D P C v The Queen

[2011] VSCA 395

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0196
DPC	Appellant
v
THE QUEEN	Respondent

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JUDGES	NETTLE JA, LASRY and ROSS AJJA
WHERE HELD	MELBOURNE
DATES OF HEARING	15 and 24 November 2011
DATE OF JUDGMENT	29 November 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 395
JUDGMENT APPEALED FROM	DPP v [DPC] (Unreported, County Court of Victoria, Judge Lacava, 9 June 2010)

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CRIMINAL LAW – Sentence appeal – Sexual offences against three separate children (24 charges) spanning almost a decade between January 1970 and April 1979 – Total effective sentence of 13 years and 6 months’ imprisonment with non-parole period of nine years – Fresh evidence admitted as to state of the appellant’s health in custody – Elderly offender – Guilty plea – Failure to provide an appropriate demonstrable discount for the appellant’s voluntary confession of crimes that otherwise might not have been detected – Resentenced to total effective sentence of 12 years’ imprisonment with non-parole period of seven years’ imprisonment – Sentence not manifestly excessive.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr C B Boyce	Rainer Martini & Assoc
For the Crown	Mr J D McArdle QC	Mr C Hyland, Solicitor for Public Prosecutions

NETTLE JA:

1. I have had the advantage of reading in draft the reasons for judgment of Ross AJA.

1. I agree with his Honour that the sentencing judge erred by failing to allow an appreciable discount on individual sentences imposed on counts of offending voluntarily disclosed by the appellant to investigating police.  The Crown’s contention to the contrary, that the judge allowed a sufficient discount by ordering that those individual sentences be served concurrently, is untenable.

1. I am also inclined to agree with Ross AJA that evidence that the appellant recently suffered an angina attack is admissible under the principles essayed in Eliasenv R:[1] as throwing new light on a matter which was the subject of evidence and consideration below.  But, like Ross AJA, I doubt it makes much difference.  As the Crown submitted, the evidence is fairly thin and so, therefore, hardly compelling. 

   [1]Eliasen v R (1991) 53 A Crim R 391.

1. In the result, I would join with Ross AJA in allowing the appeal and in the orders he proposes for the re-sentencing of the appellant to a total effective sentence of 12 years’ imprisonment with a non-parole period of seven years. 

LASRY AJA:

1. I have had the advantage of reading the draft reasons of Ross AJA and I agree with his Honour’s reasons and the orders he proposes.

ROSS AJA:

1. In March 2010, the appellant, now aged 76, pleaded guilty in the County Court in Melbourne to 24 charges involving sexual offending against three separate children.

1. The offences occurred between January 1970 and April 1979.  The three victims AC, WP and ACL, were all young children.  AC and ACL lived in the same street as the appellant, WP was the appellant’s daughter.

1. The appellant was sentenced on 9 June 2010 as follows:

Charge on Indictment	Offence	Maximum	Sentence	Cumulation
1	Indecent Assault ‘AC’	5 years imprisonment [s 55 Crimes Act 1958 (Vic)]	1 year imprisonment	Concurrent
2	Indecent Assault ‘AC’	5 years imprisonment [s 55 Crimes Act 1958 (Vic)]	2 years imprisonment	Concurrent
3	Carnal Knowledge ‘AC’	20 years imprisonment [s 46 Crimes Act 1958 (Vic)]	5 years imprisonment	Base
4	Indecent Assault ‘AC’	5 years imprisonment [s 55 Crimes Act 1958 (Vic)]	2 years imprisonment	Concurrent
5	Carnal Knowledge ‘AC’	20 years imprisonment [s 46 Crimes Act 1958 (Vic)]	5 years imprisonment	Concurrent
6	Indecent Assault ‘WP’	5 years imprisonment [s 55 Crimes Act 1958 (Vic)]	2 years imprisonment	1 year cumulative
7	Indecent Assault ‘WP’	5 years imprisonment [s 55 Crimes Act 1958 (Vic)]	2 years imprisonment	Concurrent
8	Indecent Assault ‘WP’	5 years imprisonment [s 55 Crimes Act 1958 (Vic)]	2 years imprisonment	Concurrent
9	Gross Indecency ‘WP’	2 years imprisonment [s 69(1)(a) Crimes Act 1958 (Vic)]	1 year imprisonment	Concurrent
10	Indecent Assault ‘WP’	5 years imprisonment [s 55 Crimes Act 1958 (Vic)]	2 years imprisonment	1 year cumulative
11	Gross Indecency ‘WP’	2 years imprisonment [s 69(1)(a) Crimes Act 1958 (Vic)]	1 year imprisonment	Concurrent
12	Procuring the Commission of an act of Gross Indecency ‘WP’	2 years imprisonment [s 69(1)(b) Crimes Act 1958 (Vic)]	6 months imprisonment	3 months cumulative

13	Procuring the Commission of an act of Gross Indecency ‘ACL’	2 years imprisonment [s 69(1)(b) Crimes Act 1958 (Vic)]	6 months imprisonment	Concurrent
14	Indecent Assault ‘ACL’	5 years imprisonment [s 55 Crimes Act 1958 (Vic)]	6 months imprisonment	Concurrent
15	Indecent Assault ‘ACL’	5 years imprisonment [s 55 Crimes Act 1958 (Vic)]	6 months imprisonment	3 months cumulative
16	Indecent Assault ‘WP’	5 years imprisonment [s 55 Crimes Act 1958 (Vic)]	6 months imprisonment	Concurrent
17	Carnal Knowledge ‘WP’	20 years imprisonment [s 46 Crimes Act 1958 (Vic)]	5 years imprisonment	3 years cumulative
18	Gross Indecency ‘WP’	2 years imprisonment [s 69(1)(a) Crimes Act 1958 (Vic)]	6 months imprisonment	3 months cumulative
19	Gross Indecency ‘ACL’	2 years imprisonment [s 69(1)(a) Crimes Act 1958 (Vic)]	6 months imprisonment	3 months cumulative
20	Indecent Assault ‘WP’	5 years imprisonment [s 55 Crimes Act 1958 (Vic)]	6 months imprisonment	Concurrent
21	Gross Indecency ‘WP’	2 years imprisonment [s 69(1)(a) Crimes Act 1958 (Vic)]	1 year imprisonment	Concurrent
22	Carnal Knowledge ‘WP’	20 years imprisonment [s 46 Crimes Act 1958 (Vic)]	5 years imprisonment	2 years cumulative
23	Indecent Assault ‘WP’	5 years imprisonment [s 55 Crimes Act 1958 (Vic)]	1 year imprisonment	6 months cumulative
24	Gross Indecency ‘WP’	2 years imprisonment [s 69(1)(a) Crimes Act 1958 (Vic)]	6 months imprisonment	Concurrent
Other orders: Forensic Sample Order pursuant to s 464ZF(2) Crimes Act 1958 (Vic) Sentenced as a Serious Sexual Offender pursuant to Part 2A Sentencing Act 1991 (Vic) Reporting Order for Life pursuant to the Sex Offenders Registration Act 2004 (Vic)

1. The total effective sentence was 13 years and six months’ imprisonment.  The sentencing judge fixed a non-parole period of nine years’ imprisonment, and stated that but for the plea of guilty he would have imposed a sentence of 18 years’ imprisonment with a non-parole period of 14 years.

1. Counts 6, 7, 8, 9, 10, 11, 21 and 22 are representative counts.

1. On 15 April 2011 Redlich JA granted the appellant leave to appeal sentence.

Overview of Facts and Proceedings

1. I propose to first deal briefly with the circumstance surrounding each charge.

1. Counts 1 to 5 relate to AC, who was 8 to 9 years old in 1970, the time of the offending.  On the first occasion, AC masturbated the appellant in his panel van (Count 1 – Indecent Assault) and the appellant inserted his finger into AC’s vagina (Count 2 – Indecent Assault).  The appellant then inserted his penis into AC’s vagina (Count 3 – Carnal Knowledge).  On a separate occasion at the appellant’s home, the appellant inserted his finger into AC’s vagina (Count 4 – Indecent Assault).  The appellant then inserted his penis into AC’s vagina (Count 5 – Carnal Knowledge).

1. Counts 6 to 9 relate to WP, who was 4 years old in 1973, the time of the offending.  The appellant stated ‘Let’s go play The Game’ and took WP to his bedroom.  The appellant inserted his finger in WP’s vagina (Count 6 – Indecent Assault) and then licked and sucked her vagina (Count 7 – Indecent Assault).  The appellant proceeded to pull WP closer to the edge of the bed and put his penis against WP’s vagina (Count 8 – Indecent Assault).  The appellant then masturbated and ejaculated over WP’s vagina (Count 9 – Committing an act of Gross Indecency).  Counts 6 to 9 are representative counts, with similar conduct occurring on a weekly basis over a six month period.  The appellant ejaculated on every occasion.

1. Counts 10 and 11 relate to an occasion when the appellant called WP into his workshop in the backyard of the Ferntree Gully premises.  The appellant showed WP pornographic magazines containing images of adults and pre-pubescent children.  The appellant removed WP’s underpants and placed his penis against her vagina (Count 10 – Indecent Assault).  The appellant then masturbated and ejaculated over WP (Count 11 – Committing an act of Gross Indecency).  Counts 10 and 11 are representative counts with similar conduct occurring on a weekly basis over the same six month period as Counts 6 to 9.  The appellant ejaculated on every occasion.  During the period of offending the appellant bought WP gifts and told WP that if she told anyone he would go to jail.  

1. Counts 12 to 19 relate to both WP and ACL, who were 5 to 6 years old at the time of the offending.  On an occasion between 1 January 1975 and 31 December 1975, ACL was playing with WP at the appellant’s home when the appellant asked WP if she wanted to play ‘The Game’.

1. The appellant asked WP to urinate over the bath in his and ACL’s presence (Count 12 – Procuring an act of Gross Indecency).  The appellant then asked ACL to urinate over the toilet with her legs open whilst he bent over and watched (Count 13 – Procuring an act of Gross Indecency).  The appellant then wiped ACL’s vagina after she had finished urinating (Count 14 – Indecent Assault).  After ACL had urinated, she and WP lay on the appellant’s bed, neither child wearing underpants.  The appellant proceeded to wipe both ACL’s vagina (Count 15 – Indecent Assault) and WP’s vagina (Count 16 – Indecent Assault).  In ACL’s presence, the appellant inserted his penis into WP’s vagina (Count 17 – Carnal Knowledge).  The appellant masturbated and ejaculated over WP’s vagina (Count 18 – Committing an act of Gross Indecency) in ACL’s presence (Count 19 – Committing an act of Gross Indecency).

1. Counts 20 to 22 relate to WP, who was 8 years old at the time of the offending.  One evening, the appellant woke WP in her bedroom.  The appellant had placed his hand inside WP’s underpants (Count 20 – Indecent Assault).  WP made ‘tired sounds’ and said no.  The appellant then took WP to his bedroom and proceeded to put his penis inside WP’s vagina (Count 22 – Carnal Knowledge) and then masturbated until he ejaculated (Count 21 – Committing an act of Gross Indecency).  Counts 21 and 22 are representative counts, with the conduct occurring twice a week during October 1977 while the appellant’s wife was overseas.  The appellant ejaculated on every occasion.

1. On 17 April 1979, WP was upset about the death of her grandmother and went to the appellant’s bedroom for comfort.  WP lay on the bedding with her head on the appellant’s pillow and the appellant lay on top of WP and placed his erect penis behind WP’s vagina and near her bottom.  The appellant proceeded to move up and down and was breathing heavily (Count 23 – Indecent Assault).  The appellant masturbated himself with his right hand until he ejaculated over WP (Count 24 – Committing an act of Gross Indecency).

1. In 1991, WP wrote a letter to the appellant addressing the years of sexual abuse and by 2004 the appellant apologised to WP for his actions.  In March 2009 WP reported the sexual abuse to police following which the appellant was formally interviewed on 8 April 2009.  The appellant admitted the offending pertaining to WP and ACL and disclosed information relating to AC, in response to questioning by police.

Grounds of Appeal

1. The appellant advances two grounds of appeal:

Ground 1: The sentences imposed on each count of offending against AC (Counts 1-5) are manifestly excessive and fail to take into account the fact of voluntary disclosure.

Ground 2: The sentences on each count, the orders for cumulation and the non-parole period are manifestly excessive in all the circumstances.

1. Before turning to the grounds of appeal I propose to deal with some additional material concerning the appellant’s health in custody.  This material is sought to be admitted as fresh evidence on the appeal.

1. The relevant facts are not in dispute.  On 27 October 2011 the appellant suffered an attack of central chest pain that radiated to his neck and he was transferred to Ararat Hospital for observation.  The appellant has been referred to a cardiologist, but that examination has not yet taken place.

1. A file note of 3 November 2011 in the appellant’s Justice Health file records the appellant suffering from severe headaches, his cardiac enzymes remained normal and he had experienced no further chest pain.

1. Counsel for the appellant submitted that the evidence shows that the appellant suffers angina in custody and that it has been necessary to take the appellant to hospital for further tests and follow up.  It is submitted that the material calls into question the sentencing judge’s finding that the appellant’s state of health will not make service of the appellant’s sentence a greater burden.  On this basis it is submitted that the new material is admissible as fresh evidence on appeal.

1. In his reasons for sentence his Honour deals with the issue of whether incarceration will have an adverse impact on the appellant’s health, at paragraphs [87]–[90], as follows:

[87]As I pointed out earlier, you fall to be sentenced as a person now 75 years old.  That alone raises important sentencing considerations.  One such consideration is your present state of health, what is it, can it be properly managed in prison and will being incarcerated have an adverse effect upon your health?

[88]I admitted into evidence a medical report from your general practitioner Dr Wong dated 19 January 2010.  That report states the medical conditions from which you presently suffer.  In summary form those conditions are:

·     High Cholesterol for which you have been medicated on Lipitor 40 mg daily since 1999;

·     Recurrent atrial fibrillation since 2004.  This is described as being “under control”.  For this you are medicated with Flecatab 100 mg twice daily and Sotacor 40 mg twice daily;

·     Diabetes mellitus controlled by a diabetic diet without medication;

·     Some emphysema caused by passed smoking causing some coughing and breathlessness on exertion.  You are not presently medicated for this.

·     Gastroesophageal reflux disease for which you are medicated with Somac 40 mg daily.

[89]Dr Wong opines:

“In my opinion, a term of imprisonment would not affect his physical health significantly as long as he gets his usual medical treatment outlined above, including proper diet and exercise.  However, one would imagine the psychological trauma of imprisonment could be quite devastating for someone his age and health.”

[90]In passing sentence I have accepted and acted upon the report of Dr Wong.  It summarises your medical conditions and says that you can be adequately cared for within the confines of a prison provided you receive your prescribed medication and maintain a proper exercise regime.  On the evidence available to me I cannot conclude that imprisonment will adversely affect your health, although I accept that you will not be as comfortable in prison as you would be if you remained in your own home.  In passing sentence I take your state of health into account as a mitigating factor but, having regard to the opinion and report of Dr Wong, the weight to be placed on this as a mitigating factor is limited.  I cannot conclude that your state of health will make imprisonment a greater burden.

1. The evidence before the sentencing judge makes no reference to angina.  Hence the additional material throws a new light on facts relating to the appellant’s state of health at the time of sentence.  The respondent did not oppose the admission of the new material but submitted that the material did not add much.  Applying the principles set out R v Duy Duc Nguyen[2] I would admit the material as fresh evidence.

   [2] [2006] VSCA 184, [34]–[38] (Redlich JA, with whom Maxwell P and Neave JA agreed).

1. Upon the admission of the new evidence it is, strictly speaking, unnecessary to consider the grounds of appeal further; the question now being whether, on all the material before the court, any different sentence should be substituted to avoid a miscarriage of justice.  But in the context of this case it is desirable to deal with the grounds of appeal as a consideration of those grounds will effect the sentence to be imposed by the court.

Ground 1

1. The essence of this ground is that the sentencing judge did not provide an appropriate discount for the offending against AC in circumstances where but for

   
   

   the appellant’s disclosure of the offending it is unlikely he would have been prosecuted for these offences.

1. The appellant disclosed in his record of interview that he had offended against another child, separate from WP and ACL.  The appellant did what he could do to identify her.  As a result of this disclosure, police obtained a statement from AC and the appellant was charged with having offended against her.  But for the appellant’s disclosure it is unlikely that he would ever have been charged with so offending.

1. Counsel on the plea sought a demonstrable discount to reflect this volunteered confession.

1. The sentencing judge acknowledged the volunteered confession and that the matters confessed were not previously known to investigators.  The judge accepted this matter as being relevant in mitigation.  At [93] of the reasons for sentence his Honour said:

Further, when formally interviewed by police on 8 April 2009 you volunteered to police information that related to your offending against AC that was not previously known to investigators.  See questions 533 to 542 of the Record of Interview depositions p 152.  That is another factor which I have taken into account by way of mitigation.

1. Despite his Honour’s acknowledgment of the mitigatory effect of the appellant’s volunteered confession, the sentences for the counts of carnal knowledge of AC (Counts 3 and 5) were the same as those imposed in respect of Counts 17 and 22 for carnal knowledge of WP and the sentences for the indecent assault were the same as those for indecent assaults involving similar acts against WP (Counts 6–8, 10 and 23).  This is so despite the fact that:

(a)     the acts against AC were broadly the same as those performed against WP;

(b)     the offending against WP was aggravated by virtue of the fact that WP was the appellant’s daughter; and

(c)     counts 6-8, 10 and 22 were representative counts, and at the time of the offending AC was 8-9 years’ old and WP was 4-8 years’ old.

1. An accused who voluntarily discloses offences to the authorities is entitled to a discount in sentence.  The policy basis for such a discount is explained by Kirby J in Ryan v The Queen.[3]There his Honour referred to the public interest attached to the revelation of additional offences which would have been difficult to prove without confession and to the importance of a public confession of wrongdoing so that the victims would realise that they were wholly innocent.[4]  His Honour continued:[5]

Unless persons such as the appellant are encouraged to bring unreported cases to notice, the likelihood is that, in the great majority of instances, such crimes will not be reported.  They will therefore go unpunished.  Accordingly, both from the point of view of society and of the victims of crime, there are strong reasons of policy why the law should encourage offenders to make full confessions.  It should certainly not discourage them.  Encouraging a full confession may also be an important first step in securing help for, and counselling of, the offender.  This is, likewise, one of the objectives of criminal punishment and thus of judicial sentencing.

[3] (2001) 206 CLR 267 (‘Ryan’).

[4]Ibid 295.

[5] Ibid [94].

1. In R v Ellis,[6] Street CJ, with whom Hunt and Allen JJA agreed, said:

The leniency that follows a confession of guilt in the form of a plea of guilty is a well recognised part of the body of principles that cover sentencing.  Although less well recognised, because less frequently encountered, the disclosure of an otherwise unknown guilt of an offence merits a significant added element of leniency, the degree of which will vary according to the degree of likelihood of that guilt being discovered by the law enforcement authorities, as well as guilt being established against the person concerned (emphasis added).

[6] (1986) 6 NSWLR 603, 604.

1. Similar observations have been made in this Court.  In R v Doran,[7] Buchanan JA, with whom Eames and Nettle JJA agreed, said:

Most importantly, however, the appellant quite voluntarily, without any pressure from any authorities, provided the prosecution with all the evidence necessary to convict him of the majority of the crimes.  In my view, the consequences of the appellant’s admissions are that they reduce the need for a sentence to personally deter the appellant, they increase the prospects of his successful rehabilitation and they demonstrate genuine remorse for his actions.  I would add that I think it important that the appellant should receive a demonstrable discount in his sentence in order to encourage others to make like admissions (emphasis added).

I note that Doran was cited to the sentencing judge.

[7] [2005] VSCA 271, [14] (‘Doran’).

1. The short point put on behalf of the appellant is that ‘a significant added element of leniency’ was warranted in this case and such added leniency is not discernable from the sentences imposed.

1. The respondent submits that the sentencing judge took into account and appropriately mitigated the appellant’s sentence with regard to this factor.  It is submitted that such consideration is demonstrated by the order of complete concurrency on Counts 1, 2, 4 and 5.  Such orders for concurrency are said to be  lenient in the circumstances of the case.

1. The respondent also submitted that the circumstances and extent of the appellant’s disclosure did not warrant any further mitigation of his sentence.  The respondent sought to distinguish the present case from the circumstances and extent of the disclosures in Ryan and Doran.  In both Ryan and Doran, the accused volunteered information to the police that disclosed numerous additional offences committed against children.  In addition to providing particular details about the additional offences, the prosecution solely relied on the admissions made by the accused to prove the offences beyond reasonable doubt.  Further, such admissions were made entirely voluntarily and without any probing by police.

1. In the appellant’s case, the respondent submits, he disclosed that he had offended against AC only in response to questioning by police.  He was vague about the particulars of the offending and limited the extent of his conduct to one occasion.[8]  The respondent submits that it is highly unlikely that the prosecution of these matters would have been able to proceed as expressed in Counts 1 to 5 without AC’s statement.

   [8]See also: Psychological report by Dr Lester Walton, Consultant Psychiatrist, dated 15 September 2009, p 1. The appellant told Dr Walton that he regarded AC as having provided a somewhat exaggerated account to police.

1. It is on this basis that the respondent submits that the sentencing judge appropriately afforded a discount of the appellant’s voluntary disclosure and that it cannot be said that the form in which the discount took effect resulted in manifestly excessive sentences being imposed on Counts 1 to 5.

1. There can be no doubting the seriousness of these offences.  By his actions the appellant has robbed three children of their innocence.  It is apparent from the victim impact statements that his offending has had a profound and lasting impact upon his victims.  Judicial denunciation of the crimes and general deterrence were clearly important sentencing considerations in this case.

1. In his careful and comprehensive sentencing reasons the sentencing judge dealt with the relevant principles and the crimes certainly warranted stern punishment.  But despite these considerations I am not persuaded that the sentence imposed on the appellant appropriately reflects the discount which he was due by virtue of his voluntary confession.

1. As to the respondent’s submissions, the suggestion that the orders for concurrency in respect of Counts 1, 2, 4 and 5 sufficiently provide a demonstrable discount ignores the fact that a sentence of five years’ imprisonment was imposed in respect of Count 3 and that then became the base sentence.

1. For completeness I note that in the course of oral argument counsel for the respondent submitted that the sentencing judge’s selection of the sentence imposed on Count 3 as the base sentence, is not material.  In the respondent’s submission the base sentence could have just as easily been one of the sentences imposed on the other carnal knowledge counts (ie. Counts 17 or 22) and in consequence the total effective sentence would have been the same.

1. There is no substance to this point.  It ignores the degree of cumulation order in respect of the sentences imposed on Counts 17 and 22.

1. It is telling that the sentence for the counts of carnal knowledge of AC (Counts 3 and 5) was the same as that imposed on Counts 17 and 22, carnal knowledge of WP, in circumstances where the offending against WP was aggravated by the fact that WP was the appellant’s daughter.

1. It is also relevant to note that his Honour made orders for concurrency in respect of a number of the counts which involved WP and ACL (Counts 7, 8, 9, 11, 13, 14, 16, 20, 21 and 24).  Hence there was nothing particularly striking about the concurrency orders in respect of Counts 1, 2, 4 and 5.

1. Nor am I persuaded by the submission that the circumstances and extent of the appellant’s disclosure were such that no further mitigation of his sentence was warranted.  Given the passage of time it is unsurprising that the appellant was vague about his offending in respect of AC.  The important consideration is that his disclosure was voluntary and corroborative of remorse.  The value of the disclosure is not diminished by the fact that it was provided in response to a question as to whether he had sex with any other children (ie. other than WP and ACL).

1. The failure to provide a demonstrable discount on account of the appellant’s voluntary disclosure of his offending against AC was an error.  I would uphold Ground 1.  On that basis, and having regard to the fresh evidence as to the greater burden of imprisonment upon the appellant given his state of health, I would resentence the appellant by setting aside the orders made in respect of Counts 1–5 and order that the appellant be sentenced to nine months’ imprisonment on Count 1; 18 months’ imprisonment on Count 2; three years’ imprisonment on Count 3; 18 months’ imprisonment on Count 4 and three years’ imprisonment on Count 5.  Count 17 would then become the base sentence and I would order that 18 months of the sentence imposed on Count 3 be cumulated on the base sentence.  These orders would result in a total effective sentence of 12 years’ imprisonment.  I would fix a non-parole period of seven years’ imprisonment.[9]

Ground 2

[9]The individual sentences and orders for cumulation are set out in the appendix.

1. The appellant submits that the sentences imposed for the nominated offences in the ground of appeal are manifestly excessive in all the circumstances but in particular having regard to:

(a)        the delay between offending and sentence and between the disclosure of the offending and sentence;

(b)        the fact that the appellant was in effect rehabilitated by the time that he came to be sentenced;

(c)        the appellant’s age at the date of sentence and the fact that any sentence of imprisonment would represent a significant proportion of the life that he had left;

(d)       the fact that the appellant voluntarily disclosed offending not already known to investigators;

(e)        that the appellant had real remorse and insight into his offending;

(f)         the appellant’s otherwise good character;

(g)        the appellant’s full co-operation with investigators and early plea of guilty; and

(h)        applicable sentencing practices.

1. Further, in light of these matters and all the circumstances of the case, it is submitted that the orders for cumulation produced an overall sentence (inclusive of non-parole period) that was manifestly excessive.

1. This submission must now be assessed in light of the reduction in the total effective sentence and non-parole period as a consequence of the new evidence and first ground of appeal being upheld.

1. I observe at the outset that such complaints are often difficult to sustain.  As Maxwell P observed in R v Abbott:[10]

It follows that the ground of manifest excess will only succeed if it can be shown that no reasonable sentencing judge could have imposed this sentence on this offender for this offence in these circumstances.  That is a stringent requirement difficult to satisfy.

[10] (2007) 170 A Crim R 306, 309 [14].

1. It is apparent from the reasons for sentence that his Honour took into account and appropriately weighed all matters put in mitigation.  In particular, his Honour had regard to, among other matters:

(i)         the pleas of guilty, having been made at the earliest opportunity (at [69]-[73]);

(ii)       the fact that the appellant was truly remorseful for what he has done and for the pain and hurt he has caused his victims (at [73]-[74]);

(iii)      the appellant’s personal circumstances and difficult background (at [79]–[84]);

(iv)      the appellant’s otherwise good character – there being no prior offending, nor any subsequent offending after 1979 (at [85] and [96]–[98]);

(v)        the appellant’s advanced age and state of health (at [87]-[90] and [94]);

(vi)      delay (at [91]–[92]);[11] and

(vii)     the respondent was ‘well advanced’ in terms of rehabilitating himself (at [120]).

[11]           Also see generally [107]–[108].

1. But, as I have mentioned, this was serious sexual offending against three young children, one of whom was the appellant’s daughter.  The offending spanned almost a decade, between January 1970 and April 1979.

1. The offences against AC took place in 1970.  AC was eight or nine years old at that time.

1. Offending against WP (the appellant’s daughter) occurred between 1 June 1973 and 31 December 1973, she was four years old at that time.  The type of act in Counts 6 to 9 occurred on a weekly basis over this six month period.  The appellant also committed offences against WP in 1975, when she was five or six years of age, in 1977, when she was eight years old and in 1979 when she was nine years of age.

1. The offences against ACL took place in 1975, when she was aged five to six years.

1. It is also relevant that eight of the counts to which the appellant pleaded guilty were representative counts.  The effect of ‘representative counts’ in sentencing was explained by Nettle JA in DPP v EB:[12]

…the fact that a count is a representative count serves to preclude it being said in mitigation of penalty that it was but an isolated offence, and, additionally, it enables the offence to be seen in its full circumstantial context.  Thus a representative offence is likely to attract a greater sentence than an isolated offence.

[12] [2008] VSCA 127, [15]; citing Batt JA in R v SBL [1999] 1 VR 706, 726 [70].

1. The appellant was also sentenced as a serious sexual offender on Counts 3 to 24 inclusive.  It follows that the sentences imposed for charges 3 – 24 inclusive were to be cumulative unless otherwise directed.  The relevant provisions of the Sentencing Act have the effect of moderating the principle of totality.[13]

   [13]           R H McL v The Queen (2000) 203 CLR 452, 476–7 (McHugh, Gummow and Hayne JJ).

1. In his reasons for sentence his Honour correctly emphasised the need for public denunciation (at [110] and [117]) and general deterrence (at [114]-[115]) in relation to offending of this type.  His Honour had regard to the principle of totality and proportionality (at [107]–[108]) and was conscious of the need to impose a punishment which was, in all the circumstances, just (at [121]).  Having regard to the appellant’s advanced age and lack of subsequent offending his Honour, properly, did not place significant weight on the need for specific deterrence or upon a perceived need to protect the community from the appellant (at [118]–[119]).

1. As the respondent acknowledges, the orders for cumulation may have been differently structured between Counts 17 and 22 in order to reflect the representative nature of Count 22.  I do not consider that the orders for cumulation made in respect of the non representative counts were inappropriate, having regard to the age of the children and the need for denunciation and general deterrence.  It will often be appropriate to cumulate a greater proportion of the sentence imposed on a representative count than the proportion cumulated for a count which is not representative.[14]  However no specific error is alleged by the appellant in this case; it is a ground of manifest excess.  Further, I am not persuaded that a different total effective sentence and non-parole period would have resulted from such an exercise.  As Callaway JA observed in R v Belhaj, ‘overworked trial judges cannot be expected to fine tune every sentence.  Care is one thing but pedantry is another’.[15] 

   [14]           R v AMP [2010] VSCA 48, [47] (Neave and Redlich JJA).

   [15] [2006] VSCA 153, [7].

1. I am satisfied that, save for the amendments made to sentences imposed on Counts 1–5 and the consequent reduction in the total effective sentence and the non-parole period as a result of upholding appeal Ground 1 and having regard to the fresh evidence as to the burden of imprisonment upon the appellant, his Honour’s sentence was within the permissible range for this kind of offending.  I would dismiss the second ground of appeal.  

1. As indicated earlier I would resentence the appellant by setting aside the orders made in respect of Counts 1–5 and making the orders set out above at [50]. These orders result in a total effective sentence of 12 years’ imprisonment and I would fix a non-parole period of seven years’ imprisonment. But for the guilty pleas I would have imposed a total effective sentence of 15 years’ imprisonment with a non-parole period of nine years’ imprisonment.

APPENDIX

Charge on Indictment	Offence	Maximum	Sentence	Cumulation
1	Indecent Assault ‘AC’	5 years imprisonment [s 55 Crimes Act 1958 (Vic)]	9 months imprisonment	–
2	Indecent Assault ‘AC’	5 years imprisonment [s 55 Crimes Act 1958 (Vic)]	18 months imprisonment	–
3	Carnal Knowledge ‘AC’	20 years imprisonment [s 46 Crimes Act 1958 (Vic)]	3 years imprisonment	18 months
4	Indecent Assault ‘AC’	5 years imprisonment [s 55 Crimes Act 1958 (Vic)]	18 months imprisonment	–
5	Carnal Knowledge ‘AC’	20 years imprisonment [s 46 Crimes Act 1958 (Vic)]	3 years imprisonment	–
6	Indecent Assault ‘WP’	5 years imprisonment [s 55 Crimes Act 1958 (Vic)]	2 years imprisonment	1 year
7	Indecent Assault ‘WP’	5 years imprisonment [s 55 Crimes Act 1958 (Vic)]	2 years imprisonment	–
8	Indecent Assault ‘WP’	5 years imprisonment [s 55 Crimes Act 1958 (Vic)]	2 years imprisonment	–
9	Gross Indecency ‘WP’	2 years imprisonment [s 69(1)(a) Crimes Act 1958 (Vic)]	1 year imprisonment	–
10	Indecent Assault ‘WP’	5 years imprisonment [s 55 Crimes Act 1958 (Vic)]	2 years imprisonment	1 year
11	Gross Indecency ‘WP’	2 years imprisonment [s 69(1)(a) Crimes Act 1958 (Vic)]	1 year imprisonment	–
12	Procuring the Commission of an act of Gross Indecency ‘WP’	2 years imprisonment [s 69(1)(b) Crimes Act 1958 (Vic)]	6 months imprisonment	3 months
13	Procuring the Commission of an act of Gross Indecency ‘ACL’	2 years imprisonment [s 69(1)(b) Crimes Act 1958 (Vic)]	6 months imprisonment	–
14	Indecent Assault ‘ACL’	5 years imprisonment [s 55 Crimes Act 1958 (Vic)]	6 months imprisonment	–
15	Indecent Assault ‘ACL’	5 years imprisonment [s 55 Crimes Act 1958 (Vic)]	6 months imprisonment	3 months
16	Indecent Assault ‘WP’	5 years imprisonment [s 55 Crimes Act 1958 (Vic)]	6 months imprisonment	–
17	Carnal Knowledge ‘WP’	20 years imprisonment [s 46 Crimes Act 1958 (Vic)]	5 years imprisonment	Base
18	Gross Indecency ‘WP’	2 years imprisonment [s 69(1)(a) Crimes Act 1958 (Vic)]	6 months imprisonment	3 months
19	Gross Indecency ‘ACL’	2 years imprisonment [s 69(1)(a) Crimes Act 1958 (Vic)]	6 months imprisonment	3 months
20	Indecent Assault ‘WP’	5 years imprisonment [s 55 Crimes Act 1958 (Vic)]	6 months imprisonment	–

21	Gross Indecency ‘WP’	2 years imprisonment [s 69(1)(a) Crimes Act 1958 (Vic)]		1 year imprisonment	–
22	Carnal Knowledge ‘WP’	20 years imprisonment [s 46 Crimes Act 1958 (Vic)]		5 years imprisonment	2 years
23	Indecent Assault ‘WP’	5 years imprisonment [s 55 Crimes Act 1958 (Vic)]		1 year imprisonment	6 months
24	Gross Indecency ‘WP’	2 years imprisonment [s 69(1)(a) Crimes Act 1958 (Vic)]		6 months imprisonment	–
Total Effective Sentence:			12 years’ imprisonment
Non-Parole Period:			7 years’ imprisonment
6AAA Statement:			TES:  15 years imprisonment NPP:  9 years imprisonment
Other orders: Forensic Sample Order pursuant to s 464ZF(2) Crimes Act 1958 (Vic) Sentenced as a Serious Sexual Offender pursuant to Part 2A Sentencing Act 1991 (Vic) Reporting Order for Life pursuant to the Sex Offenders Registration Act 2004 (Vic)

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