Christopher John Valentine WILLIAMS v and the Queen

[2013] VSCA 120

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0301

CHRISTOPHER JOHN VALENTINE WILLIAMS	Applicant
v
Respondent
THE QUEEN

---

JUDGES:	MAXWELL ACJ and BUCHANAN JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 May 2013
DATE OF JUDGMENT:	7 May 2013
MEDIUM NEUTRAL CITATION:	[2013] VSCA 120
JUDGMENT APPEALED FROM:	DPP v Williams (Unreported, County Court of Victoria, Judge Mullaly, 16 November 2012)

---

CRIMINAL LAW – Appeal – Sentence – Indecent assault – Digital penetration – Child Victim – Victim in the care of offender – Total effective sentence three years and ten months’ imprisonment with minimum term of two years and six months – Cumulation appropriate – Strong rehabilitation – Not manifestly excessive – Leave to appeal refused – No point of principle.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr M D Stanton	Lethbridges Pty Ltd
For the Crown	Mr T Gyorffy SC	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL ACJ:

1. I will invite Buchanan JA to deliver the first judgment.

BUCHANAN JA:

1. After a trial in the County Court, the applicant was found guilty on five charges of indecent assault (charges 1, 3, 4, 5 and 6) and one charge of gross indecency (charge 2). 

1. After a plea, the applicant was sentenced to be imprisoned for a term of two years on charge 1, for a term of six months on count 2, for a term of nine months on charge 3, for a term of five months on charge 4, for a term of 14 days on charge 5 and for a term of two years on charge 6.  Two months of the sentence imposed on charge 2, five months of the sentence imposed on charge 3, one month of the sentence imposed on charge 4 and 14 months of the sentence imposed on charge 6 were accumulated upon each other and upon the sentence imposed on charge 1, producing a total effective sentence of three years and 10 months.  A non-parole period of two years and six months’ imprisonment was fixed.

1. The complainant and her siblings were placed in the care of the Victorian Social Welfare Department.  In May 1978, the applicant and his then wife became ‘the cottage parents’ of the children.  The offences arose from two incidents, one in December 1981 and the other in January 1982, when the complainant was aged 12 years and the applicant was aged 32 years. 

1. The first incident occurred when the complainant returned home from a holiday.  The applicant followed her to her bedroom and started to touch her.  He put his fingers inside her vagina (charge 1) and said, ‘if you could fit two fingers inside her vagina then she would not be a virgin anymore’.  During the course of this incident the applicant took the victim’s hand and put it on his penis over the top of his clothing (charge 2).

1. The second incident occurred when the complainant and her brother returned from a joy flight.  The applicant entered the complainant’s bedroom and made the complainant touch him on his penis under his trousers (charge 3).  The applicant touched the victim on her breasts (charge 4) and kissed her on the face (charge 5).  The applicant then put his fingers in the complainant’s vagina (charge 6).

1. In a record of interview in 2011, the applicant admitted having a sexual relationship with the complainant, acknowledged that the relationship was wrong and said that he was ashamed.  The applicant denied using any threats of violence.

1. The grounds of appeal are as follows:

1.The learned sentencing judge erred by failing to properly apply the principle of totality with regard to the orders for cumulation made on counts 2, 3, 4, 5 and 6.

2.The orders for cumulation and the non-parole period are manifestly excessive having regard to the applicant’s rehabilitation, remorse, the effect of delay and the burden of his imprisonment.

1. The applicant is 63 years’ old.  He was born in England.  When he left school, the applicant joined the Royal Navy.  Upon leaving the navy, the applicant worked as a plumber.  He came to Australia in 1974 and worked here as a plumber, eventually establishing his own business. 

1. The applicant lived with the complainant for a short time.  A daughter was born of the relationship.  Some two and a half years later the relationship ended when the complainant left the applicant. 

1. Towards the end of the 1980s the sexual relationship between the complainant and the applicant was discovered by the applicant’s wife.  She left the applicant and returned to England with the two children of the marriage.  The applicant returned to England in 1990.  He was extradited to Australia in 2010.  The applicant formed a new relationship with a woman to whom he revealed his relationship with the complainant.  The applicant also revealed the relationship to members of his extended family in England.  They remained supportive of him.  In the light of this material, the sentencing judge concluded that the applicant was unlikely to reoffend.

1. In the course of the plea a report by a psychiatrist was tendered.  The psychiatrist said that the applicant was remorseful and had some insight into his offending.  He did not meet the diagnostic criteria for a conclusion of paedophilia.

1. The applicant could rely upon mitigating circumstances of some significance.  He had no prior convictions.  More than 30 years had elapsed since the offences were committed.  The applicant was a reformed man when he was sentenced.  The applicant made admissions to the police.  There was cogent evidence of his remorse.  The applicant offered to plead guilty at an early stage to an indictment that did not allege any acts of violence.  The applicant has the support of his family.  The applicant is in protective custody. 

1. On the other hand, the offences themselves were serious and represented a grave breach of trust.  So much was acknowledged by counsel who appeared for the applicant at the plea, who acknowledged that an immediate term of imprisonment was appropriate.

1. Counsel for the applicant relied upon two decided cases, which were said to be comparable and where lesser cumulation was ordered.  I do not find that analogy illuminating.  Save in exceptional cases, I think that complaints about orders for cumulation tend to merge into the question whether the cumulation results in a total effective sentence which offends the principle of totality.

1. In the present case, I do not consider there was any breach of that principle, particularly in the light of the provisions of s 6E of the Sentencing Act1991.  Otherwise, I think that the cumulation was justified by the extent of the applicant’s offending involving, as it did, offences of different types.

1. Each of the mitigating circumstances relied upon by the applicant’s counsel to support the contention that the sentence was manifestly excessive was carefully considered by the sentencing judge.  In my view the sentence was within the range open to a reasonable sentencing judge. 

1. Accordingly, I would refuse leave to appeal.

MAXWELL ACJ:

1. I agree. 

1. The order of the Court is:  

1.        Application refused.

- ‑ ‑