Day (a pseudonym) v The Queen
[2022] VSCA 73
•21 April 2022
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2021 0190
| SHANE GILBERT DAY (a pseudonym)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]To ensure that there is no possibility of identification of the victim of sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the applicant’s name.
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| JUDGES: | KYROU JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | Determined on the papers |
| DATE OF JUDGMENT: | 21 April 2022 |
| MEDIUM NEUTRAL CITATION: | [2022] VSCA 73 |
| JUDGMENT APPEALED FROM: | [2021] VCC 1999 (Judge Tinney) |
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CRIMINAL LAW – Appeal – Sentence – Two charges of indecent assault, one charge of gross indecency with a person under 16 – Offences occurred in late 1980s – Total effective sentence 3 years, 5 months’ imprisonment, non-parole period 2 years – Whether judge erred in not taking into account applicant’s apology to complainant in pretext call as demonstrating remorse – Whether sentence manifestly excessive – Leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| No appearances |
KYROU JA:
Introduction and summary
On 6 October 2021, a County Court jury found the applicant guilty of the charges set out in the table below and, on 6 December 2021, a County Court judge sentenced him in accordance with that table:[2]
[2]DPP v Day (a pseudonym) [2021] VCC 1999 (‘Sentencing remarks’).
Charge Offence Maximum Sentence Cumulation 4 Indecent assault (Crimes Act 1958 s 44(1)) 5 years 2 years, 9 months Base 5 Gross indecency with a person under 16 (Crimes Act s 50(1)) 2 years 1 year, 4 months 5 months 6 Indecent assault 5 years 2 years, 9 months 3 months Total effective sentence 3 years, 5 months’ imprisonment Non-parole period 2 years Other relevant orders Sentenced as a serious sexual offender for charge 6; sex offender registration for 15 years
The offences involved the same complainant, the applicant’s stepdaughter. The jury found the applicant not guilty of three additional charges of indecent assault (charges 1 to 3), which also concerned the same complainant.
The applicant now seeks leave to appeal on the following grounds:[3]
[3]In these reasons, proposed grounds of appeal are referred to as grounds of appeal.
1 In all the circumstances, the sentence on each count imposed was:
(a) manifestly excessive, and
(b)… productive of a total effective sentence and non-parole period that is manifestly excessive.
2The applicant was entitled to have his apology to the complainant, and acknowledgement of responsibility taken into account in his favour.
For the reasons that follow, the application for leave to appeal will be refused.
Circumstances of the offending
The complainant’s parents separated in approximately 1982, when she was about 5 years of age. She had two brothers. Shortly afterwards, the applicant commenced a relationship with the complainant’s mother. The applicant and the complainant’s mother married in 1983, had two children together (Terri and Felix),[4] and separated in approximately 1986. They divorced in 1994.
[4]Terri and Felix are pseudonyms.
The complainant was, to the applicant’s knowledge, extremely shy and introverted and suffered from selective mutism. The applicant believed that she had been sexually abused by her biological father.
One evening in approximately 1987, when the complainant was around 10 years of age, the applicant attended her mother’s home unannounced. He was affected by alcohol. The complainant’s mother was absent at a function. The complainant and one of her brothers had set up two tents in the backyard and were planning to sleep there. They tried to persuade the applicant to leave, but he refused. They then tossed a coin to determine who would sleep in one of the tents with the applicant. The result was that the complainant shared one of the tents with the applicant.
During the night, while the applicant was in the tent with the complainant, he tried to kiss her on her face, but she pulled away. He pulled aside her underpants and, after rubbing her vagina, he inserted his finger into her vagina (charge 4, indecent assault).[5] He asked her to tickle him, and she did so on his ribs. He removed his clothes and instructed her to ‘do it like this’, demonstrating by handling his penis. He told her to kiss his penis and she did so by putting her lips on his penis (charge 5, gross indecency with a person under 16). The applicant then inserted his finger into the complainant’s vagina for a second time (charge 6, indecent assault).
[5]At that time, digital penetration was not treated as an act of sexual penetration by way of a specific crime: Sentencing remarks [50].
In Year 7, the complainant told a school friend that the applicant had sexually abused her. She also said some things by way of complaint to her mother, but the timing of that complaint is unclear. There was an attendance at a police station which, according to the judge, ‘seemingly went nowhere’.[6]
[6]Sentencing remarks [11].
The complainant made a statement to police in 2019, when she was 42 years of age. On 19 September 2019, she had a pretext call with the applicant. In the course of that call:
(a)The applicant said that he remembered being ‘pissed’, that the complainant and one of the other children tossed a coin to determine who would sleep with him, and that, in the morning, she said ‘Dad you hurt me’. He said that, beyond that, he did not remember what happened.
(b)The applicant said that he remembered that, on the following day, he told the complainant not to tell anyone.
(c)The applicant said that he talked to the complainant’s mother, and she said ‘it wasn’t that dramatic, it wasn’t that bad’.
(d)The applicant told the complainant that he ‘wouldn’t abuse’ her and that it was not in him ‘to do that’. He also told her that: he was sorry for what had happened; he was sorry ‘with how things worked out’; he blamed himself ‘for the whole incidents — the whole scenario’; he accepted ‘all the responsibility’ and ‘all the fuckin’ guilt’; and he had made an ‘error’ because he was not ‘man enough to stand up’ earlier.
Terri had a pretext call with the applicant on 27 January 2020. In the course of that call, the applicant stated the following:
(a)He was ‘drunk’ and did not have any idea what happened other than that: he woke up lying on top of the complainant; she said ‘Dad, you’re hurting me’; and he ‘was in as much shock as anything’.
(b)‘[T]his is just an incident that happened’ and ‘[i]t would never happen again’.
(c)He ‘wouldn’t have done anything like that on purpose, that’s for sure’.
(d)He ‘fucked up bad’, ‘did the wrong thing’ and ‘should have fuckin’ brought it out in the open and it wouldn’t have been any fuckin’ problems’.
(e)He ‘thinks[s] of it often and [he] get[s] the guilts’.
(f)He admits to himself that ‘what [he] did was wrong as in not bringing it out in the open’.
(g)He had spoken to the complainant and had apologised to her.
During the pretext call with Terri, the applicant also apologised to her.
The applicant was arrested and interviewed in February 2020. In the record of interview, he gave the same account as in the pretext calls and stated that he had not had any recent contact with either the complainant or Terri. When the complainant’s account of the tent incident was put to him, he said it was not true. He said that he informed the complainant’s mother a few weeks after the tent incident of his account of what had happened and she said words to the effect: ‘It wasn’t that bad’. The applicant also stated that he was aware that the complainant ‘had trouble’ with her biological father and said ‘I wouldn’t do any of that’.
Evidence at trial
In cross examination of the complainant, defence counsel suggested to her that her account of what had occurred in the tent was incorrect and that her allegations against the applicant were motivated by a desire to obtain financial compensation.
The applicant gave evidence in his defence. He denied the complainant’s account of sexual offending and gave evidence consistent with what he had said during the pretext calls and his interview with police. He said that he had been sexually aroused when he woke up on top of the complainant in the tent.
The complainant’s mother gave evidence denying that the applicant had told her about an incident in the tent.
The applicant’s personal circumstances
The applicant was aged approximately 32 at the time of the offending and was 66 at the time of sentencing.
The applicant was educated to Year 11 and has had regular employment — including in roofing, construction and cleaning — since he left school.
Apart from his relationship with the complainant’s mother, the applicant has had a relationship with another woman whose daughter gave character evidence on his behalf. The applicant has been dating another woman for close to two years, and she provided a written character reference.
The applicant’s criminal history was limited to a conviction for resisting arrest in 1980, for which he was fined $30.
Plea hearing
At the plea hearing, the complainant read out a victim impact statement. She stated that she cannot trust people and had trouble speaking to others because of anxiety and fear. She said that the applicant had stolen her childhood and that she had used drugs in an endeavour to escape the mental turmoil. She described sleeping in jeans and shoes for many years to make it harder for someone to violate her. She said that, when she was pregnant, she was concerned about how she might protect a daughter if she had one. She said that she was relieved when she had a son, but was over-protective of him.
Defence counsel tendered a report dated 9 November 2021 by a psychologist, Jeffrey Cummins. Mr Cummins concluded that the applicant had a chronic problem with alcohol and that the offending ‘was most probably situationally motivated and most probably reflective of the state of his alcohol disinhibition’. Mr Cummins opined that the applicant was not suffering from any major mental illness at the time of the offending. He assessed the risk of the applicant reoffending as low.
In his written submissions, defence counsel contended that the Court should be satisfied that the offences had been hanging over the applicant’s head for something approaching 30 years. Counsel also contended that the applicant had demonstrated remorse in respect of his offending behaviour to the extent that he had offered an apology to the complainant during the pretext call. In oral submissions, counsel stated that, although the applicant denied the offending, he admitted that an event involving wrongdoing on his part had taken place and expressed remorse in relation to it. Counsel also relied upon character references from the applicant’s current partner, a former employer and the daughter of a former partner. The daughter of the former partner also gave oral evidence at the trial.
Judge’s sentencing remarks
The judge found that, on the day following the offending, the applicant, the complainant and others visited a farm owned by the applicant’s parents. The judge found that the applicant asked the complainant to come outside and told her not to tell anyone about what had happened because he would go to gaol and Terri and Felix would be left without a father in the same way that she had not had one. The judge also found that, a year or two after the offending, on the complainant’s birthday, the applicant reminded her not to tell anyone. The judge stated:
I observe that [the applicant] had sufficient memory the morning after these events to know what [he] had done and how serious it was criminally. It was [him] counselling [the complainant] not to tell about what had occurred or [he] would go to gaol. I note in the interview that [he] said that [he was] aware at the time of the tent incident that she had been sexually abused previously. I note also in [his] evidence that [he] said [he] had told [his] ex‑wife about the incident, or [his] account of it, and received the response from the girl’s mother: ‘well that’s not too bad.’ She rejected that proposition. [The applicant] also gave that evidence at [his] own trial. That exchange never occurred. I am satisfied of that beyond reasonable doubt.[7]
[7]Sentencing remarks [17] (emphasis in original).
The judge found that the applicant’s offending was ‘at the serious end of conduct captured by these now obsolete [offences]’.[8] He stated that ‘[a]cts such as these ones, in the setting of a family relationship, surely must fall at the higher end’.[9] He said that, whilst the offending was not premeditated or planned, he did not accept that it was ‘situational’ offending brought about by alcohol.[10] He said that it ‘was serious sexual offending and it has had sizeable impact’.[11]
[8]Sentencing remarks [50].
[9]Sentencing remarks [51].
[10]Sentencing remarks [45].
[11]Sentencing remarks [51].
The judge found that the applicant did not exhibit actual remorse for his offending. As the issue of remorse is central to the outcome of ground 2, I will set out the judge’s observations on this issue in full:
[Defence counsel] points to [the applicant’s] attitude in the pretext calls and the interview and suggests [he is] remorseful for these crimes. I am not satisfied on the balance of probabilities that [he exhibits] actual remorse for these crimes. [He has] denied [his] guilt absolutely and [he] still [does]. [He] challenged the happening of these very acts and, through [his] counsel, suggested a motivation for lying. [He] entered the witness box and swore that these things did not occur. [Defence counsel] was relying on what [the applicant] said in the interview and the pretext calls, including an apology, as evidencing remorse. No doubt, had [the applicant] gone on and admitted [his] guilt and pleaded guilty there would be a very strong foundation indeed to find remorse. That is not what happened. The apologies in the pretext call with [the complainant] were to a very different act and are overtaken by [the applicant’s] stance taken at trial.
It is possible that in the pretext calls [the applicant was] adopting a defensive and conciliatory tone, in the hope that the matter would not be reported. The prosecutor argued that [the applicant was] apologising and making limited admissions as a means of ‘managing’ the [complainant’s] complaint and minimising [the applicant’s] own conduct. I am not satisfied of that to the required degree. [The applicant was] perhaps hoping the matter would go no further. I cannot know for sure why [he] said what [he] said in the pretext call. However, I am satisfied beyond reasonable doubt it has always been [his] hope that the matter would not surface. There is reference in the character reference letters … to remorse, but they are very problematic. Who knows what [the applicant] told [his current partner] about ‘the incident in the tent.’
[The applicant] could not have admitted any wrongdoing as [he] really still [does] not. Likewise, what could [he] have told [his former employer] about the incident? I do not accept his opinion that [the applicant is] remorseful and upset about ‘the incident’. I do not doubt he thinks that by the way, but he does not know what I know about the actual incident, what [the applicant has] admitted, what [he has] disputed and what actually took place and how this trial has been conducted.
[The daughter of the applicant’s former partner] was approached only a few months ago. [The applicant] confided in her, as to what, is really anyone’s guess, but she says [he was] upset and emotional with what was being said about [him] and [was] in shock and could not believe the allegations. There are also multiple references in Mr Cummins’ report touching upon the absence of remorse … [The applicant] saw him on 4 November. If [the applicant was] remorseful, that would be a matter in mitigation. I want to make it clear; the absence of remorse is not a matter in aggravation. It is possible, I suppose, that deep down [the applicant] may have some actual regret for the acts which [he knows] did take place in that tent and that the apology in the pretext call drew from that feeling of regret. I am not satisfied of that though on the balance of probabilities.
When I examine all the materials, including the pretext calls and the interview, the matters put to the complainant denying any of these acts and raising reasons for her to have lied and [the applicant’s] evidence at trial with a complete denial of these acts occurring, a stance which [he persists] in with [his] discussions with Mr Cummins, I am just not satisfied on the balance of probabilities on the materials before me that there is any actual remorse on display here.[12]
[12]Sentencing remarks [35]–[39] (emphasis in original).
The judge found that, having regard to the passage of time and the absence of any other offending, the applicant had ‘very good prospects of rehabilitation’.[13] However, the judge did not accept the submission by defence counsel that the matters were hanging over the applicant’s head for close to 30 years and that this was a matter in mitigation. The judge said the following:
I am not satisfied that [the applicant] felt any great burden from having these matters unreported and unresolved. [He] wanted them never to see the light of day. [He] discouraged [the complainant] from speaking out and when she did closer to the date, [he] played a straight bat and tried to minimise [his] conduct. [He] then chose to walk away from [his] past and start a new life. That was [his] right. On [his] own version, [he] would say that there was an accidental rolling onto a girl. Full stop. But of course, that is not what happened but that is the narrative [he has] maintained.
Yes, of course, there is a disadvantage for [the applicant] in being dealt with at this time of [his] life, so long after these events and I do not ignore that. I have already spoken of the absence of any subsequent offending and the benefits of the ongoing rehabilitation in [his] life in the lengthy period that has since elapsed. There is also though the reality that [the complainant], who would have taken some real solace from acknowledgement and counselling when she was a child, has waited almost half a lifetime to be vindicated. It was after all [the applicant] in the pretext call who said to her that she should have brought the incident out into the open at the time and how wrong it was that [he] did not. It is a shame that it was not brought out into the open all those years ago for [the applicant], but also for [the complainant].[14]
[13]Sentencing remarks [46].
[14]Sentencing remarks [47]–[48].
The judge assessed the risk of the applicant reoffending as low.
The judge emphasised the need for general deterrence. He said that specific deterrence and protection of the community were not very significant, save that protection of the community from the applicant was the principal sentencing purpose for charge 6 because he was being sentenced as a serious sexual offender.[15]
[15]See Sentencing Act 1991 s 6D.
The judge took into account the increased burden upon the applicant posed by COVID-19 restrictions.
The judge stated that he took into account the principle of totality, particularly having regard to the fact that the three offences were part of a single episode.
Ground 2
It is convenient to consider ground 2 prior to ground 1.
The applicant accepted that, in the pretext calls, he did not admit the actual offences for which he was found guilty. However, he submitted that, in those calls, he acknowledged that he was responsible for wrongdoing. He contended that the judge’s failure to find that he had felt any great burden from having the matters unreported and unresolved was inconsistent with the evidence contained in the pretext calls. He argued that his position can be readily contrasted with that of an offender who denies any wrongdoing and denies all responsibility. According to the applicant, he ‘was entitled to be sentenced on the basis that his recollection of the events was wrong, but not dishonest, and that he was remorseful in a global sense’.
The Crown submitted that the judge did not err in rejecting defence counsel’s submissions with regard to remorse. It contended that, on the basis of the judge having had the benefit of hearing the pretext calls, watching the record of interview and observing the applicant, the complainant and the complainant’s mother give evidence, it was open to the judge to find that the applicant had not displayed any actual remorse.
In my opinion, ground 2 is not reasonably arguable.
I accept that, during the pretext calls, the applicant apologised and stated that he accepted responsibility. However, he was not apologising or accepting responsibility for his offending, because at all times he denied that he committed the offences for which he was charged. Rather, he was apologising and accepting responsibility for something entirely different, namely, a non-specific asexual tent incident. His evidence about this alleged incident was not accepted by the jury.
In the context of sentencing, remorse involves an offender: accepting that the criminal conduct for which he or she is being sentenced took place; evidencing genuine penitence and contrition for committing that conduct and causing harm to the victims of the offending; and evidencing a desire to atone.[16] The applicant at no time accepted that he had committed the criminal conduct for which he was charged and, whilst he expressed some regret and a desire to atone, it was not for that criminal conduct.
[16]Barbaro v The Queen (2012) 226 A Crim R 354, 365 [38]–[39]; [2012] VSCA 288; Mohtadi v The Queen [2018] VSCA 238, [26].
I reject the applicant’s submission that, whilst his recollection of events was wrong, it was not dishonest. I agree with the judge that the fact that the applicant warned the complainant not to tell anyone of what had happened — on the day following the offending and a year or two later — indicates that he was aware that his conduct was of a serious criminal nature.
In my opinion, the findings of the judge set out at [26] above were open to him on all the evidence. It follows that I am not satisfied that it is reasonably arguable that the judge erred in the manner contended by the applicant. Accordingly, leave to appeal will be refused in relation to ground 2.
Ground 1
The applicant submitted that, when regard is had to the following matters, the sentence imposed by the judge on each of the charges was manifestly excessive:
(a)He did not have any prior history of any relevance at the time of the offending.
(b)Although there were three offences, he should have been sentenced on the basis that there was a single episode of offending.
(c)Notwithstanding that the offending the subject of charge 5 was of short duration and unplanned, the sentence imposed for that charge was two thirds of the maximum sentence.
(d)He had very good prospects of rehabilitation, having rehabilitated himself in the 30 years or so since the offending.
(e)The sentence was imposed during the COVID-19 pandemic.
(f)He ‘was aware that these matters have been disclosed something in the order of 30 years ago, and he has had the responsibility for his actions, in general terms, hanging over his head for that time’.
The Crown submitted that an assessment of manifest excess solely by reference to the maximum penalty in the present case is flawed because the low maximum penalties necessarily gave rise to a degree of compression in the range of available sentences.
In relation to delay, the Crown contended that this was to some extent attributable to the applicant — because of his caution to the complainant not to tell anyone what had happened — and provided the applicant with the benefit of having extended time in the community to demonstrate his rehabilitation. The Crown argued that it was open to the judge to reject the defence submission that the allegations ‘hanging over [the applicant’s] head’ for almost 30 years was a relevant matter in mitigation.
The Crown relied upon the following matters in support of its contention that the sentences were not manifestly excessive:
(a)The offences were serious examples of their kind. Digital penetration is at the upper end of the wide range of conduct, including penetrative and non‑penetrative conduct, that could constitute indecent assault. The conduct the subject of the gross indecency charge was of a similar nature.
(b)There was a significant age disparity between the applicant and the complainant.
(c)In the light of the relationship between the applicant and the complainant, the offending constituted a gross breach of trust.
(d)The complainant was, to the applicant’s knowledge, vulnerable.
(e)The impact of the offending upon the complainant has been profound.
(f)The applicant fell to be sentenced as a serious sexual offender for charge 6.
(g)As the applicant was found guilty after a trial, he was not entitled to any discount for a guilty plea.
(h)The orders for cumulation and the non-parole period were modest.
In my opinion, ground 1 is not reasonably arguable and therefore leave to appeal should be refused in relation to it.
I agree with the judge’s assessment of the seriousness of the applicant’s offending. All three offences were very grave.
Having regard to the various ways in which the now obsolete offence of indecent assault could be committed — including penetrative as well as non‑penetrative conduct — the applicant’s digital penetration of the complainant’s vagina was at the upper end of the spectrum of seriousness for that offence. The act of procuring the complainant to kiss the applicant’s penis was also a very serious example of the offence of gross indecency with a person under 16. In reaching these conclusions, I have not overlooked the fact that the offending was unplanned and occurred in a single incident.
At the time the offences were committed, the applicant was the complainant’s stepfather. He was then the only adult present with the two children in the backyard of the home of the complainant’s mother. In these circumstances, he had a responsibility to keep the complainant safe while she was in the tent with him. This was particularly so having regard to her age and the fact that, to his knowledge, she was vulnerable. Instead of keeping her safe, in total disregard of his parental responsibilities, he took advantage of the situation by sexually abusing her. He committed a serious breach of trust which has had a profound and long term impact upon her. His moral culpability was high.
I accept that the applicant had significant mitigating factors in his favour, including the absence of relevant prior offending and his very good prospects of rehabilitation, as found by the judge. I also accept that specific deterrence was not a significant sentencing consideration. However, as discussed under ground 2, the applicant was not remorseful. And, having pleaded not guilty, he was not entitled to the moderation in sentence that would have resulted from guilty pleas. Further, general deterrence was an important sentencing consideration and so was protection of the community in relation to charge 6.
The fact that the sentences imposed by the judge represented a high proportion of the applicable maximum penalty does not indicate that the sentences are manifestly excessive. That is because, as submitted by the Crown, the low maximum penalties that were applicable at the time of the offending gave rise to a degree of compression in the range of available sentences. In any event, having regard to the gravity of the offending, the applicant’s high moral culpability and the absence of remorse and guilty pleas, the sentences imposed by the judge cannot be described as falling wholly outside the range of sentences available to the judge.
The orders for cumulation made by the judge are unremarkable. Although all three offences were committed as part of a single incident, they represent separate criminal conduct which warranted a meaningful measure of cumulation. The non‑parole period was appropriate in all the circumstances.
Conclusion
For the above reasons, the application for leave to appeal will be refused.
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