Crawford (a pseudonym) v The Queen
[2018] VSCA 113
•9 May 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0043
| HARRIS CRAWFORD (a pseudonym)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.
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| JUDGES: | MAXWELL P and KYROU JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 20 March 2018 |
| DATE OF JUDGMENT: | 9 May 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 113 |
| JUDGMENT APPEALED FROM: | DPP v Crawford (a pseudonym) [2017] VCC 105 (Judge Pullen) |
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CRIMINAL LAW – Appeal – Sentence – Sexual offences against children – Course of conduct charges – Incest, sexual penetration of 17 year old child under care (3 charges), attempted rape – Victim was stepdaughter aged 12–18 – Sentenced to 15 years’ imprisonment with non-parole period of 8 years – Whether manifestly excessive – Different forms of penetration over same period – Breaks in period of offending – Application for leave to appeal refused – DPP v Dalgliesh [2016] VSCA 148, McCray v The Queen [2017] VSCA 340, referred to – Criminal Procedure Act 2009 sch 1, cl 4A.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr P J Smallwood with Mr J Connelly | Furstenberg Law |
| For the Respondent | Mr B F Kissane QC | Mr J Cain, Solicitor for Public Prosecutions |
MAXWELL P
KYROU JA:
Introduction and summary
On 16 December 2016, the applicant pleaded guilty to the charges set out in the following table. On 17 February 2017, he was sentenced as set out in that table.[2]
[2]DPP v Crawford (a pseudonym) [2017] VCC 105 (‘Sentencing remarks’).
Charge Offence Maximum Sentence Cumulation 1 Incest 25y 8y Base 2 Sexual penetration of 16 or 17 year old child under care 10y 5y 1y 3 Sexual penetration of 16 or 17 year old child under care 10y 5y 2y 4 Sexual penetration of 16 or 17 year old child under care 10y 5y 2y 5 Attempted rape 20y 5y 2y Total Effective Sentence: 15y Non-Parole Period: 8y Pre-Sentence Detention Declaration: 14 days Section 6AAA Statement: 20y with a non-parole period of 13y Other Orders: Pursuant to s 34 Sex Offenders Registration Act 2004, the length of the reporting period is life
Charge 1 was a course of conduct charge,[3] which involved incest committed in the period from 13 June 2008 until 24 April 2010 when the complainant was aged between 12 and 13 years and the applicant was aged between 35 and 37. During that period, the complainant was the applicant’s stepdaughter.
[3]As discussed at [64] below, a course of conduct charge is ‘a charge for a relevant offence that involves more than one incident of the offence’. See Criminal Procedure Act 2009 sch 1, cl 4A.
Charges 2–4 were also course of conduct charges, which involved different forms of penile penetration — vaginal (charge 2), oral (charge 3) and anal (charge 4) — committed in the period from 13 June 2013 until 23 February 2014. During that period, the complainant was 17 years of age and the applicant was aged between 40 and 41. The complainant had ceased to be the applicant’s stepdaughter on 22 February 2013.
The attempted rape the subject of charge 5 took place on 24 February 2015, when the complainant was 18 years of age and the applicant was 42.
The applicant seeks leave to appeal against his sentence on the ground that the individual sentences imposed on each charge, the orders for cumulation and the total effective sentence are manifestly excessive.
In its written case, the Crown conceded that the orders for cumulation on charges 2–4 were manifestly excessive and that, consequently, the total effective sentence was manifestly excessive. As will appear, however, that concession was withdrawn during oral argument.
For the reasons that follow, the application for leave to appeal will be refused.
Circumstances of the offending
The applicant commenced a relationship with the complainant’s mother in 2000, when the complainant was 4 years old. The applicant moved in with the complainant and her mother and younger sister. As the two girls did not have any contact with their biological father, the applicant assumed the role of their father. He and the complainant’s mother married in 2003. They had a son, born in 2001, and a daughter born in 2007.
The applicant’s offending against the complainant began in 2008, when she was 12 years old. When they were alone in the family home, he asked her ‘Do you know what sex is?’. She replied that she did not and the applicant told her to follow him into his bedroom. He instructed her to remove all of her clothing and then removed his clothing. He told her ‘not to tell anyone or Daddy will get into trouble’. The complainant did not recall the particulars of the offending on that occasion, but remembers that it was the start of the applicant’s sexual abuse, during which he regularly penetrated her vagina with his penis. The applicant bribed the complainant with soft drink or chocolate to engage in sexual activity with him. This course of conduct is the subject of charge 1.
On 24 April 2010, the applicant and the complainant’s mother separated, and the applicant moved out of the family home. After he moved out, the applicant saw the complainant infrequently, and the offending stopped. The applicant and the complainant’s mother formally divorced on 22 February 2013.
In July 2012, when the complainant was 16 years old, she and her mother and sister moved to regional Victoria. The complainant was unhappy with the relocation and her relationship with her mother became difficult. As a consequence, the complainant communicated with the applicant, who sympathised with her situation. The complainant decided to live with the applicant, who was then residing with his parents. She moved in with him in early 2013. No sexual activity occurred between them while they were living with his parents.
In mid-2013, a fire caused damage to a section of the applicant’s parents’ home. The applicant and the complainant were required to live in a motel for several months. During that time, the applicant resumed offending against the complainant.
He would bribe her to perform sexual acts with him, either with money or by allowing her to go out to see her friends. The complainant recalled one occasion when the applicant made her perform oral sex on him in exchange for money for her Myki card. The applicant penetrated the complainant’s vagina and mouth with his penis on regular occasions. She said that ‘this kind of became his daily routine … and I just became familiar with his routine’. He did not use a condom when he engaged in penile-vaginal sex with her and would withdraw before he ejaculated. On some occasions, the applicant pinned the complainant down by her arms, either on her back or on her stomach, and forcefully penetrated her vagina with his penis. Charge 2 relates to the incidents of penile-vaginal penetration and charge 3 relates to the occasions of penile-oral penetration.
The applicant continued to offend against the complainant after they moved out of the motel into a unit. The offending occurred almost daily. He controlled her by controlling her money and bribing her for sexual favours.
The applicant began to engage in penile-anal sex with the complainant. Due to the pain it caused her, the complainant began to struggle with the applicant when he penetrated her anus with his penis. As the offending continued she became more resistant to the applicant and told him ‘no’. The applicant became more forceful and aggressive with her in order to get what he wanted. She became scared of him. The applicant ejaculated inside her when he penetrated her anus. The incidents of penile-anal penetration are the subject of charge 4.
The circumstances of the attempted rape the subject of charge 5 are as follows. On 24 February 2015, the complainant was in her room, sitting on her bed when the applicant walked in and sat down next to her. He started touching her over her clothing on her breasts and her vagina. She said ‘no’ and pushed him away. He pulled her leggings and underwear down. As she struggled, he became more forceful. He pinned her down on her stomach by holding her wrists. He then removed his boxer shorts, climbed on top of her and attempted to engage in penile-vaginal intercourse.
The complainant managed to get out from underneath the applicant and run into the lounge room, where she waited until she could get past him to retrieve her clothing and then leave. When he went into the lounge room, she tried to go back into her bedroom but he grabbed her around the waist and pulled her back onto a reclining chair, with her back against his chest. While the complainant struggled, the applicant continued to hold her around the waist, while reaching around and trying to digitally penetrate her vagina with his free hand. She continued to struggle and he eventually let her go.
The complainant went back into her room. The applicant followed her, grabbed her and pinned her arms down. She was crying hysterically. He stopped, apologised to her, and said that he did not mean to hurt her and that he loved her. She got dressed and locked herself in the toilet. She called a friend who came and picked her up.
Several days later, the complainant told her mother about the offending and she drove the complainant to the local police station where the matter was reported.
The applicant was first interviewed on 27 February 2015 about the attempted rape on 24 February 2015. He told police that he often had ‘play fights’ with the complainant and that, on this occasion, after she had jumped on him and he had pinned her down, she started to cry and he let her go as he thought he must have been holding her too tightly. He also told police that he had had consensual sex with the complainant some weeks before, on one occasion, which was instigated by her. He said that had occurred after the complainant came into his bedroom for a cuddle and then climbed on top of him and removed her underwear. The applicant said that he thought his penis went into her vagina.
The applicant was interviewed again by police on 21 August 2015 regarding further allegations of sexual offending against the complainant. He made no admissions.
In her victim impact statement, the complainant described how the applicant’s offending had left her with trust issues and made it difficult for her to maintain relationships. She suffers from anxiety and lack of confidence. She felt that she was robbed of her teenage years. She had difficulty at school and dropped out because she could not concentrate, knowing that the applicant would offend against her when she went home. While she lived with the applicant, she was scared of him. She felt suicidal and self-harmed. She finds it difficult to ‘shift [the] thought’ that it was her fault, and worries about being judged.
The complainant’s mother stated in her victim impact statement that her pre-existing depression had been severely aggravated by learning about the applicant’s offending against the complainant, and she now experienced insomnia.
Personal circumstances
The applicant was 44 years old at the time of sentencing. He has a good relationship with his mother and two stepfathers and remains in contact with his two half-brothers. He has had little contact with his biological father throughout his life.
The applicant struggled academically at school and experienced learning difficulties, leaving in Year 9. After leaving school he was assessed as having a specific learning disorder.
He worked as a carpet layer between the ages of 16 and 20 and, since that time, has worked primarily as a security guard. From time to time, he has been unemployed and received Centrelink benefits. As a result of his conviction, he will no longer be able to obtain work as a security guard.
While the applicant was working as a carpet layer, he was sexually abused by his employer. Since his offending against the complainant ended, he has begun to have flashbacks and dreams about those past sexual assaults and has become ‘hyper vigilant’. He received counselling and saw a mental health nurse in response to those flashbacks.
The applicant felt depressed and suicidal after separating from the complainant’s mother and attended three sessions with a psychologist. He has attempted to commit suicide on one occasion. He also felt anxiety and stress as a result of his work as a security guard. On 27 October 2016, he was diagnosed with adjustment disorder with depression and some anxiety symptoms, with a differential diagnosis of major depressive disorder. Since his offending was reported, he has begun to experience suicidal ideation again.
The applicant has no prior criminal history.
Plea hearing
At the plea hearing, defence counsel conceded that the applicant’s offending involved the aggravating features of ‘coercion, control [and] bribery’.[4]
[4]Transcript of Proceedings (3 February 2017) 26.
In relation to charges 2–4, the prosecutor informed the judge that the offending was made the subject of three separate charges, instead of a single course of conduct charge, because it involved three different types of penile penetration. He submitted that, in the light of this, the judge ‘will no doubt be careful in relation to cumulating’ and that ‘it could be understood that there might be a greater degree of concurrency’.[5]
[5]Transcript of Proceedings (3 February 2017) 70.
The applicant tendered a report from a forensic psychologist, Pamela Matthews, dated 31 January 2017. Ms Matthews stated that the applicant had suffered from persistent depressive disorder from his adolescent years. She said that, during the period of his offending, there had been some mood-related disturbance to clear thought and judgement, although the extent of that disturbance was unclear.
Ms Matthews stated that the applicant’s low self-esteem was a developmental factor that contributed to his offending. It was also her opinion that the applicant’s own sexual history, including a sexual relationship with an 18-year-old woman when he was 15 and the sexual assault by his employer, had impacted negatively on his psychosexual boundaries and his capacity to self-regulate psychosexual and interpersonal boundaries. She indicated that the applicant’s use of alcohol at dependence levels and long periods of unemployment would also have been contributing factors. However, the applicant acknowledged that he was aware that it was ‘morally wrong and illegal’ to have a sexual relationship with a child and said that he was ‘sorry for everything happening this way’.
Ms Matthews assessed the applicant’s risk of re-offending in a similar manner as moderate. She observed that he had difficulty with minimisation of his offending and denial was present. She stated that focused treatment addressing his depression, alcohol abuse, dependent personality features, insight deficits and history of sexual abuse and sexual offending would decrease that risk.
Ms Matthews’ opinion was that, in custody, the applicant was likely to suffer a collapse in his mood state and increased suicidal ideation and would require counselling and pharmacological management. She also stated that his learning difficulties were likely to make him socially vulnerable in prison.
Character references from the applicant’s family and friends were tendered on the plea. His mother described his difficult childhood and adolescence in which he struggled with his learning disability and said that, after his relationship with the complainant’s mother broke down, his only happiness was when he had access to his children. She said that he was very remorseful for his offending. Other references described the applicant as polite, respectful, and always willing to help others. A number of the references expressed shock at the applicant’s offending, stating that it was out of character, and described the positive relationship that he had with his own and other children.
Sentencing remarks
The judge described the applicant’s offending as ‘most serious and disturbing … abhorrent and repugnant’ and ‘sustained’.[6] She said that it had ‘lasting consequences’ for the complainant, who had ‘suffered considerably’, and for the complainant’s family.[7]
[6]Sentencing remarks [3], [50], [106].
[7]Sentencing remarks [3], [5].
The judge found that there were a number of aggravating features of the applicant’s offending. First, it involved gross breaches of the trust that both the complainant and her mother had placed in the applicant. Secondly, the offending involved ‘bribery, coercion and control in order to ensure [the complainant’s] compliance with [the applicant’s] perverted sexual demands’.[8] Thirdly, the applicant told the complainant not to tell anyone about the offending. Fourthly, the applicant did not wear a condom during the offending.[9] Fifthly, the applicant recommenced offending after periods when he did not offend and had opportunities to desist.[10]
[8]Sentencing remarks [4].
[9]The judge referred to R v Khem (2008) 186 A Crim R 465 (‘Khem’). See Sentencing remarks [4].
[10]Sentencing remarks [4], [53].
The judge also took into account several mitigating factors. She stated that the applicant was entitled to have his plea of guilty taken into account. The community had been spared the time and cost of a trial, and witnesses — in particular the complainant — had been spared the need to give evidence. The judge accepted that the applicant’s plea of guilty indicated ‘some’ and a ‘degree’ of remorse, but also stated that she had ‘concerns regarding the extent of [his] remorse, given [his] continued denials of [his] offending in the second record of interview until recently’.[11] She emphasised that the applicant was not remorseful when he was interviewed by police on the first or second occasion and, in fact, sought to cast blame on the complainant as the instigator of sexual activity.
[11]Sentencing remarks [41], [58].
The judge found that the applicant’s prospects of rehabilitation were ‘guarded’.[12] In reaching that view, she had regard to the applicant’s plea of guilty and lack of prior criminal history, but also his earlier denials of his offending, his failure to obtain any counselling in relation to his sexual offending, and the difficulty in assessing his degree of insight regarding his offending. The judge also noted the view of Ms Matthews that the applicant had difficulty with minimisation and denial of his offending, and her assessment of the applicant’s risk of reoffending as ‘moderate’.[13]
[12]Sentencing remarks [61].
[13]Sentencing remarks [90].
The judge determined that, despite the applicant’s lack of prior criminal history, specific deterrence was a relevant sentencing consideration. This was because of the duration of his offending, his resumption of offending after having ceased for periods of time and the opportunities he had had to desist from re-offending. She stated that general deterrence was also of ‘considerable importance’.[14]
[14]Sentencing remarks [146].
The judge also had regard to the support that the applicant enjoyed from his immediate family and friends, as was apparent from the character references tendered on the plea. She also took into account, consistent with general sentencing principles, the applicant’s learning difficulties which would likely make him vulnerable in the prison environment, and referred to the applicant’s depression, anxiety, suicidality and flashbacks to his own past sexual assault.
In sentencing the applicant for the course of conduct charges (charges 1–4), the judge applied the following principle set out in para 9.3.6.2 of the then current edition of the Sentencing Manual, published by the Judicial College of Victoria:
The court must sentence within the maximum penalty for the charged offence, but must reflect the totality of the offender’s conduct. As a result, sentences for course of conduct charges are likely to be higher than for equivalent conduct prosecuted as a single incident on a ‘first occasion’ basis. In this respect, sentencing for course of conduct charges will be very similar to the way courts currently sentence for rolled-up charges.
The judge also referred to R v Jones[15] and Reid v The Queen,[16] which relate to sentencing for rolled-up charges, and Director of Public Prosecutions v Aparo,[17] in which the offender was sentenced for three course of conduct charges of incest.
[15][2004] VSCA 68.
[16](2014) 42 VR 295.
[17][2016] VCC 802 (‘Aparo’). Aparo is discussed at [71] below.
The judge considered authorities on the interrelationship between the totality principle and the requirement in s 6E of the Sentencing Act 1991 that terms of imprisonment imposed on a serious sexual offender ‘must, unless otherwise directed by the court, be served cumulatively’.[18] The judge said that while s 6E constrains the totality principle, that principle ‘remains an important consideration of sentencing’.[19]
[18]The judge referred to McL v The Queen (2000) 203 CLR 452; Gordon v The Queen [2013] VSCA 343; DPP v Dalgliesh [2016] VSCA 148; DPP v Hopson [2016] VSCA 303.
[19]Sentencing remarks [125].
Ground of appeal
The applicant’s ground of appeal is as follows:
The individual sentences imposed (on each of charges 1 to 5), the orders for cumulation made (on each of charges 2 to 5) and the resulting total effective sentence are each manifestly excessive.
Particulars
(a)The sentencing judge gave manifestly insufficient weight to the applicant’s pleas of guilty, which were entered at an early stage.
(b)The sentencing judge gave manifestly insufficient weight to other mitigating circumstances, including: that the applicant’s pleas were accompanied by some remorse; that the applicant had no prior or subsequent convictions; and the impact that imprisonment will have upon the applicant in light of his learning difficulties (and associated social vulnerability), depression, low self-esteem and low mood state.
(c)The sentencing judge gave manifestly insufficient weight to the principle of totality, which was an important consideration notwithstanding that the applicant fell to be sentenced as a serious sexual offender on charges 3 to 5 (and thus section 6E of the Sentencing Act 1991 (Vic) applied).
(d)The sentences imposed were more severe than that which [was] necessary to achieve the purpose for which the sentences were imposed.
At the hearing of the application for leave to appeal, the applicant abandoned his contention that the individual sentences for charges 2–5 were manifestly excessive. He maintained that the individual sentence for charge 1, the orders for cumulation for charges 2–5 and the total effective sentence were manifestly excessive.
Parties’ submissions
Counsel for the applicant acknowledged that the offending was ‘nothing short of dreadful, outrageous, [and] despicable’, involving a gross breach of trust, bribery, coercion and control. He further acknowledged that the offending was ‘very grave’ and that the applicant ‘fell to be punished significantly’. However, he submitted that, even in the light of the increases in current sentencing practices, the sentence of 8 years’ imprisonment on charge 1 was ‘at the very top end of the range of sentences’ for such offending and, even as a course of conduct charge, was manifestly excessive.
In support of that contention, counsel relied on McCrayv The Queen[20] and Harmon v The Queen,[21] in which the offenders had been sentenced to 5 years’ imprisonment and 7 years’ imprisonment respectively for course of conduct charges of incest. In response to questions from the Court, however, counsel accepted that there was no established sentencing practice for course of conduct charges of incest.
[20][2017] VSCA 340 (‘McCray’).
[21][2017] VSCA 169 (‘Harmon’).
Counsel argued that the applicant was able to call in aid significant mitigating factors, including his plea of guilty which was accompanied by some remorse, his willingness to engage in treatment, his lack of prior convictions, good work history and family support. Additionally, counsel relied on the problems that the applicant would face in prison due to his learning difficulties, social vulnerability, depression, low self-esteem and low mood state. Counsel also relied on the absence of aggravating features such as pregnancy.
Regarding the orders for cumulation, counsel for the applicant submitted that the cumulation of 5 years for charges 2–4 was excessive as those charges were, in effect, a single course of conduct relating to the same complainant over the same period of time, albeit involving different forms of penile penetration. He argued that even in circumstances where the applicant fell to be sentenced as a serious sexual offender for charges 3–4, the orders for cumulation infringed the totality principle. He emphasised that, on the plea, the prosecutor had conceded that there was scope for a greater degree of concurrency for those charges.
In respect of charge 5, counsel for the applicant conceded that it involved separate criminality, but submitted that the order for cumulation of 2 years’ imprisonment contributed to the total effective sentence breaching the totality principle. He referred to Azzopardi v The Queen,[22] and contended that cumulation of 2 years was more severe on the applicant, as it accumulated on the lengthy sentences imposed for charges 1–4.
[22](2011) 35 VR 43 (‘Azzopardi’).
In its written submissions, the Crown submitted that the individual sentences imposed were within range, particularly in the light of charges 1–4 being course of conduct charges and the grave circumstances of the offending the subject of charge 5. The written case conceded, however, that the orders for cumulation for charges 2–4 had produced a total effective sentence which was manifestly excessive. According to the written case, the orders for cumulation overlooked the fact that individual charges were laid only because they involved different forms of penile penetration.
As noted earlier, that concession was withdrawn in the course of oral argument. In answer to questions from the Court, both counsel accepted that the frequency of the different forms of penetration, and the pain caused by the anal penetration, meant that each of charges 2–4 represented separate criminality, such that some degree of cumulation was justified. Having withdrawn the concession, senior counsel for the Crown submitted that, when each of the offences and separate periods of offending were considered, the cumulation ordered by the judge was within range.
Senior counsel for the Crown further contended that, even if charges 2–4 had been charged as a single course of conduct charge, that would not necessarily have resulted in a lower total effective sentence. He argued that, in those circumstances, it would have been open to the judge to impose a longer head sentence and order a higher degree of cumulation for that single charge, particularly as it involved a return to offending and re-traumatisation of the complainant.
Regarding charge 5, the Crown submitted that both the sentence and the order of 2 years’ cumulation were unremarkable, as it was serious offending and represented separate criminality.
Decision
The submission of manifest excess can only succeed if the sentences imposed are shown to be wholly outside the range reasonably open to the judge in the circumstances of this case. Where — as here — the offending in question is incest of mid-range seriousness, the consideration of sentencing range must take into account the dramatic change in the sentencing parameters for incest, described in our reasons in Grantley (a pseudonym) v The Queen.[23]
[23][2018] VSCA 112 [20]-[27].
In our opinion, no aspect of the sentence imposed on the applicant is manifestly excessive.
The applicant’s offending involved very serious sexual abuse of the complainant on a regular basis over a period of nearly seven years, commencing when she was just 12 years of age. The applicant treated the complainant as his sexual object, to abuse as he saw fit, and he pursued his own sexual gratification by engaging in three different forms of penile penetration in the course of that period. The offending involved a gross breach of trust by the applicant, initially as the complainant’s stepfather and subsequently as the person with responsibility for her care. There were temporal breaks in the offending but, instead of using those breaks to desist from sexually abusing the complainant, the applicant resumed his offending with greater forcefulness, inflicting pain on her and ultimately attempting to violently rape her.
As conceded by the applicant’s counsel on the plea, the offending involved the serious aggravating features of coercion, control and bribery.[24] In addition, the non-use of a condom increased the applicant’s moral culpability.[25]
[24]See [30] above.
[25]See Khem (2008) 186 A Crim R 465, 468–9 [14], 470 [18], 472–3 [34].
The offending had lasting and devastating consequences for the complainant. The repetitive and persistent nature of the offending compounded her sense of powerlessness as against the applicant.[26] She self-harmed, became suicidal and continues to suffer anxiety, lack of trust and self-blame.
[26]DPP v DDJ (2009) 22 VR 444, 452 [32].
We will first consider the base sentence of 8 years for charge 1. We will then consider the orders for cumulation for charges 2–4 and 5 before turning to the issue of totality.
Base sentence for charge 1
In our opinion, far from being manifestly excessive, the sentence of 8 years for the incest charge was moderate. The key consideration is that, as a course of conduct charge, it attracted quite distinct sentencing considerations.
Clause 4A of sch 1 to the Criminal Procedure Act 2009 defines a ‘course of conduct charge’ as ‘a charge for a relevant offence that involves more than one incident of the offence’. Such a charge is particularly appropriate where the offending is so frequent that it is difficult for the complainant to give precise particulars of the number of incidents of the offence or the dates, times, places, circumstances or occasions of the incidents.[27]
[27]Criminal Procedure Act 2009 sch 1 cl 4A(10).
Section 5(2F) of the Sentencing Act 1991 provides that, in sentencing an offender for a course of conduct charge, the court:
(a)must impose a sentence that reflects the totality of the offending that constitutes the course of conduct; and
(b)must not impose a sentence that exceeds the maximum penalty prescribed for the offence if charged as a single offence.
In McCray,[28] this Court said the following about this provision:
By force of s 5(2F)(a) of the Sentencing Act 1991, the judge was obliged to impose a sentence that reflected ‘the totality of the offending that constitute[d] the course of conduct’. The only constraint on his Honour’s discretion, apart from the principle of totality itself and the other usual sentencing principles applicable to the case, was that expressed in s 5(2F)(b), namely, that the sentence must not exceed the maximum of 25 years’ imprisonment.
…
Because the applicant was to be sentenced for multiple incidents of incest, albeit within the confines of a single maximum penalty, sentences imposed for single instances of incest could not provide any relevant guidance.[29]
[28][2017] VSCA 340.
[29]McCray [2017] VSCA 340 [35]–[36].
Otherwise, of course, orthodox sentencing principles apply. What is a just and appropriate sentence for a course of conduct sexual offence will be informed by the nature of the sexual acts, the frequency and persistence of the acts, the age and other personal circumstances of the victim, and the impact of the offending on the victim.
For the reasons given in McCray, sentences for individual offences of incest do not provide any assistance in determining whether a sentence for a course of conduct charge of incest is manifestly excessive. That is particularly so if the sentence for an individual offence was imposed prior to Director of Public Prosecutions v Dalgliesh,[30] in which this Court stated that current sentencing practices for incest offences in the mid-range of seriousness were disproportionately low and needed to be increased.
[30][2016] VSCA 148.
On the other hand, some assistance in determining whether the sentence of 8 years’ imprisonment for charge 1 is manifestly excessive can be derived from other sentences imposed for course of conduct offences of incest. In McCray,[31] the offender inserted his fingers in his eight-year-old biological daughter’s vagina while she pretended to sleep, doing so on numerous occasions over a period of nearly two years. This Court refused his application for leave to appeal against his sentence of 5 years’ imprisonment for a course of conduct charge of incest. The offending in the present case was more frequent — occurring regularly for approximately 22 months — and involved bribery and psychological coercion.
[31][2017] VSCA 340.
In Harmon,[32] this Court refused leave to appeal against a sentence of 7 years’ imprisonment for a course of conduct charge of incest. The offending involved 32 occasions of penile-vaginal penetration of the offender’s 15-year-old biological daughter.
[32][2017] VSCA 169.
In Aparo,[33] the offender pleaded guilty to three course of conduct charges of incest. The charges involved different forms of sexual penetration (anal, oral and vaginal) of the offender’s stepdaughter in the period from 1 July 2002 until 22 July 2015. The offending occurred three or four times each week and caused pain to the victim. The offender threatened to financially ruin the victim’s ill mother if the victim disclosed the offending. He also told her repeatedly that her family hated her. There was a break in the offending between November 2010 and October 2014. Judge Gucciardo sentenced the offender to 8 years’ imprisonment on each of the course of conduct charges. He designated charge 3 as the base sentence and ordered cumulation of 10 months on charges 1 and 2.
[33][2016] VCC 802.
There are a number of similarities between Aparo and the present case, including the lengthy periods over which the offending occurred, the different forms of penetration and the use of psychological manipulation. Although the victim in Aparo was an adult whereas the complainant in the present case was a child, they were both vulnerable and were subjected to persistent and painful sexual abuse.
In Director of Public Prosecutions v Meharry,[34] one of the charges to which the offender pleaded guilty was persistent sexual abuse of a child under 16, the maximum penalty for which is 25 years’ imprisonment. That charge involved sexual activity between the offender and the victim, aged 14–15 years, on 32 occasions over a period of 10 months. The activity comprised the offender inserting his finger, penis and a hairbrush in the victim’s vagina and directing her to hold his penis. He did not wear a condom and ejaculated in her vagina, resulting in a pregnancy and a subsequent miscarriage. This Court resentenced the offender to 8 years’ imprisonment for that charge.
[34][2017] VSCA 387.
Director of Public Prosecutions v DDJ[35] also involved the offence of persistent sexual abuse of a child under 16, which was then known as ‘maintaining a sexual relationship with a child under 16’. The offender engaged in sexual conduct with the victim — a 14-year-old girl who lived with the offender and his partner — over a period of five months. This Court resentenced the offender to 7 years’ imprisonment. The sentence had been reduced to take into account the principle of double jeopardy which then applied to Crown appeals.[36]
[35](2009) 22 VR 444.
[36]See also DPP v DZ [2009] VSCA 301 and Talbot v The Queen [2016] VSCA 218 where sentences of 8 years’ imprisonment for maintaining a sexual relationship with a child under 16 and 9 years’ imprisonment for persistent sexual abuse of a child under 16, respectively, were imposed.
It follows from the above discussion that the sentence of 8 years’ imprisonment for charge 1 is not inconsistent with current sentencing practices relating to a course of conduct charge of incest. Accordingly, there is nothing in current sentencing practices which supports the applicant’s contention that the sentence is manifestly excessive.
Indeed, when assessed by reference to the principles relating to sentences for course of conduct charges set out at [64]–[67] above, the sentence of 8 years’ imprisonment can only be described as moderate. That is so for the following reasons:
(a)The offending was a very serious instance of a course of conduct charge of incest.
(b)The offending was prolonged and persistent, occurring regularly over approximately 22 months.
(c)The offending involved bribes with chocolates and soft drink and psychological coercion, constituted by the applicant’s statement to the complainant that ‘Daddy will get into trouble’ if she told anyone about the offending.
(d)The offending involved an egregious breach of trust and exploitation of parental authority by a 35-year-old man in relation to his highly impressionable and vulnerable 12-year-old stepdaughter.
The absence of aggravating features such as pregnancy does not assist the applicant. If pregnancy or similar aggravating features had been present, the judge would have been justified in imposing a sentence substantially higher than 8 years’ imprisonment.
Orders for cumulation for charges 2–4
As already discussed, charges 2–4 were also course of conduct charges and involved three different forms of penile penetration in the period from 13 June 2013 until 23 February 2014.
In our opinion, senior counsel for the Crown was right to withdraw his concession that the orders for cumulation for charges 2–4 were manifestly excessive. As counsel explained, the concession had been based on the facts that the non-parole period constituted an unusually low proportion of the total effective sentence (53.33 per cent) and that the judge did not explain how she had determined it. Counsel accepted, however, that the length of the non-parole period could not inform the question whether the total effective sentence — or any particular order for cumulation — was manifestly excessive. In any event, for the following reasons, the orders for cumulation for charges 2–4 were not manifestly excessive.
Each of the charges involved distinct forms of offending which required separate punishment. The offending was committed after a period of three years had passed since the offending the subject of charge 1, during which time the complainant had regained her trust in the applicant and moved in with him, such that he became solely responsible for her care. The resumption of offending in these circumstances was particularly reprehensible and a gross breach of the complainant’s renewed trust in the applicant. Moreover, the applicant’s offending became more aggressive and forceful. He sometimes pinned down the complainant by holding her wrists. He persisted in penetrating her anus even though she struggled and said ‘no’, and despite the pain she experienced.
The offending represented a very serious example of sexual penetration of a 17 year old child by an adult responsible for the child’s care. It occurred almost daily over a prolonged period (approximately eight months) and involved control over the complainant’s movements and finances as a means of enabling the applicant to exercise sexual domination over her. As a consequence of the nature of the abuse expanding to oral and anal penetration and becoming more forceful and painful, the complainant became scared of the applicant.
In these circumstances, the orders for cumulation of 1 year for charge 2 and 2 years for each of charges 3 and 4 are unremarkable. There is a rational explanation as to why the period of cumulation for charge 2 is lower than that for charges 3 and 4, namely, that the applicant was sentenced as a serious sexual offender for charges 3 and 4 but not for charge 2.[37]
[37]See the definition of ‘serious sexual offender’ in s 6B(2) of the Sentencing Act 1991. See also the requirements in ss 6D and 6E for the sentencing of serious sexual offenders.
We acknowledge that, if there had been a single course of conduct charge for the three forms of penile penetration, the maximum penalty of 10 years’ imprisonment would have resulted in the applicant being sentenced to less than 10 years. Further, that single charge would have been the second charge and would not have attracted the serious sexual offender provisions of the Sentencing Act 1991. The laying of a separate charge for each of the three forms of penetration meant that the maximum penalty applied to each charge, thus enabling the judge to impose a total sentence of 15 years for the three charges. However, we do not accept that, if a sentence of less than 10 years had been imposed for a single course of conduct charge, the order for cumulation for that charge would necessarily have been less than 5 years.
In our opinion, it was reasonably open to the judge to order a period of 5 years’ imprisonment to be served for the sexual penetration offending, in addition to the sentence of 8 years’ imprisonment for the incest offending, having regard to the separate and distinct criminality that it involved.
Order for cumulation for charge 5
In our opinion, the order for cumulation of 2 years for charge 5 was moderate, having regard to the violent nature of the attempted rape and the fact that it constituted very serious distinct offending which was separated by a year from the offending the subject of charges 2–4.
The offending the subject of charge 5 was not a fleeting attempt to penetrate the complainant. It involved at least two separate attempted penetrations in different parts of the home. First, the applicant attempted to force his penis into the complainant’s vagina while they were in her bedroom. Secondly, he attempted to insert his finger into her vagina while they were in the lounge room. He then followed her to her bedroom and pinned her arms down. He stopped only after she began to cry hysterically. The ordeal must have been terrifying for the complainant.
Having regard to the maximum penalty of 20 years’ imprisonment for the offence of attempted rape, the sentence of 5 years was very lenient. Cumulation of 40 per cent of that sentence could not sensibly be regarded as manifestly excessive.
Totality principle
The gravamen of the applicant’s challenge to his sentence was that the total effective sentence of 15 years’ imprisonment infringed the totality principle.
The totality principle requires that, when a court sentences an offender for multiple offences, the overall sentence must be a ‘just and appropriate measure of the total criminality involved’.[38] In our opinion, the total effective sentence of 15 years’ imprisonment does not infringe the totality principle. The sentence is proportionate to the gravity of the applicant’s overall offending, which extended over a prolonged period of nearly seven years, involved regular and persistent sexual abuse and caused serious harm to the complainant. The applicant’s counsel was right to describe it as ‘nothing short of dreadful, outrageous, [and] despicable’ and the judge was right to describe it as ‘most serious and disturbing … abhorrent and repugnant’.[39]
[38]Postiglione v The Queen (1997) 189 CLR 295, 307–8; DPP v Oksuz (2015) 47 VR 731, 761 [131] (‘Oksuz’).
[39]See [37] above.
A particularly disturbing feature of the offending is that the applicant used the complainant as his sexual object from the age of 12 when, as her stepfather, he should have protected her and made her feel safe in her own home. He had regular penile-vaginal sex with her for nearly two years. He bribed and psychologically manipulated her to ensure her continued compliance. The applicant’s abuse resumed three years later, when the form of abuse escalated to oral and anal penetration, with the latter involving aggression and force and causing pain to the complainant. This abuse lasted for eight months. Following a break of a year, the applicant attempted to rape the complainant in a violent, humiliating and distressing manner. The resumption of offending following two temporal breaks had the effect of re-traumatising the complainant. This added to the applicant’s moral culpability and warranted greater cumulation.
Throughout each period of offending, the applicant exercised various methods of control over the complainant. They included: psychological control, by informing her that ‘Daddy will get into trouble’ if she disclosed the offending; control of her finances and thereby her independence; and, frequently, physical control, in which he would forcefully restrain her so that he could engage in penile penetration in the face of her protests and struggles against him.
We accept that the applicant was able to call in aid the mitigating factors referred to at [50] above. We agree with the judge that the applicant’s prospects of rehabilitation had to be assessed as ‘guarded’.[40] Remorse was not an important factor in mitigation, given the applicant’s initial denials of wrongdoing and his false assertion that the complainant had instigated sexual activity.
[40]See [40] above.
The main mitigating factor in the present case was the applicant’s plea of guilty. That warranted a significant sentencing discount. That is precisely what the applicant received. In the absence of the plea of guilty and the other mitigating circumstances, the applicant’s offending would have warranted a significantly higher sentence.
Conclusion
For the above reasons, the application for leave to appeal will be refused.
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