Davy v The Queen
[2011] VSCA 98
•8 APRIL 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2009 0541
| CRAIG LAWRENCE DAVY | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | BONGIORNO, HARPER and HANSEN JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 1 FEBRUARY 2011 |
| DATE OF JUDGMENT | 8 APRIL 2011 |
| MEDIUM NEUTRAL CITATION | [2011] VSCA 98 |
| JUDGMENT APPEALED FROM | R v Davy (Unreported, County Court of Victoria, Judge Jenkins, 25 February 2009) |
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CRIMINAL LAW – Sentence appeal – Child sexual offences – 19-count presentment – Duties of prosecutors – Inadequate assistance to sentencing judge – ‘Overloaded’ presentment – Early plea of guilty – Two victims – Long period of serious offending – Statutory aggravating factors – No prior convictions – Inadequate gap between head sentence and non-parole period – Inadequate discount for early plea of guilty – Totality – Current sentencing practices – Appropriate sentencing range – Director of Public Prosecutions (Vic) v DDJ (2009) 22 VR 444 – Director of Public Prosecutions (Vic) v CPD (2009) 22 VR 533 – Director of Public Prosecutions (Vic) v OJA (2007) 172 A Crim R 181 – Appeal allowed – Appellant re-sentenced.
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| APPEARANCES: | COUNSEL | SOLICITORS |
| For the Appellant: | Mr I Hill QC with Mr A Robertson | Wood Fussell Solicitors |
| For the Crown: | Mr S Cooper | Mr C Hyland, Solicitor for Public Prosecutions |
BONGIORNO JA:
On 16 December 2008, Craig Lawrence Davy was arraigned and pleaded guilty to all counts on a 19-count presentment before her Honour Judge Jenkins in the County Court. Eleven of those counts alleged sexual offences against a male child, X, one count alleged a sexual offence against another male child, Y, five counts involved sexual offences against both X and Y and the two remaining counts were concerned with the production and possession respectively of child pornography.
On 25 February 2009, Davy was sentenced by Judge Jenkins as follows:
Count Offence Description of offending Sentence Cumulation 1 Indecent act with a child under 16.[1] Masturbating by Davy with or in the presence of X (8‑10 years old). 18 months’ imprisonment 6 months 2 Sexual penetration of a child under 16.[2] Fellatio of X (8‑10 years old) by Davy. 5 years’ imprisonment 3 years 3 Sexual penetration of a child under 16. Fellatio of Davy by X (8‑10 years old). 5 years’ imprisonment 4 Indecent act with a child under 16. Masturbating by Davy with or in the presence of X (10‑12 years old). 2 years’ imprisonment 6 months 5 Sexual penetration of a child under 16. Fellatio of X (10‑12 years old) by Davy. 4 years’ imprisonment 1 year
6 Sexual penetration of a child under 16.
Fellatio of Davy by X (10‑12 years old). 4 years’ imprisonment 7 Indecent act with a child under 16. Masturbating by Davy with or in the presence of X (12‑14 years old). 2 years’ imprisonment 6 months 8 Sexual penetration of a child under 16. Fellatio of Davy by X (12‑14 years old). 4 years’ imprisonment 1 year 9 Sexual penetration of a child under 16. Fellatio of X (12‑14 years old) by Davy. 4 years’ imprisonment 10 Sexual penetration of a child under 16. Sodomy of X (12‑14 years old) by Davy. 6 years’ imprisonment Base sentence 11 Sexual penetration of a child under 16. Sodomy of Davy by X (12‑14 years old). 6 years’ imprisonment 12 Production of child pornography.[3] Making pornographic photographs and video recordings of X and Y (X aged 9‑14 years old). 4 years’ imprisonment 2 years 13 Procuring sexual penetration of a child.[4] Fellatio of X by Y procured by Davy. 3 years’ imprisonment 14 Procuring sexual penetration of a child. Fellatio of Y by X procured by Davy. 3 years’ imprisonment 15 Procuring sexual penetration of a child. Sodomy of Y by X procured by Davy. 2 years’ imprisonment 16 Procuring sexual penetration of a child. Sodomy of X by Y procured by Davy. 3 years’ imprisonment 1 year 17 Procuring an indecent act with a child under 16.[5] X and Y masturbating, procured by Davy. 18 months’ imprisonment 18 Sexual penetration of a child under 16. Fellatio of Davy by Y. 4 years’ imprisonment 19 Knowingly possessing child pornography.[6] Possessing pornographic photographs and videos of children. 3 years’ imprisonment 1 year Total effective sentence 16 years and 6 months’ imprisonment Non-parole period 14 years [1]Crimes Act 1958 s 47(1).
[2]Crimes Act 1958 s 45(1).
[3]Crimes Act 1958 s 68(1).
[4]Crimes Act 1958 s 58(1).
[5]Crimes Act 1958 s 58(1).
[6]Crimes Act 1958 s 70(1).
The offences to which Davy pleaded guilty were all alleged to have been committed between December 2001 and April 2008 when he was between about 31 and 38 years of age. The boys concerned were not related, although they were friends and were very close in age.
X was born in 1993. Davy became acquainted with X’s family in about 1999 — two years before the first of the offences with which he was charged was committed. X began spending considerable periods of time with Davy — staying at his place on weekends and often more frequently. Davy took him shopping and to the local river. X referred to Davy as ‘Uncle Davy’. Davy was regarded as a part of X’s family and a father figure for X.
Y was also born in 1993 to a single mother who later married. He was about six weeks older than X. In about January 2006, he and his family moved to the area in which X and Davy both lived. His relationship with his mother and stepfather was not good, a situation which resulted in the Department of Human Services being involved. Y met X at school and subsequently met Davy through X. Davy also met Y’s mother and described himself to her as a father figure to X.
In about January 2007, Y became difficult and violent towards his mother and the Department of Human Services became involved again. Y and his stepfather moved to a caravan park and subsequently to another town. In about October of that year, Y contacted X and asked him to arrange for Davy to come and get him. Davy did so and subsequently became Y’s carer. He obtained the appropriate clearance for working with children and was paid a carer’s social security benefit.
In April 2008, consequent upon Y breaking a number of windows at Davy’s home, the police investigated. Y made various allegations of sexual abuse — referred to by the prosecutor in the Crown opening as ‘disclosures’[7] — against Davy. Y told police that both he and X had provided sexual favours to Davy in return for benefits which he gave them. This allegation led to a police search of Davy’s home and the discovery of pornographic material, much of it depicting X, Y and Davy engaged in sexual behaviour of various kinds. The police investigation resulted in the charges which brought Davy before the County Court.
[7]The term ‘disclosure’ is an inapt term to use with respect to allegations of sexual abuse. It begs the question as to the fact of abuse before the guilt of the accused is either admitted or proved. It should not be used, in that context, in judicial proceedings.
The 19 Counts
Davy’s offending in relation to X began when X was about 8 years old. On the first occasion on which sexual abuse occurred, X and Davy were watching television when Davy began masturbating. X did likewise. This behaviour formed the basis of count 1, a representative count of performing an indecent act with or in the presence of a child under 16 years of age. The count was said to represent at least three episodes of such offending in the period when X was between about 8 and 10 years of age. On at least some such occasions, Davy photographed X masturbating.
Some weeks after the event charged in count 1, Davy performed fellatio on X for the first time. This act formed the basis of count 2 — another representative count. This activity was repeated on at least two further occasions whilst X was between about 8 and 10 years of age. Count 3 is a count of sexual penetration of a child under the age of 16 years. It involved X fellating Davy to ejaculation when X was between about 8 and 10 years of age. Again it was alleged that this activity occurred on at least three occasions, count 3 also being a representative count. Both of counts 2 and 3 also allege the statutory aggravating circumstance that at the time the offences occurred X was less than 10 years of age.
When X was older — between 10 and 12 years of age — Davy and he engaged in mutual masturbation at Davy’s home. The first such episode during this period formed the basis of count 4 — also a representative count — of performing an indecent act with or in the presence of a child under the age of 16. There were eight or more similar episodes of mutual masturbation in this period. This activity was video recorded on at least some occasions by Davy.
Counts 5 and 6 — sexual penetration of a child under the age of 16 — were also representative counts involving mutual fellatio carried out by each of X and Davy upon the other at Davy’s instigation. In his record of interview, Davy admitted that such activity commenced when X was about 12 years of age but videos of this activity seized by police from Davy’s home had images taken on 29 December 2003 — just after X had turned 10. These counts were said to be representative of a further four and six acts of fellatio by Davy and X respectively, between December 2003 and December 2005. The acts charged in these counts were each alleged to have been committed in circumstances giving rise to an aggravating factor — that X was under the care, supervision or authority of Davy.
Count 7 was a representative count of performing an indecent act with or in the presence of a child under 16 years of age. It relates to the period when X was between 12 and 14 years of age. It involved masturbation by each of Davy and X in the presence of each other at Davy’s instigation.
Counts 8 and 9 were representative counts of sexual penetration of a child under 16. They involved mutual fellatio by Davy and X when X was between the ages of about 12 and 14. Davy admitted in his record of interview that this activity had occurred ‘maybe once a week’ and videos depicting it were found in his possession by the police. Counts 8 and 9 also allege the aggravating circumstance that at the time they were committed X was under Davy’s care, supervision or authority.
Counts 10 and 11 were representative counts of sexual penetration of a child under 16. They involved the sexual penetration of X by Davy and Davy by X when X was between 12 and 14 years of age. This sexual penetration was sodomy. In his record of interview, Davy admitted sodomising X and being sodomised by X as alleged. These counts were also subject to the aggravating circumstance that at the time they were committed X was under the care, supervision or authority of Davy.
Count 12 was a count of producing child pornography. It was not a representative count. This pornography consisted of photographs and video recordings of sexually explicit activity involving both X and Y, including material depicting sodomy and fellatio between them.
Counts 13 and 14, counts of procuring the sexual penetration of a child under 16, involved mutual fellatio by X and Y upon each other. They were representative counts and were, on some occasions at least, filmed by Davy.
Counts 15 and 16 involved allegations of sexual penetration of a child under 16 by mutual sodomy of X by Y and Y by X procured by Davy. A video recording dated 13 December 2007 seized by police from Davy’s home depicts X and Y sodomising each other. These counts were not representative counts.
Count 17 was a count of procuring an indecent act with a child under the age of 16. The facts upon which this count was based were that Davy asked X to put on a pornographic video. X did so and he and Y masturbated whilst Davy took a video recording of this activity through a window. This was not a representative count.
Count 18 was a representative count of sexual penetration of a child under the age of 16. It involved fellatio of Davy by Y at Davy’s instigation to the point of ejaculation, which occurred on Y’s abdomen. The activity charged was alleged to have occurred on four or more occasions. Again, the aggravating circumstance of Davy having been in a position of care, supervision or authority in respect of Y was alleged.
Count 19 was a count of possession of child pornography. This count involved all the video, photographic and CD material depicting child pornography (involving children aged between about 8 and about 16) seized by police at Davy’s home.
The Presentment
Absent abuse of process, it is not the function of a court to concern itself with the form of an indictment which comes before it. Provided the indictment is regular on its face, the court must try it.[8] However, as Dawson and McHugh JJ said in Maxwell v The Queen (a case concerned with a trial judge’s rejection of a plea of guilty accepted by the Crown), a court may express its view on the appropriateness of a charge or the acceptance of a plea and ‘no doubt its view will be accorded great weight’.[9] It must recognise in doing so that there may be matters of which it is ignorant which have influenced the prosecutor to frame a case in a particular way.
[8]Barton v The Queen (1980) 147 CLR 75, 94–6 (Gibbs ACJ, Mason J), 103 (Stephen J), 110 (Wilson J). See also Jago v District Court of New South Wales (1989) 168 CLR 23.
[9](1996) 184 CLR 501, 514.
The discretion that prosecutors have in relation to the framing of indictments is, of course, undoubted. However, the proper functioning of the criminal justice system and the efficient disposition of cases by trial courts is a matter of legitimate concern for this Court. Unwieldy, unnecessarily long and ‘overloaded’ indictments are productive, not only of oppression of those against whom they are brought, but also of an increased risk of judicial error in trials and in sentencing. They complicate and lengthen trials and place an unacceptable burden on trial judges and juries. It has long been accepted by prosecutors that in framing an indictment the prosecutor should aim to expose adequately the alleged criminality of the person to be arraigned and give the sentencing judge adequate scope to impose appropriate punishment, with properly constructed sentences, in the event of a conviction.
The form of the presentment in this case produced a difficult sentencing task for the primary judge. A 19-count presentment of itself can create difficulties which are compounded when most of those counts are representative counts and are based on incidents selected from a long history of offending. It might be thought that in this case properly particularised counts alleging the offence created by s 47A of the Crimes Act 1958 in respect of each of the victims and an appropriate pornography count might have been a much better course for the prosecutor to have taken. The presentment would have been considerably shorter and the real gravamen of Davy’s offending would have been exposed for what it was — persistent sexual abuse. The s 47A offence, now referred to as ‘persistent sexual abuse of a child under the age of 16’ and formerly called ‘maintaining a sexual relationship with a child under the age of 16’, would seem to have been well suited to the principal offending in this case. This might have been particularly so as, at all relevant times, Davy had indicated a preparedness to plead guilty. The full extent of Davy’s criminality could have been exposed by laying such counts with particulars alleging the most significant of the facts that formed the substance of the presentment with which the sentencing judge had to grapple. The maximum sentence for that offence is 25 years’ imprisonment, thus providing the judge with ample scope for appropriate punishment with properly structured sentences. It is not without significance that the investigating police may have had this offence in mind when they interrogated Davy. Further, the use of representative counts in this case, when there were already as many individual discrete offences as were charged, was an unwarranted complication. The context and circumstances of each count were amply demonstrated by the existence of so many other counts, to all of which Davy pleaded guilty.
This Appeal
Davy sought leave to appeal his sentence from a single judge of this Court. On that application, the Crown conceded arguable error in the sentencing judge’s decision in respect of three proposed grounds of appeal — namely, that there was an insufficient gap between the non‑parole period and the total effective sentence; that the sentencing judge failed to give sufficient weight to Davy’s plea of guilty; and that the sentencing discretion miscarried as a result of the sentencing judge’s misinterpretation of defence submissions as to the sentencing range. On the basis of those concessions, Ashley JA granted Davy leave to appeal.
Davy’s appeal was argued on five grounds: an insufficient gap between the non‑parole period and the head sentence, insufficient discount for his plea of guilty, an error by the sentencing judge as to his counsel’s submissions as to the appropriate sentencing range, manifest excess and a failure by the sentencing judge to have sufficient regard to the principle of totality. It is convenient to deal with these grounds other than in the order in which they are set out in the appellant’s full statement of grounds dated 20 November 2009.
Ground 2 — Inadequate gap between head sentence and non‑parole period
The sentencing judge imposed a total effective sentence of 16½ years’ imprisonment and fixed a non‑parole period of 14 years. The possible parole period thus fixed is, on any view, short and therefore unusual when regard is had to the total effective sentence. As this Court (Hayne JA, Crockett and Southwell AJJA) pointed out in Krasnov,[10] this in itself would not be a sufficient basis for intervention if the sentencing judge had provided reasons for fixing that non-parole period. However no reason appears in her Honour’s sentencing remarks in this case for having done so. Thus her order invites scrutiny. On this appeal, the Crown properly conceded as much.
[10](1995) 82 A Crim R 92.
In his submission in support of this ground, counsel for the appellant referred to the sentencing judge’s remarks as to his client’s prospects of rehabilitation. But a non‑parole period is not only, or even mainly, about rehabilitation: Power v The Queen.[11] It is the minimum period before which, in the sentencing judge’s estimation, it would be in violation of justice according to law for the prisoner to be released: Bugmy v The Queen;[12] R v VZ;[13] R v Merritt.[14]
[11](1974) 131 CLR 623.
[12](1990) 169 CLR 525, 531 (Mason CJ and McHugh J) citing Power v The Queen (1974) 131 CLR 623, 536 (Dawson, Toohey and Gaudron JJ).
[13](1998) 7 VR 693, 700 (Batt JA).
[14](2008) 191 A Crim R 272, [14], [24] (Vincent, Nettle and Kellam JJA).
The total effective sentence in this case is very long. Even if it were not excessive, a non‑parole period which leaves only 2½ years possible parole after a 14 year minimum sentence is inadequate in this case. In conceding that the non-parole period invited scrutiny, the Crown submitted that the only explanation which could support the period fixed by the primary judge was her Honour’s finding that the appellant lacked insight and was at a high risk of re‑offending. But such a finding depended not only on a total rejection of the only psychological opinion before the Court (which the judge did totally reject) but also upon conjecture as to what might be the appellant’s state of mind and his view of child sexual abuse after a lengthy gaol sentence with such treatment directed towards his rehabilitation as he might receive. Her Honour’s conclusion as to this matter ignored his previous record, his acceptance of his guilt at an early stage of this proceeding and his profession of remorse (even if only through his counsel). This ground should be upheld.
Ground 3 — Plea of guilty
It was common ground before the sentencing judge that Davy had pleaded guilty to these offences at the earliest opportunity. Her Honour acknowledged this in her sentencing remarks and described the plea of guilty as a significant ‘mitigating factor’. She referred to Davy having provided ‘limited’ assistance to the police and to the fact that the plea of guilty removed the necessity for his victims to give evidence at a trial.
The sentencing judge, however, did not mention remorse. Davy’s counsel had argued that by accepting responsibility for his offending Davy had demonstrated remorse. Her Honour did not address this submission directly in her sentencing remarks. Davy did not give evidence on his plea and accordingly the only basis for his counsel’s submission was an assertion of remorse, his plea of guilty and the concession by the Crown that he had provided assistance to the police in their investigation, albeit limited. It may be inferred that her Honour did not regard Davy’s plea of guilty as being indicative of remorse. In summarising the effect of the plea, she appears to have confined it to an acceptance of responsibility and a willingness to facilitate the course of justice.
Her Honour’s conclusion on this issue appears to have been influenced by her interpretation of the police interviews in which Davy participated in April 2008, shortly after his offending was discovered. She drew a conclusion that Davy was attempting to deflect blame for his offending on to his victims. Even if that was so when he was questioned, when he was charged and the opportunity to plead to those charges became available he pleaded guilty to all of the charges which the police laid — some 56 in number. When he was ultimately arraigned in the County Court on the presentment on which he was sentenced he again pleaded guilty to all counts and consented to most of those counts being representative of other uncharged acts. Without this cooperation, such counts could not have been laid.
Section 5(2)(e) of the Sentencing Act 1991 requires a court sentencing an offender to have regard to whether he pleaded guilty and the stage in the proceedings at which he did so. In R v Duncan,[15] Callaway JA summarised, in a series of propositions, the effect of a guilty plea for sentencing purposes. His Honour made it clear in those propositions that the sentencing discount must be applied both to the head sentence and to the non-parole period. Even where it does not of itself evidence repentance or foreshadow amendment of life a large reduction may be made for purely utilitarian reasons dictated by the public interest. An early plea that does nothing except save time and expense should usually attract a significant discount and, having regard to rising sentences generally, the discount for pleading guilty should be more rather than less. As Hunt CJ at CL pointed out in Winchester, ‘[e]ncouragement will be given to early pleas of guilty only if they lead (and are seen to lead) to a substantial reduction in the sentence imposed’.[16]
[15][1998] 3 VR 208.
[16](1992) 58 A Crim R 345, 350.
Assuming that it was appropriate for the sentencing judge in this case not to give Davy any credit for remorse, a sentence of 16½ years after a proper reduction for a plea of guilty on purely utilitarian grounds would indicate a head sentence after a trial of the order of 21½ years. Had remorse been a relevant factor, the upper limit would have to have been even higher. In this regard, the s 6AAA statement which her Honour made as to the sentence she would have imposed had Davy not pleaded guilty (19½ years’ imprisonment with a non-parole period of 16 years), when compared to the sentence she did impose, represents a discount of only around 15% of the head sentence and 12.5% of the non‑parole period. Such discounts would have been seriously inadequate and would have gravely undervalued a plea of guilty on any basis.
The practical benefit of a plea of guilty and the consequent sentence discount, particularly in a child sex abuse case, should not be undervalued. Not only is the trauma of a trial on a 19-count presentment avoided for the victims, but the recognition by the justice system of a real discount for such a guilty plea has an encouraging effect on those subsequently charged with such offences.
This ground of appeal should be upheld.
Ground 4 — Totality
As counsel for Davy recognised in his submissions, the sentencing judge had a large number of counts upon which to sentence Davy which, as already noted, presented her with considerable difficulty, particularly with respect to the question of totality.
The prosecutor’s submission to the sentencing judge was that Davy’s total effective sentence should be in the range of 15 to 17 years’ imprisonment with a non-parole period of 12 to 15 years. Although she conceded that the principles of proportionality and totality were relevant, she made no reasoned submission as to how these principles should be given effect with such a large number of counts, and argued for significant cumulation. That she had a duty to assist the Court from falling into appealable error was restated in plain terms by five judges of this Court as recently as 2008: R v MacNeil-Brown.[17] Her discharge of that duty was, in the circumstances, less than adequate.
[17](2008) 20 VR 677.
Section 5(2)(b) of the Sentencing Act 1991 requires a court in sentencing to have regard to current sentencing practices. In Director of Public Prosecutions (Vic) v DDJ,[18] a different constitution of this Court (Maxwell P, Vincent and Neave JJA) was concerned with a Crown appeal against sentences of five years’ and two years’ imprisonment respectively on one count of maintaining a sexual relationship with a child under 16[19] and one count of producing child pornography.[20] A total effective sentence of five years and eight months’ imprisonment had been fixed. The Court upheld the appeal and re-sentenced the offender to seven years’ and three years’ imprisonment respectively on the two counts with a total effective sentence of eight years’ imprisonment — a sentence fixed having regard to the principle of double jeopardy as applicable to a Crown appeal. The offender, who had a prior conviction for indecent assault, had engaged in almost continuous sexual abuse, in various forms, of a 14-year-old girl over a five-month period and made a pornographic video of her containing humiliating and degrading images.
[18](2009) 22 VR 444 (‘DDJ’).
[19]Crimes Act 1958 s 47A.
[20]Crimes Act 1958 s 68.
In the course of that appeal, the Court reviewed a number of judicial decisions concerning the sentencing of offenders for the crime created by s 47A of the Crimes Act 1958. The Court concluded that a sentencing range in that case for this offence of 9 to 12 years’ imprisonment as contended for by the DPP could not be justified on the basis of current sentencing practices. Their Honours determined that current sentences for the offence were clustered around a midpoint of five years’ imprisonment although there were some considerably higher sentences — 10 years’ imprisonment on two occasions and 12 years’ imprisonment on another. As it had not been asked to do so by the DPP, the Court did not hold in that case that current sentencing practices for the offence were inadequate, although it did not preclude such a conclusion being reached in an appropriate case.
The Court in DDJ also considered the sentence imposed on the offender on the count of producing child pornography. The DPP had submitted that the appropriate range in respect of this count was four to five years’ imprisonment. The Court referred to Director of Public Prosecutions (Vic) v OJA,[21] which was concerned with sentences of imprisonment imposed on three offenders for a range of inter‑related sexual offences, in each case including numerous counts of incest and of indecent acts with children under 16 and counts of producing child pornography. In OJA, the Court did not interfere with sentences of two years’ imprisonment imposed in respect of each of the counts of producing child pornography. The Court in DDJ also referred to another child pornography sentence of four years’ imprisonment where the conduct had occurred over a five-year period. In each of these cases, the sentencing court had also been concerned, as in this case, with a large number of counts of physical sexual abuse of children.
[21](2007) 172 A Crim R 181 (‘OJA’).
In Director of Public Prosecutions (Vic) v CPD,[22] yet another constitution of this Court (Maxwell P, Redlich JA and Robson AJA) upheld a Crown appeal in respect of counts of sexual penetration against two very young girls – aged six and three. CPD had pleaded guilty to a representative count and a discrete count of sexual penetration in respect of each girl. The total effective sentence imposed on CPD by the sentencing judge was two years and six months’ imprisonment with a non‑parole period of one year and three months. The Court considered that sentence to be manifestly inadequate and re‑sentenced CPD to a total effective sentence of six years’ imprisonment with a minimum term of four years. This sentence took into account the principle of double jeopardy as it applied to a Crown appeal and current sentencing practices.
[22](2009) 22 VR 533.
In reaching its conclusion as to CPD’s sentence, the Court discussed the question of ‘current sentencing practices’ at some length. It considered that the identification of current sentencing practices usually required a court to have regard both to relevant sentencing statistics and decisions in comparable cases although it also repeated the standard warning as to the recognised limitations of such statistics. The Court concluded that current sentencing practices did not preclude, in the exercise of a proper sentencing discretion, the imposition of a sentence higher than those currently imposed for similar offences.
In the case now before this Court, there was no adequate discussion by either counsel before the sentencing judge of current sentencing practices for offences such as those her Honour was considering. The transcript of the plea hearing, however, does indicate that defence counsel referred her Honour to the High Court decision in Mill v R[23] and some material published by the Judicial College of Victoria. He also referred to the case of R v JF.[24] No argument based on any of that material was put, however. Nor did the sentencing judge refer to any of this material in her sentencing remarks. Thus, the sentencing judge embarked upon the difficult exercise of trying to fix an appropriate total effective sentence and a non‑parole period in respect of a 19-count presentment without proper assistance from either counsel — assistance to which she was entitled.
[23](1988) 166 CLR 59. See also DPP (Vic) v Grabovac [1998] 1 VR 664.
[24][2008] VSCA 243.
The High Court in Mill v R expressed the principle of totality as follows:
The totality principle is a recognized principle of sentencing formulated to assist a court when sentencing an offender for a number of offences. It is described succinctly in Thomas, Principles of Sentencing, 2nd ed. (1979), pp. 56-57, as follows (omitting references):
The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is ‘just and appropriate’. The principle has been stated many times in various forms: ‘when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong[‘]; ‘when ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences’.[25]
[25](1988) 166 CLR 59, 62–3.
In cases such as this, affected by the provisions of part 2A of the Sentencing Act 1991, the principle of totality as described in Mill must be qualified. The statutory presumption of cumulation of sentences for serious offenders prescribed by s 6E of the Act leads to a conclusion that, although the principle of totality is not totally abrogated by that provision — a discretion remains to direct other than total cumulation — it must be applied giving recognition to the statutory presumption. As McHugh, Gummow and Hayne JJ said in R H McL v R,[26] ‘sentencing judges need to be astute not to undermine the legislative policy inherent in s 16(3A) by applying the totality principle to the sentences as if that section (or section 6E which replaced it) was not on the statute book’.
[26](2000) 203 CLR 452, 476.
This case has some significant and important aggravating factors. The fact that there were two young victims who were particularly vulnerable, that the abuse continued for a number of years (particularly in the case of X), that much of it occurred in circumstances giving rise to serious statutory aggravation and that many of the acts themselves were particularly heinous and were often the subject of photographic recording are all relevant matters. The most significant mitigating factors were Davy’s lack of prior convictions, his early plea of guilty and the fact that he assisted the police with their investigations. Taking all these matters into account, as well as the statutory presumption in s 6E of the Sentencing Act 1991 and current sentencing practices as discussed in the cases referred to, the appropriate range for a total effective sentence in Davy’s case was between about 9 years’ and about 12 years’ imprisonment. His non‑parole period should have been between about 6 years and 9 years.
No question as to the adequacy of the sentences passed in respect of individual counts arises in this case. The appellant does not contend that any individual sentence is excessive. His complaint is that the sentencing judge failed to apply properly the principle of totality and imposed an excessive total effective sentence. Had her Honour considered current sentencing practices for offences of this type and undertaken the exercise described by the High Court in Mill v R, she would have concluded that the total effective sentence of 16½ years’ imprisonment and the non-parole period of 14 years both offended against that principle and were accordingly too severe. That she did not was a sentencing error. This ground has been made out and should be upheld.
Ground 5 — Misapprehension of defence argument as to range
Ground 5 of the appellant’s grounds of appeal was that the sentencing judge’s sentencing discretion had miscarried as a result of her misinterpretation of the submissions of counsel for the appellant as to the appropriate sentencing range available for these offences.
In her sentencing remarks, her Honour referred to the Crown’s submission as to the range within which Davy’s total effective sentence should fall and the range for his non-parole period. She then said that defence counsel had submitted that Davy’s sentence ‘should fall within the lower end of the applicable range’.
Having regard to the total effective sentence and non-parole period which the sentencing judge eventually fixed, it is reasonable to infer that she accepted the prosecutor’s submission — both the total effective sentence and the non‑parole period were towards the top of the ranges put to her by the prosecutor. It follows that her Honour must have considered the prosecutor’s range to have been appropriate notwithstanding that it was merely an assertion unsupported by argument or appropriate authority.
In this Court, Davy’s counsel argued that by her statement as to defence counsel’s submission as to range the sentencing judge had shown that she failed to apprehend the true defence position. This was that the whole sentencing range argued for by the prosecutor was too high in this case. It should have been significantly lower. It was not counsel’s submission that Davy should be sentenced at the bottom of the range contended for by the prosecutor.
A close reading of the relevant transcript suggests that there is force in this argument. Defence counsel may well have been arguing as it is now submitted. On the other hand, parts of his submission as to sentence are less than clear. His position was not made any clearer by his unexplained and unhelpful reluctance to put an alternative sentencing range in years to that contended for by the prosecutor. If her Honour misapprehended the range for which defence counsel was arguing, that misapprehension may have been significantly contributed to by defence counsel himself.
Having regard to the fact that a number of other grounds argued on this appeal should be upheld and that, accordingly, Davy should be re-sentenced, there is no need for this ground to be considered further. It is sufficient to note that if the defence submission on this ground is correct as to the judge’s error, that could, of itself, explain why the total effective sentence imposed on Davy was too high.
Ground 1 — Manifest excess
This ground need not be considered. The sentence imposed on Davy must be set aside on the grounds already discussed for specific error.
Re-Sentencing
Consequent upon grounds 2, 3 and 4 of his appeal having been upheld, Davy must be re‑sentenced. In carrying out that exercise, it is necessary to have regard to current sentencing practices at the time he pleaded guilty, as the Court did in Director of Public Prosecutions (Vic) v CPD.[27] It must be assumed that he pleaded guilty in the legitimate expectation that he would be sentenced having regard to those practices.
[27](2009) 22 VR 533, 549.
Consistent with the method explained by Ormiston JA in Director of Public Prosecutions (Vic)vGrabovac,[28] appropriate orders for cumulation should be made to give appropriately modified effect to the totality principle in this case, leaving the sentences imposed by the sentencing judge on each individual count intact. In accordance with the provisions of s 6E of the Sentencing Act 1991, because of the very large number of counts to be accommodated, it is appropriate to direct that those sentences not be served wholly cumulatively upon each other but rather that they be subject to specific orders for cumulation and be otherwise concurrent. Whilst in framing those orders it would have been possible to distinguish between counts according to a scale of gravity, such an exercise has an air of unreality about it when 19 counts have to be accommodated. It is more appropriate to cumulate the same period (four months) in respect of each of the 15 counts of direct sexual abuse (counts 3 to 11 and 13 to 18), on the sentence imposed in respect of count two,
namely five years’ imprisonment, and also to cumulate one year of the sentence imposed in respect of count 12, the production of child pornography count, on the sentence imposed in respect of count two. The sentences on counts one and 19 should be totally concurrent with that on count two. The different treatment given to counts 12 and 19 is justified by the different nature of those counts from those of direct sexual abuse and their similarity to each other, and count one is subject to a presumption of concurrency. Thus, a total effective sentence of 11 years’ imprisonment is arrived at. A non‑parole period of 8 years should be fixed.
[28][1998] 1 VR 664.
It should be stated pursuant to s 6AAA of the Sentencing Act 1991 that if the appellant had not pleaded guilty as he did but had stood trial and been convicted on all counts, he should have received a total effective sentence of 15 years’ imprisonment with a non-parole period of 11 years.
HARPER JA:
I agree with Bongiorno JA.
HANSEN JA:
I also agree with Bongiorno JA.
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