Director of Public Prosecutions v Nwigwe
[2022] VSCA 14
•18 February 2022
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2021 0098
| DIRECTOR OF PUBLIC PROSECUTIONS | Appellant |
| v | |
| OBIYO NWIGWE | Respondent |
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| JUDGES: | T FORREST, EMERTON and WALKER JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 8 February 2022 |
| DATE OF JUDGMENT: | 18 February 2022 |
| MEDIUM NEUTRAL CITATION: | [2022] VSCA 14 |
| JUDGMENT APPEALED FROM: | [2021] VCC 920 (Judge D Sexton) |
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CRIMINAL LAW – Appeal – Sentence – Crown appeal – Three charges of sexual penetration of child under 16 – Where offender a doctor at local hospital recently arrived in community – Victim 13-year-old daughter of neighbouring family – Victim’s family reposed trust in offender due to his position and Christian beliefs – Early plea of guilty – Offender suffered racism and isolation – Sentence of 6 years and 6 months’ imprisonment, non-parole period of 4 years and 3 months – Where individual sentences significantly below standard sentence – Whether sentences manifestly inadequate – Whether sentences matched objective gravity of offending – Mitigating factors present – Proper weight given to all sentencing considerations – Sentence not wholly outside range of sentencing options reasonably open – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr C Boyce QC with Mr M R Wilson | Ms A Hogan, Solicitor for Public Prosecutions |
| For the Respondent | Mr C Mandy SC with Mr J M Lowy | Melasecca, Kelly & Zayler |
T FORREST JA
EMERTON JA
WALKER JA:
The respondent pleaded guilty in the County Court of Victoria to four charges of sexual penetration of a child under 16[1] and one charge of using a carriage service to transmit indecent communication to a person under 16 years of age.[2] He was sentenced on 8 July 2021 as follows:
[1]Contrary to s 49B(1) of the Crimes Act 1958.
[2]Contrary to s 474.27A(1) of the Criminal Code Act 1995 (Cth).
| Charge on indictment L11066171 | Offence | Maximum Penalty | Sentence | Cumulation |
| 1 | Sexual penetration of a child under 16 (contrary to s 49B(1) of the Crimes Act 1958 as amended by the Crimes Amendment (Sexual Offences) Act 2016) | 15 years’ imprisonment | 2 years’ imprisonment | 8 months |
| 2 | Use of carriage service to transmit indecent communication to person under 16 years of age (contrary to s 474.27A(1) of the Criminal Code Act 1995 (Cth)) | 7 years’ imprisonment | 6 months’ imprisonment | Nil |
| 3 | Sexual penetration of a child under 16 (contrary to s 49B(1) of the Crimes Act 1958 as amended by the Crimes Amendment (Sexual Offences) Act 2016) | 15 years’ imprisonment | 2 years, 3 months’ imprisonment | 10 months |
| 4 | Sexual penetration of a child under 16 (contrary to s 49B(1) of the Crimes Act 1958 as amended by the Crimes Amendment (Sexual Offences) Act 2016) [Rolled-up charge, 4 incidents] | 15 years’ imprisonment | 3 years, 9 months’ imprisonment | Base sentence |
| 5 | Sexual penetration of a child under 16 (contrary to s 49B(1) of the Crimes Act 1958 as amended by the Crimes Amendment (Sexual Offences) Act 2016) [Rolled-up charge, 3 incidents] | 15 years’ imprisonment | 3 years, 9 months’ imprisonment | 1 year, 3 months |
| Total Effective Sentence: | 6 years, 6 months’ imprisonment | |||
| Non-Parole Period: | 4 years, 3 months’ imprisonment | |||
| Pre-sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991: | 9 days | |||
| 6AAA Statement: | 8 years, 6 months’ imprisonment with a non-parole period of 6 years’ imprisonment | |||
| Other relevant orders | Forfeiture order pursuant to s 33(1) of the Confiscations Act 1997 Lifetime reporting pursuant to s 34 of the Sex Offenders Registration Act 2004 | |||
The Director of Public Prosecutions (‘Director’) now appeals this sentence on the single ground that the individual sentences imposed on charges 1, 3, 4 and 5, the orders for cumulation, the total effective sentence, and the non-parole period are manifestly inadequate.
For the reasons that follow, the appeal must be dismissed. It was open to the sentencing judge to impose the individual sentences on charges 1, 3, 4 and 5, the orders for cumulation, the total effective sentence, and the non-parole period. His Honour’s sentencing remarks were clear and cogent and his exercise of the sentencing discretion contained no error of principle.
Circumstances of offending
The relevant facts are set out in detail in the judge’s reasons for sentence[3] and in the Director’s written case.
[3]DPP v Nwigwe [2021] VCC 920 (‘Reasons’).
Background
At the time of the offending, the respondent was a 43-year-old medical practitioner and surgeon who was married with three young children.
The complainant was a member of a neighbouring family and was aged 13 at the time of the offending.
The respondent was born and raised in Nigeria, but lived and worked for many years as a doctor in the United Kingdom. In 2017, the respondent migrated to Australia on a skilled migrant visa. In November 2019, he began working as an emergency doctor at the Bendigo Hospital. At that time, his wife and children were still living in the United Kingdom but were expected to move to Australia when a suitable house had been purchased.
In December 2019, the respondent mentioned to a nurse at Bendigo Hospital that he had just purchased a property in Ballarat. The nurse told the respondent that her brother-in-law lived in the same street in Ballarat with his wife and two daughters. The complainant was the younger of the two. Shortly afterwards, in early December 2019, the respondent went to the complainant’s home and introduced himself to the family. He learned that the complainant was 13 years old and the older daughter was 14.
On 4 February 2020, the respondent’s wife and three young children arrived from the United Kingdom.
In the short period before the offending, the relationship between the respondent’s family and the complainant’s family developed into a close friendship. In mid-February 2020, the respondent’s wife was required to return to the United Kingdom to complete her medical studies and was expected to be away for some time. The complainant’s family went out of their way to assist the respondent to settle into his new home and to cope with his children while his wife was away. They carried out school runs, put his bins out, mowed his lawn, fixed his shed door, helped him with his broken TV and dishwasher, and tried to fix his toilet when it became blocked. When the respondent’s nanny was no longer able to look after the respondent’s children, the complainant’s father and eldest daughter looked after them until the respondent was able to find someone else to fill that role. The children of both families would often play together.
Charge 1
On 4 March 2020, the respondent was at home with his own children, the complainant, the complainant’s sister and a teenage nanny who assisted the complainant’s family. The respondent was in the kitchen with the complainant and the nanny, assisting his children with their homework. The respondent asked the complainant to come to his bedroom. Once inside the bedroom with the door closed, the respondent approached the complainant, placed his hands on her hips and pulled her towards him. He kissed the complainant and moved his hands to her buttocks and squeezed. He whispered to the complainant: ‘I love you.’[4] After approximately two minutes of kissing, the respondent took the complainant to the walk-in robe and pulled out his penis. He placed both hands on the complainant’s shoulders and pushed her to the ground. He then inserted his penis into the complainant’s mouth. He pushed his penis in and out until he ejaculated into the complainant’s mouth. The complainant spat the ejaculate into the adjoining bathroom sink.
[4]The initial contact, including the kissing, were uncharged acts, led as context to the charged act that followed.
Charge 2
A few days later (between 5 and 31 March 2020), the respondent sent a naked picture of himself to the complainant on his mobile phone. The picture showed the respondent’s naked body, including his face and penis. The complainant sent back a picture of herself wearing tracksuit pants and a bra.
The complainant later told police that the respondent sent her naked images of himself on other occasions.
Charge 3
On 9 March 2020, the complainant and her sister went to the respondent’s home, as he had organised an outing with his children to the venue ‘Bounce’. When the complainant arrived, she told the respondent she did not want to go as she was suffering menstrual cramps. The respondent took the complainant’s hand and directed her to his bedroom. He kissed the complainant, pulled up the complainant’s top, and sucked her breast.[5]
[5]The kissing and sucking of the breast were uncharged acts, led as context to the charged act that followed.
The complainant then got down on her knees and the respondent put his penis into the complainant’s mouth. He withdrew his penis, masturbated and then ejaculated into the complainant’s mouth.
Charge 4 (rolled-up)
On 14 March 2020, the complainant went to the respondent’s home, as he had organised an outing to the Ballarat Go-Kart Centre. The complainant arrived two hours earlier than the pre-booked session. She was sitting with the respondent’s children watching a movie when the respondent called out for her. He grabbed the complainant by the hand near the stairs, walked her into the bedroom, and shut the door. He then removed all of the complainant’s clothing except her bra. He directed the complainant to the bed and then inserted his penis into her vagina. He engaged in sexual intercourse with the complainant for approximately 5–10 minutes. He did not wear a condom. They then both got dressed and left the bedroom at separate times (Incident 1).
The complainant returned to sit on the couch with the respondent’s children. About 45 minutes later, the respondent called the complainant’s name and again took her into his bedroom. He kissed the complainant.[6] The respondent inserted his tongue into the complainant’s vagina (Incident 2). The respondent then inserted his penis into the complainant’s vagina. This act lasted for about five minutes (Incident 3). The respondent and the complainant then changed positions and the respondent again inserted his penis into the complainant’s vagina. He ejaculated onto the complainant’s stomach (Incident 4). Afterwards, the respondent massaged the complainant’s arms, back and bottom with oil while she was naked. This episode lasted approximately 20 minutes.[7]
[6]Uncharged act led as context.
[7]Uncharged act led as context.
A short time later, the respondent drove his children and the complainant to Ballarat Go-Karts. After the outing, the respondent drove home with his children and the complainant.
Charge 5 (rolled-up)
On 19 March 2020, at approximately 7:50 am, the complainant’s father attended the respondent’s home and drove the respondent’s children and the complainant’s sister to school. At approximately 8:00 am, the complainant went to the respondent’s home and asked if her father was there. The respondent and the complainant went into the lounge room and kissed for approximately two minutes before the respondent escorted her to the bedroom.[8]
[8]Uncharged act led as context.
The respondent laid the complainant on her back on the bed and removed her shoes and underwear. He then inserted his penis into the complainant’s vagina (Incident 1). After a period of time, the respondent and the complainant changed positions. The respondent inserted his penis into the complainant’s vagina (Incident 2). After a period of time, the respondent and the complainant again changed positions. The respondent again inserted his penis into the complainant’s vagina (Incident 3). The respondent did not wear a condom.
While the respondent and complainant were engaging in sexual intercourse, the complainant’s father called the respondent on his mobile phone. The complainant ran back to her home where she was confronted by her mother, who asked where she had been. The complainant said she had gone for a walk. The complainant’s father attended the respondent’s home a short time later and spoke to the respondent, who denied that he had seen the complainant.
Complaint
A few days after the offending on 14 March 2020 (Charge 4), the complainant told a school friend that she had had sexual intercourse with the respondent.
A few weeks after the offending on 19 March 2020 (Charge 5), the complainant contacted the respondent, telling him that she felt ‘guilty’ about the relationship and that she needed to tell someone about it. The respondent told her that he would commit suicide, would lose his family and that his parents would hate him if she did that.
On 29 April 2020, the complainant disclosed the offending to her mother and then to her father. The offending was reported to police that day.
Between 16 February and 30 April 2020, a total of 929 phone and text messages were exchanged between the respondent and the complainant.
On 30 April 2020, the complainant participated in a pretext call with the respondent. She asked him why he had stopped contacting her. She enquired whether it was because the sexual intercourse was not good and he replied, ‘No. You’re amazing but you’ve always been amazing.’ He also said, ‘If we were [in] another life, if you were above 18 and I was single, then that would be perfect because I think you are an amazing person.’ When asked if he had meant it when he told her that he loved her, he replied, ‘I did.’
On 3 May 2020, the respondent was interviewed by police, and stated that the allegations were ‘all lies’ and that they were part of an intentional act to defame him.
On 27 May 2020, the respondent had a telephone conversation with a church pastor, in which he admitted to engaging in sexual relations with the complainant.
Guilty plea
On 28 June 2021, following a series of procedural hearings and adjournments, the respondent entered a plea of guilty in the County Court.
Personal circumstances
The personal circumstances of the respondent were described by the sentencing judge.[9]
[9]See Reasons, [28]–[35].
The respondent was born in Nigeria into a highly respected and high-achieving family. His father is the medical director of a local hospital, is a general surgeon and has a master’s degree in tropical medicine. His mother is a professor of aquatic biology. He is the eldest of four children, and each of his three siblings is similarly high achieving. The respondent described his upbringing as strict but loving, and deeply religious. As he grew up, he was placed under extreme pressure relating to his conduct and he was perpetually on show, with any deviation from normal behaviour bringing deep shame to his family due to their position in society.
Although the respondent enjoyed a childhood of considerable wealth and advantage, he reported being sexually abused by a female teacher at the age of 10.
The respondent’s primary and secondary education was in Nigeria. He was a very good student. He attended boarding school from the age of 11 and completed his tertiary studies in medicine in Nigeria before undertaking internships in Nigeria and then the United Kingdom.
The respondent met his wife in Nigeria when he was 22. She is also a doctor. Together they have three children. While his wife has initiated divorce proceedings, she remains supportive of the respondent and wants him to be a part of the children’s lives.
The respondent became a specialist in emergency medicine in 2016 while in the United Kingdom, and worked at a number of hospitals there before being offered positions in Australia in 2017. He worked in Sydney and then, from 2019, in Bendigo and Ballarat.
The respondent reported encountering entrenched racism in Australia and said that he suffered significant loneliness as a result of being separated from his family for a long period while they remained in the United Kingdom. According to the respondent, the racism was particularly bad in regional areas of Victoria, where patients and colleagues would often refer to him in derogatory terms. In November 2019, the respondent was called to treat an abusive patient with a suspected fractured jaw. The respondent believes that the patient subsequently obtained his direct contact number from hospital records and made threats to kill him. He began experiencing the symptoms of Post-Traumatic Stress Disorder (‘PTSD’). Within four weeks of this incident, he experienced a home burglary which caused his mental state to deteriorate further.
At the plea hearing, the respondent tendered reports as to his mental state prepared by Dr Lester Walton, psychiatrist, and Luke Armstrong, psychologist.
According to Dr Walton, the respondent qualified for a diagnosis of Major Depressive Disorder and PTSD, caused by the death threats at the respondent’s place of work, and he was additionally vulnerable because his wife was absent overseas:
Dr Nwigwe’s seemingly extreme emotional turmoil during the period of the offending has lead [sic] to compromised exercising of appropriate judgement and in that sense his psychiatric condition has made a contribution to the offending which arises as markedly out of character behaviour.
According to Mr Armstrong, it is likely that the respondent’s mental state deteriorated within the context of emergent and undiagnosed PTSD and other culminative factors which included a long-distance relationship and feelings of isolation and alienation at work:
By the time Mr Nwigwe befriended the victim’s family he had in my opinion deteriorated to a surreal, isolated and regressive state of mind. Within this context, Mr Nwigwe lost perspective.
The respondent also tendered at the plea a treatment report prepared by his forensic counsellor, Geoffrey Burrows, dated 23 May 2021. Mr Burrows outlined the respondent’s progress as a voluntary participant in the Sex Offender Treatment Program (‘SOTP’), which he had entered into after his arrest. Mr Burrows concluded as follows:
In summary, Mr Nwigwe has made some good progress in the SOTP. He has developed clear insight into his offending behaviour and the destructive impact such behaviour can cause. He has improved his social skills and coping skills and begun implementing relapse prevention strategies. Nevertheless, Mr Nwigwe would benefit from further intervention to consolidate this progress in the long term and further reduce his risk of reoffending. He also requires ongoing intervention to manage his negative emotions effectively. He has expressed his desire to continue treatment and I can confirm that I am willing to continue treating him if he is at liberty to attend.
Victim impact
Victim impact statements were completed by the complainant and her parents and tendered on the plea. They evidence the extreme distress suffered by the complainant and her parents. The complainant suffers serious and distressing long-term effects from the offending and her parents feel guilty about what they perceive to be their failure to protect her.
The complainant’s father believed the respondent to be a ‘good Christian man’ and ‘an honest, trustworthy doctor’. In truth, the respondent was ‘a wolf in sheep’s clothing’. Similarly, the complainant’s mother spoke of the trust her family had placed in the respondent, and how in return for their kindness the respondent had devastated and ruined their family, taking away their life as they knew it.
Reasons
After recounting the circumstances of the offending, the sentencing judge addressed the victim impact statements, noting that the impacts of the respondent’s offending on the complainant had been catastrophic, and touched ‘virtually every aspect of her life’. He also recorded the significant impact the offending had on her parents.[10]
[10]Reasons, [18].
The judge then considered the nature and gravity of the offending. He regarded the respondent’s offending to be ‘extremely serious’. In particular, the respondent was a doctor at the time of his offending, and the community expected ‘the highest standards of behaviour with respect to medical practitioners, a profession focused on the care of others and protection from harm’. The complainant’s parents had trusted the respondent around their children because of his profession, and this trust had been betrayed ‘spectacularly’.[11]
[11]Reasons, [20].
The factors identified by the sentencing judge as bearing upon the seriousness of the offending were the vulnerability of the complainant, the significant age disparity and power imbalance between the respondent and complainant, and the fact that the offending sometimes took place in close proximity to other young children, including the respondent’s own young children.[12] Further, while the sentencing judge accepted that the respondent’s offending was limited to a 15-day period and that he had stopped offending of his own volition before being reported to police, it was an ‘extremely intense time period of offending, with multiple and escalating episodes of sexual penetration … amidst almost 1,000 phone and text messages‘. Furthermore, the respondent’s efforts to dissuade the complainant from reporting the incidents ― including by threatening suicide ― were viewed by the judge as ‘shameful and selfish conduct … clearly motivated to avoid detection’.[13]
[12]Ibid.
[13]Ibid.
Addressing the charges specifically, the judge found that the gravity of the respondent’s conduct with respect to charges 1 and 3 (sexual penetration by inserting his penis into the complaint’s mouth) was accentuated by the fact that on both occasions he ejaculated into the complainant’s mouth.[14] With respect to charges 4 and 5 (the instances of sexual penetration by the respondent inserting his penis into the complaint’s vagina), the judge highlighted the respondent’s failure to wear a condom, which he viewed as ‘accentuating the degree to which [the respondent] showed no care for the welfare of his young victim’.[15] Charge 4 was particularly serious given that that offending occurred when the respondent’s own children were home.[16]
[14]Reasons, [23].
[15]Reasons, [25].
[16]Reasons, [24].
Ultimately, the sentencing judge found the objective seriousness of these charges, particularly charges 4 and 5, to sit below, but to approach, a mid-range example of such offending.[17] By contrast, the respondent’s conduct of sending a naked image of himself to the complainant (the substance of charge 2), though highly concerning, was found to be at the lower end of the offence–gravity–spectrum.[18]
[17]Reasons, [26].
[18]Reasons, [21].
The sentencing judge then turned to consider the respondent’s culpability and degree of responsibility. He considered the respondent’s upbringing, describing him as ‘essentially a member of an aristocratic family’ in Nigeria and made reference to the circumstances described at [31] above and to Mr Armstrong’s view that the respondent’s upbringing had likely led to a degree of sexual repression.[19]
[19]Reasons, [28].
His Honour also recorded that while working in Australia, the respondent had reported significant loneliness as a result of being separated from his wife, and had described experiencing racism, which included the death threats by the former patient. Soon after this incident, the respondent began to experience a deterioration in his mental state, and it was in this context that he met the complainant.[20]
[20]Reasons, [31]–[32].
The sentencing judge accepted that the respondent was suffering from PTSD and depression at the time of his offending. However, while these conditions contextualised the respondent’s offending, the judge was not persuaded that they warranted any reduction in his moral culpability and he considered that there was insufficient evidentiary basis for there to be any application of the Verdins principles in this regard.[21] Despite the respondent’s background and mental state, his moral responsibility for the offending was found to be ‘significant’.[22]
[21]Reasons, [35]. See R v Verdins (2007) 16 VR 269, 276 [32] (Maxwell P, Buchanan and Vincent JJA); [2007] VSCA 102.
[22]Reasons, [35].
The sentencing judge addressed mitigating factors as follows:
(a) The respondent’s early plea of guilty. The plea was reflective of acknowledgment of wrongdoing, was a facilitation of the administration of justice and had utilitarian value. In particular, the utilitarian value was significant because it meant that neither the victim nor other witnesses would have to give evidence. Further, the value of that early plea was heightened by the ongoing COVID-19 pandemic environment.[23]
[23]Reasons, [37].
(b) The respondent’s remorse. Though the respondent had not initially admitted to his wrongdoing in the police interview, his Honour accepted the respondent was genuinely remorseful. This was apparent from his later admissions to the pastor,[24] his expedited guilty plea, the expert evidence of Dr Walton, Mr Armstrong and Mr Burrows, and the array of ‘impressive’ character references tendered at the plea. According to the judge, this boded well for the respondent’s prospects of rehabilitation and decreased the need for any penalty imposed to reflect the sentencing purposes of specific deterrence and community protection.[25]
(c) Extra–curial punishment. The judge recognised that the respondent’s offending had cost him his career as a doctor, his marriage, and likely much of the substantial trust and respect of his community and family. His employment prospects were substantially diminished, and he had likely suffered substantial reputational loss and humiliation.[26]
(d) The hardship of prison for the respondent. The judge was satisfied that the respondent would find prison particularly arduous due to his PTSD and depression, and that he was entitled to a mitigatory allowance in accordance with Verdins principle 5. His Honour also referred to the lack of support the respondent would receive from his family due to their relocation overseas, the likelihood of his deportation upon release, and the difficulties for prisoners posed by the ongoing COVID-19 pandemic.[27]
[24]In the sentencing Reasons and the Director’s written case before this Court, reference was made to the respondent having confessed to his pastor on 27 April 2020 — some six days before his interview with police on 3 May 2020. However, the Director subsequently advised that the confession in fact took place on 27 May 2020 — 24 days after the record of interview. Nothing was made of this error by the parties. In our opinion, it is immaterial. Notwithstanding its timing, the confession shows unqualified remorse.
[25]Reasons, [38].
[26]Reasons, [43].
[27]Reasons, [44].
The sentencing judge referred to the fact that the offence underpinning charges 1, 3, 4 and 5 — sexual penetration of a child under 16 — was a standard sentencing offence, with a standard sentence of 6 years’ imprisonment. Consistently with the principles set out in Brown v The Queen,[28] the judge indicated that he had taken the standard sentence into consideration as a guidepost, akin to the maximum penalty, as one factor in his sentencing exercise.[29] The judge also referred to the fact that the respondent fell to be sentenced as a ‘serious sexual offender’ on charges 4 and 5, which required him to ‘regard the protection of the community from the offender as the principal purpose for which the sentence is imposed’. There was also the statutory presumption of cumulation pursuant to s6E of the Sentencing Act 1991.[30]
[28](2019) 59 VR 462; [2019] VSCA 286.
[29]Reasons, [39].
[30]Reasons, [48].
The sentencing judge addressed the sentencing considerations of general deterrence, specific deterrence and prospects of rehabilitation as follows:
(e) General deterrence remained a prominent sentencing purpose. Contrary to his counsel’s submissions, the respondent’s PTSD and depression did not, in the judge’s view, moderate its applicability.[31]
(f) Specific deterrence had less relevance in light of the respondent’s prior criminal history, his good behaviour and his level of remorse.[32]
(g) With respect to rehabilitation, weight was given to the evidence of Mr Burrows as to respondent’s progress in the SOTP and to Mr Armstrong’s opinion that the respondent presented a ‘moderate to low risk of reoffending’. Ultimately, the respondent’s prospects of rehabilitation were held to be good, provided he obtained the necessary specialist interventions recommended by Mr Burrows.[33]
[31]Reasons, [45].
[32]Reasons, [46].
[33]Reasons, [47].
At the plea hearing, the prosecutor gave the sentencing judge a table of the 19 sentences previously imposed under the standard sentencing scheme for the offence of sexual penetration of a child under 16 (‘table of comparable cases’). The table of comparable cases listed the cases from the one attracting the most severe penalty to the case attracting the least severe penalty. The judge stated in his Reasons that he had carefully considered each of these cases as part of his sentencing exercise.[34]
[34]Reasons, [40].
Ultimately, his Honour recognised that the sentences he intended to impose were lower than the standard sentence for the offence of sexual penetration of a child under 16, but confirmed that he considered it to be appropriate to impose a lesser sentence in the circumstances of the case.[35]
[35]Reasons, [41].
Submissions on appeal
The Director submits that the individual sentences on charges 1, 3, 4 and 5 could not be said reasonably to correlate with, or meet, the objective seriousness of the respondent’s offending. It was submitted that each of the individual sentences stands wholly outside any range of penalties that were reasonably open to be imposed in the circumstances of this case. This then infects the total effective sentence and is not cured by the orders for cumulation, which have produced a total effective sentence that also stands wholly below any reasonable range. As a consequence, it is submitted, the non-parole period must also be set aside.
Unsurprisingly, the Director’s submissions focussed on the circumstances of the offending, described as very serious and particularly opportunistic and brazen. She emphasised that the respondent was a highly educated person in a respected profession who was in a position of trust for the complainant and her parents. As a newly arrived doctor, the respondent had been befriended by the complainant’s family. They took him under their wing at a time when he was experiencing difficulty settling into his local community and was ‘lonely, depressed [and] seeking comfort’.[36] He abused their kindness and trust.
[36]Reasons, [35].
The Director submits that the respondent used the complainant as a means to gratify himself sexually during his wife’s absence. General deterrence was a prominent sentencing purpose, together with just punishment and denunciation.
The Director also points to the seriousness of the respondent’s post-offending conduct, which included threatening the complainant with his own suicide and, when questioned by the police following the complaint, telling the police that the complainant’s allegations were ‘all lies’ and ‘part of an intentional act to defame him’.
The Director submits that it is plain from the victim impact statements that the respondent’s offending has devastated the complainant as well as her mother and father. Some 15 days of opportunistic sexual offending by the respondent has left the family deeply wounded and possibly permanently scarred. The complainant’s parents were left to excoriate themselves at their perceived inability to protect their daughter and to reflect upon how horribly in error they were in extending to the respondent their generosity and assistance.
Furthermore, the Director submits, the respondent fell to be sentenced as a ‘serious sexual offender’ on charges 4 and 5, which required the judge to ‘regard the protection of the community from the offender as the principal purpose for which the sentence is imposed’ and enlivened the statutory presumption of cumulation.[37] Moreover, charges 4 and 5 were ‘rolled up’ charges that encompassed four and three incidents of offending respectively. In addition, the standard sentencing provisions applied to all of the charges the subject of the appeal, the standard sentence for the offending being 6 years’ imprisonment.
[37]Pursuant to ss 6A and 6E of the Sentencing Act 1991.
According to the Director, having regard to these matters, sentences of 3 years and 9 months’ imprisonment on charge 4 (base sentence), and 3 years and 6 months’ imprisonment on charge 5 are manifestly inadequate.
The Director submits that even having regard to the mitigatory matters, the objective seriousness of this offending in its context of the breach of trust is just so high that the individual penalties, having regard to the maximum and the standard sentences, are wholly outside the range.
As for the table of comparable cases handed up by the prosecutor, in oral submissions the Director cautioned against using so-called ‘comparable cases’ as capping and collaring the sentences that were open to the sentencing judge. The Director submitted that Director of Public Prosecutions v Dalgliesh (a pseudonym)[38] reminds the Court that sentencing must be fact-specific and that some limited assistance can be gained from consideration of comparable cases. Additionally, the Director pointed to two decisions[39] that involved substantially heavier sentences for the offence, one of which, Conos, was decided by this Court after the plea hearing in the present matter and does not appear on the table of comparable cases.[40] The Director submitted that Conos demonstrated that Amaral was not an outlier. However, she went on to say that she did not rely on Conos, or on any of the cases, due to the difficulty of comparing total effective sentences.
[38](2017) 262 CLR 428; [2017] HCA 41 (‘Dalgliesh’).
[39]Namely, DPP v Amaral [2020] VSCA 290 (‘Amaral’) and DPP v Conos [2021] VSCA 367 (‘Conos’).
[40]The offender in Amaral was sentenced to 8 years and 10 months’ imprisonment with a non–parole period of 5 years and 8 months, which was increased by this Court to 10 years and 6 months with a non–parole period of 7 years and 6 months. The offender in Conos was sentenced to 6 years and 6 months’ imprisonment with a non-parole period of 4 years and 6 months. This sentence was increased by this Court to 10 years with a non-parole period of 7 years.
For his part, the respondent submits that the sentences were well within range in the circumstances of this case. The sentencing judge recognised the gravity of the offending in compelling terms and the Director does not suggest that the sentencing judge failed to express the gravity of the offending and the weight to be attached to that gravity. However, even if the sentences could be considered lenient and as displaying a ‘modicum of mercy’, the matters in mitigation were important factors to which the sentencing judge was entitled to give considerable weight in the exercise of his instinctive synthesis. The respondent points out that the matters favourable to the respondent in the overall synthesis were consigned by the Director to a footnote in her submissions and submits that they were far more important than the Director was prepared to acknowledge.
According to the respondent, the relevant matters in mitigation included his early plea of guilty, which reflected an acknowledgement of his wrongdoing, facilitated the administration of justice and had utilitarian value, which was particularly significant given the sensitive nature of the charges. The value of the early plea was heightened in the current COVID–19 environment, which had placed extraordinary pressure on the criminal justice system. The judge correctly concluded that an increased, significant sentencing discount was warranted in these circumstances.
Beyond his plea of guilty and its timing, the respondent points to the finding that he was remorseful and that an additional sentencing discount was warranted as a result. Dr Walton reported that the respondent did not seek to proffer any excuse for his misconduct and that he presented as ‘straightforwardly remorseful’. Likewise, Mr Armstrong found the respondent to present with genuine remorse for his offending, both towards his victim and her family, and that he made no attempt to minimise or justify his offending. The sentencing judge considered that the genuine remorse boded well for the respondent’s prospects for rehabilitation and decreased the need for any penalty imposed to reflect the sentencing purposes of specific deterrence and community protection.
The respondent also points to the loss of his career and reputation as ‘not insignificant circumstances’. The respondent’s convictions have, in effect, ruined his life and all that he worked to achieve. He has lost his profession, his marriage and his children will be strangers to him when they can eventually see him again, likely not until after the expiration of his head sentence, given that he stands to be deported. According to the respondent, the sentencing judge also correctly assessed the hardship that he would suffer in prison and gave it some mitigatory allowance. The hardship flowed from his distance from his family and the absence of emotional supports in prison, as well as the respondent’s poor mental health.
Finally, the respondent points out that the sentencing judge was impressed by the character evidence at the plea hearing and took into account that he was a first-time offender.
According to the respondent, once the matters in mitigation are appreciated, it cannot be said that the sentences imposed are ‘wholly outside of the range’. The law reposes in sentencing judges a substantial discretion, which is of vital importance to the administration of justice, and the sentencing judge exercised that discretion thoughtfully and reasonably in the circumstances of this case.
Turning to the table of comparable cases, the respondent submits that, if the sentence imposed on the respondent by the sentencing judge were included in the table, it would be the third highest total effective sentence, with only Director of Public Prosecutions v Garratt[41] (roughly equal[42]) and Amaral carrying higher total effective sentences. The respondent submits that, in those circumstances, it is difficult to see how an argument can be made that the sentences imposed on the respondent were ‘wholly outside’ of the applicable range. The prosecutor did not submit on the plea that the sentences to be imposed on the respondent should fall outside the range of the sentences on the table, or even that they should fall at the very top of that range.
[41][2020] VCC 1721.
[42]Total effective sentence of 6 years, 9 months’ imprisonment, non–parole period of 4 years, 3 months.
The respondent submits that the prosecutor on the plea did not argue that the gravity of the offending in Amaral was similar to that of the respondent, and such a submission could not have been sustained in any event. The two matters that the prosecutor said that he found of some assistance were cases 4 and 5, the cases of Director of Public Prosecutions v Rohan[43] and Director of Public Prosecutions v Trask.[44] In Rohan, the sentences appeared to be relatively low, but the total effective sentence was quite significant. In Trask, there was a single act which attracted a very significant sentence. In both cases the total effective sentence was 5 years’ imprisonment with a non-parole period of 3 years.
[43][2020] VCC 814 (‘Rohan’).
[44][2020] VCC 831 (‘Trask’).
The respondent describes Amaral as an ‘outlier’. The offending lasted for over two years, involved a grave breach of trust (in that the offender was the victim’s uncle), and resulted in a pregnancy, which was a highly aggravating factor substantially compounding the gravity of the offending. There was no finding of genuine remorse. In any event, the respondent submits, in a sentence appeal alleging manifest inadequacy, it is no part of the task for this Court, or the respondent, to ‘reconcile’ individual sentences imposed in a single case with those imposed on the respondent, especially where that case involves the highest sentence imposed for the offence. One case does not make, or mark, a sentencing range. Indeed, it might be said that it is equally difficult to reconcile the respondent’s sentences with those imposed at first instance (and upheld on appeal) in Director of Public Prosecutions v Spottiswood.[45]
[45][2021] VSCA 146 (‘Spottiswood’). In Spottiswood the offender pleaded guilty to (amongst other things) three charges of sexual penetration of a child under 16. He received a total effective sentence of 4 years’ imprisonment, with a non-parole period of 2 years.
Analysis
This Court has frequently observed that the ground of manifest inadequacy is difficult to establish. In Director of Public Prosecutions v Karazisis,[46] the Court said:
In Victoria, the contention that a sentence was manifestly inadequate is invariably expressed as a submission that the sentence was outside the range reasonably open to the sentencing judge in the circumstances. As with the ground of manifest excess, the ground of manifest inadequacy is a stringent one, difficult to make good. Error of this kind will not be established unless the appellate court is persuaded that the sentence was ‘wholly outside the range of sentencing options available’ to the sentencing judge. Put another way, it must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he/she did if proper weight had been given to all the relevant circumstances of the offending and of the offender.
The court will be astute to enforce the stringency of this test. As the High Court has emphasised:
The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice.[47]
[46](2010) 31 VR 634, 662–3 [127]–[128] (Ashley, Redlich and Weinberg JJA); [2010] VSCA 350.
[47]Quoting Lowndes v The Queen (1999) 195 CLR 665, 672 (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ); [1999] HCA 29.
There is no doubt, and there was no argument to the contrary, that the respondent’s conduct was reprehensible and repellent. The respondent has done lasting damage to a child who trusted him and to a family that was particularly kind and generous to him. His conduct was exploitative and supremely selfish. He breached in the most appalling way the trust of the people who were trying the hardest to help him settle into the community and to make him feel welcome.
Such conduct calls for stern denunciation and punishment.
In addition, as the Director emphasised, the sentencing judge had to have regard to the statutory guideposts provided by the maximum sentence of 15 years and the standard sentence of 6 years when imposing sentences for the individual charges. Two years’ imprisonment, for example, on charge 1 is obviously considerably lower than the standard sentence, as is 3 years and 9 months on each of charges 4 and 5, given the escalation in the offending.
However, the sentencing judge was required to include in his sentencing synthesis other important factors, and it is not enough for the Director to simply assert that the sentences passed do not reflect the gravity of the offending. In this case, there were important factors in mitigation, including the respondent’s early plea, his expression of genuine remorse, his good prospects of rehabilitation and the special hardship he experiences in prison in light of his isolation in Australia and radical separation (by distance, timezones and corrections policy) from his children and other family members. Additionally, although of somewhat less weight, he has lost the career and reputation he spent decades building.
A sentence must inevitably balance competing considerations, sentencing being the quintessential exercise of a judge’s discretion. Reasonable minds might differ about the weight to be accorded to the different considerations and the balance to be struck between them. In this case, there may not be much scope for dispute as to the weight to be attached to the moral culpability involved in this offending. However, reasonable minds, and reasonable judges, may differ on the weight to be accorded to other factors in play in this case, such as the offender’s isolation in prison and the collateral punishment represented by the loss of career and reputation.
In the Reasons, and in the discussion that flowed between the bench and the bar table on the plea, his Honour was careful and considered. He asked probing questions on the plea concerning the respondent’s moral culpability that demonstrated his understanding of its importance to his sentencing discretion. He showed himself to be aware of the long-term harm visited on young victims of sexual offending, and the importance that the community places on protecting them from such harm. Prosecuting counsel fulfilled his duties of fairness and balance in the same way, making appropriate and considered concessions about the plea of guilty, the deprivations that the respondent faces in prison and other mitigating matters, and the judge was entitled to take those concessions and those matters into account.
The sentencing judge made clear in the Reasons the factors he considered to be mitigating and the weight that he considered that they attracted. He articulated those matters clearly, and he plainly and clearly acknowledged their relevance. The Director does not complain of any error in this regard.
In relation to the comparable cases, the Director accepted that, consistently with Dalgliesh, current sentencing practices, as reflected in comparable cases, have some — albeit limited — relevance to an assessment of the range of sentences open to a sentencing judge.[48] The Director made no submission that the sentences in the table of comparable cases revealed a range that did not reflect the gravity of the offending;[49] rather, the gravamen of her submission, as we understood it, was that the cases were not truly comparable. We accept that the cases to which our attention was drawn are of limited assistance; but we consider that they are of some assistance, with the caveat that the factual circumstances of the offending and the offender differ significantly between the various cases. In our opinion, the cases support our conclusion that the sentence imposed by the trial judge was within the range open to him.
[48]See Dalgliesh (2017) 262 CLR 428, 445 [52] (Kiefel CJ, Bell and Keane JJ); [2017] HCA 41. See also R v Pham (2015) 256 CLR 550, 560 [29] (French CJ, Keane and Nettle JJ); [2015] HCA 39 and Hili v The Queen (2010) 242 CLR 520, 537 [54] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); [2010] HCA 45.
[49]Dalgliesh (2017) 262 CLR 428, 445 [51], 445–6 [53], 448–9 [63] (Kiefel CJ, Bell and Keane JJ); [2017] HCA 41. We note that the High Court held in Dalgliesh that this Court erred when it adopted a ‘bifurcated approach to the Director’s appeal’, by resolving the individual case by reference to the current (but erroneous) sentencing practices, but then to correct, for the future, the unjustifiably low level of sentences for offending of the relevant kind: Dalgliesh (2017) 262 CLR 428, 449 [64] (Kiefel CJ, Bell and Keane JJ); [2017] HCA 41. However, we do not understand the High Court’s decision to preclude the Director from contending in a particular case that current sentencing practices, as revealed by comparable cases, are erroneous, and that a greater sentence than might be suggested by those cases ought to be imposed on an offender.
The sentencing judge has imposed sentences that could be considered to be lenient. However, we are not persuaded that the sentences under challenge reflect any failure by the sentencing judge to give proper weight to all relevant sentencing considerations or that his sentencing discretion miscarried in any way. This is not a case requiring the intervention of this Court. As the Court said in Spottiswood:
Had we been sentencing this young man at first instance we might not have imposed a sentence as lenient as that imposed by the judge. But that is not to the point. This Court’s intervention could only be justified if the sentence imposed was wholly outside the range of those open in the sound exercise of discretion. Synthesising all relevant considerations, we have concluded that it was reasonably open to the judge to impose the sentence that she did. The Court must remain astute to the stringency of the test of manifest inadequacy, given that it is vitally important that sentencing judges retain the discretion which the law commits to them.[50]
[50][2017] VSCA 146, [57] (Priest, Beach and T Forrest JJA).
It follows that the appeal must be dismissed.
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