mind, particularly lenient. The orders for cumulation properly reflected the overall criminality having regard to the individual sentences. Although it would be possible to restructure the sentence, in terms of both individual sentences and cumulation, doing so would not result in shorter individual sentences nor a shorter total effective sentence. In that context we note that during argument although the Court made it clear that it would not, in the exercise of its own discretion, increase the total effective sentence in the event of a resentence, the Court would consider increasing the individual sentences. In the result that has not been required.
We are not persuaded that other cases on which the applicant relied point to a lower sentence. They are not precedents and each turns on their own facts. A survey of those cases reveal that offending of this kind is rightly regarded as extremely serious warranting substantial terms of imprisonment. The need to have regard to current sentencing practice is not to be translated into a mathematical comparison.
It follows that the appeal must be dismissed. We wish to add the following in relation to the matter.
In our opinion the remarks made by the judge in the absence of the applicant should not have been made. In order to explain why that is so, it is necessary to refer to some cardinal principles.
First, the imposition of sentence following a finding or determination of guilt of a criminal offence is a fundamental aspect of the judicial process and one consigned exclusively to the judicial branch of government. It is a defining feature of the judicial process that procedural fairness be applied and, certain narrow exceptions apart, the judicial process occur in open court.
As a general rule, any step in a criminal proceeding, including the imposition of sentence should occur in the presence of the accused. The right to be present may be waived, including by absconding. In Taupati v The Queen[6] this Court rejected an attack on a sentence that had been imposed in the absence of the convicted person noting the ‘essential principle of our criminal law that the trial for an indictable offence has to be conducted in the presence of the accused’ which includes the right to be present during sentencing.[7] There was no reason in this case to depart from the ‘essential principle’. The applicant was only absent from the Court due to a technical failure that was beyond his control. He had the right to be present and to hear what the judge said when her Honour imposed sentence.
[6][2017] VSCA 106.
[7]Ibid [21] (Redlich, Santamaria and Ferguson JJA), quoting Lawrence v The King [1933] AC 699, 708 (Lord Atkin).
The second general point is that the role of the judge is to impose a sentence in accordance with law and to provide reasons that explain the basis on which the sentence has been imposed and record the matters to which the judge has had regard. As part of the sentencing process it is entirely appropriate and correct for a judge to have regard to the impact that the offending had on any victim.
However, it was inappropriate for the judge to direct herself to the complainant and her family by way of a ‘private message’. It was apt to blur the important boundary between the expression of the judge’s reasons for sentence and the judge’s personal reflections or opinions. The task of a sentencing judge is a very difficult one and the maintenance and appearance of objectivity is critical to the process. The course taken by the judge impermissibly transcended that boundary and carried the real risk of undermining the necessary objectivity or appearance of objectivity. The remarks were a significant departure from sound judicial practice.
The remarks made by the judge during the sentence were very different in character to the earlier remarks made by the judge during the course of the plea. The earlier remarks were more constrained, they were not offered as the private observation of the judge and reasonably acknowledged that the victim was not in any way responsible for the offending and the applicant was present. The remarks were made when the victim impact statements were read in court. Those victim impact statements were deeply moving and focused attention on the harm that the offending caused. They were rightly taken into account by the judge in her reasons for sentence.
In the circumstances of this case, the question of whether or not the judge’s remarks amount to an error in the sentence need not be determined because, in any event, we would not impose a different sentence. In the exercise of our own discretion having regard to all of the material, we are satisfied that no different sentence should be imposed. A lesser sentence would not adequately serve to denounce the offending and serve general deterrence.
We would grant leave to appeal but dismiss the appeal.
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[2023] VSCA 76

6 April 2023