DPP v Bales
[2015] VSCA 261
•18 September 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2015 0079
| DIRECTOR OF PUBLIC PROSECUTIONS | Appellant |
| v | |
| TED BALES | Respondent |
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| JUDGES: | OSBORN, KAYE and McLEISH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 3 September 2015 |
| DATE OF JUDGMENT: | 18 September 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 261 |
| JUDGMENT APPEALED FROM: | [2015] VCC 377 |
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CRIMINAL LAW – Sentence – Director’s appeal – 34 historical sex offences committed against children – Sentence of 18 months for base sentence – Total effective sentence 6 years, non-parole period 3 years – Sentenced as ‘serious sexual offender’ under Sentencing Act 1991 pt 2A – Whether base sentence manifestly inadequate – Significance of delay – Whether orders for cumulation inadequate resulting in total effective sentence which is manifestly inadequate – Application of Sentencing Act 1991 s 6E – Principle of totality – Whether non-parole period manifestly inadequate – General deterrence.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr G J C Silbert QC with Mr B L Sonnet | Ms V Anscombe, Acting Solicitor for Public Prosecutions |
| For the Respondent | Mr D C Hallowes with Ms F H Todd | Croxford Partners |
OSBORN JA
KAYE JA
McLEISH JA:
On 27 March 2015 the respondent was sentenced in the County Court to 6 years’ imprisonment with a non-parole period of 3 years after pleading guilty to 34 historical sex offences committed between 1971 and about 1985. He had pleaded guilty to 22 charges of indecent assault upon a male person contrary to s 68(3A) of the Crimes Act 1958 (as it was at the time of the relevant offending); 11 charges of indecent assault contrary to s 44(1) of that Act (again, as it was at the time of the relevant offending); and one charge of gross indecency contrary to s 50(1) and (2)(a).
The Director of Public Prosecutions (the ‘Director’) appeals against the sentence on three grounds, each of which contends that an aspect of the sentence was manifestly inadequate in all the circumstances:
1.The individual sentence imposed on charge 26 is manifestly inadequate in all the circumstances.
2.The orders for cumulation on counts 4, 5, 6, 9, 10, 12, 17, 18, 25, 27, 28, 30, 33 & 34 are inadequate thus resulting in a ‘total effective sentence’ which is manifestly inadequate in all the circumstances.
3.The fixing of a non-parole period of 3 years imprisonment (as a proportion of the total effective sentence of 6 years imprisonment) is manifestly inadequate in all the circumstances.
For the reasons that follow, we would allow the appeal and re-sentence the respondent to a total effective sentence of 8 years and 5 months’ imprisonment with a non-parole period of 5 years and 8 months.
Circumstances of the offending
At the time of the offending, the respondent was known as Edward Vernon Dowlan. He changed his name to Ted Bales on 14 July 2011.
The offending, involving 20 complainants, occurred between 1971 and about 1985. The respondent was aged between 21 and 36. He was a Christian Brother and taught at a number of schools administered by the Christian Brothers order during that period. The complainants ranged in age from eight to 14 years old and were students enrolled at one of the many schools at which the respondent worked over the time of the offending.
The offending generally took place at the schools in question (at some of which the respondent also worked as a boarding house dormitory supervisor) although offending on four charges took place while the respondent was a guest at the home of the family of the relevant complainant (the subject of all of those charges).
The circumstances of the offending at the schools included a number of instances where students were sent to the back of a classroom under the pretext of discipline and assaulted while other students were told to face the front of the classroom, several cases where the respondent first purported to provide comfort or support to students in a vulnerable state, and others where the respondent cornered students in empty rooms or in toilet blocks. Sixteen of the offences involved the respondent fondling and/or rubbing the penis, testicles or buttocks of the complainants through their clothing or through their pockets. Eleven of the offences involved direct fondling or massaging of the complainant’s penis or buttocks and four of the offences involved the respondent touching the anus of the complainant.
The Crown contended that charge 26 reflected the most serious instance of offending. The sentencing judge agreed and imposed a base sentence of 18 months in respect of it. Charge 26 was a single charge of three acts of digital penetration, put on the basis that it was a continuing or composite act. At the time of this offending the respondent had become friendly with the relevant complainant’s family and had been invited to stay overnight and join the family for meals. Whenever the respondent would stay at their home, he would share a room with the complainant — he would sleep on the complainant’s bed and the complainant would sleep on a foldout bed. This happened, and the complainant was indecently assaulted, on at least two occasions.
On the occasion the subject of charge 26, the respondent got into bed with the complainant, rolled him over and rubbed the complainant’s back, buttocks and testicles under his clothing (charge 25). The respondent stroked his finger around the complainant’s anus and ultimately digitally penetrated his anus, removing his finger, and reinserting it a second and third time (charge 26). The complainant was aged 11 at the time of the offending.
Subsequent offending
On 17 June 1996, the respondent pleaded guilty to 12 counts of indecent assault upon a male person under the age of 16 years and 4 counts of indecent assault, in relation to 11 different complainants. On 9 July 1996, he was sentenced in the County Court to a total effective sentence of 9 years and 8 months’ imprisonment with a non-parole period of 6 years. The respondent successfully appealed and in 1997 was re-sentenced by the Court of Appeal to a total effective sentence of 6 years and 6 months’ imprisonment with a non-parole period of 4 years. He was released from prison in 2001.
Arrest and committal
The respondent was interviewed in relation to some of the complaints the subject of the present sentence as early as 1997 and again in 2002. He made no admissions on either occasion. In 2012, Victoria Police initiated a taskforce investigation into complaints of historical sex offending by the respondent. On 11 April 2014, during an interview with police, the respondent admitted his identity (noting that by this stage he had changed his name) and having been a Christian Brother during the relevant period. He made no admissions in relation to the offending and provided ‘no comment’ to all allegations.
The respondent was charged by police on 11 April 2014. He was released on bail but was remanded into custody on 9 October 2014.
Plea hearing
In written submissions tendered on the plea, counsel for the respondent conceded that the offending was clearly serious and involved a grave breach of trust. It was submitted that a significant benefit should be attributed to the respondent for the facilitation of justice and the utilitarian value of his guilty plea, which the Crown accepted had been entered at a very early stage.
Counsel submitted that the effect of delay fell to be considered by the sentencing judge and that the respondent had suffered from anxiety and uncertainty over an extended period of time. Against the background that there was no suggestion the respondent had reoffended in the past 30 years, counsel submitted that the principle of specific deterrence had little, if any at all, role to play in the sentencing process. Significant weight was put on the principle of totality and counsel submitted that, in this respect, the sentence imposed by the Court of Appeal in 1997 should also be taken into account.
Counsel tendered a letter prepared by Dr Maxwell Gayner, a consultant psychiatrist, which outlined the respondent’s history of anxiety and apprehension since he first began facing charges in 1993 and included a diagnosis of generalised anxiety disorder with dependent personality traits. Two personal references were also tendered, referring to the respondent’s volunteer work since his release from prison which supported former prisoners with isolation and significant health issues.
The Crown submitted that the respondent fell to be sentenced as a ‘serious sexual offender’ under pt 2A of the Sentencing Act 1991 on all charges as he had previous convictions for such offences. Accordingly, the sentencing judge was required, under s 6D of that Act, to have regard to the protection of the community as the principal sentencing purpose, and the presumption of cumulation in s 6E applied. But the Crown did not seek a disproportionate sentence on that basis. The Crown submitted that the moral culpability of the respondent was high and that there was a degree of premeditation in the offending.
The prosecutor conceded that the respondent was entitled to a significant discount in sentencing in relation to the plea but noted that the respondent had consistently declined to make any admissions in various interviews over the years. It was submitted that the respondent had not demonstrated genuine remorse or contrition. However, it was accepted that there was evidence of rehabilitation and that there was no suggestion of further offending since about 1985.
The Crown submitted that cumulation was appropriate in respect of all the offences but conceded some moderation was appropriate in respect of those counts that are referrable to the same complainant.
It was acknowledged by the Crown that totality was the guiding principle and that Verdins[1] principles applied in the very limited sense that it related to the tempering of general deterrence and taking into account that the respondent’s time in custody would be more burdensome than for others.
[1]R v Verdins (2007) 16 VR 269.
The Crown also acknowledged that the respondent was entitled to a sentencing discount by reason of the delay in respect of some of the charges between detection of the offending and sentencing.[2]
[2]R v Nikodjevic [2004] VSCA 222, [22].
The sentencing judge described the respondent’s offending as brazen and a serious breach of trust. He accepted and took into account the serious effect of the offending on the victims.
The judge found that the respondent was not suffering from any mental impairment that might be said to reduce his culpability for the offending. On the basis of a number of medical reports (including reports which had been tendered in the County Court in 1996) he was not convinced that the respondent had demonstrated any true remorse for any of his offending. Noting that the respondent claimed not to recollect any of the offending, he did not accept that this was, as one expert had suggested, a product of a hysterical amnesia.
Among other mitigating factors, the sentencing judge took into account the respondent’s early guilty plea, the delay since the offending which meant that matters had been hanging over the respondent’s head for a considerable time, and the respondent’s voluntary work. The judge noted that the conditions which enabled the offending were unlikely to occur again, making specific deterrence of little relevance. He accepted that the respondent’s reputation in the community had ‘virtually dissolved’ and that he had lost his profession and was essentially unemployable. He also accepted that prison would be more onerous for the respondent than for many prisoners and that he feared being assaulted, and referred to the respondent’s anxiety and depression.
The judge accepted that he should have regard to the principle of totality and was required to consider what the likely course of events would have been had the matters before him been brought before the court along with the offences dealt with in 1996. Notwithstanding the legislative policy in s 6E of the Sentencing Act, he considered that there should be considerable concurrency as between the sentences imposed with respect to each count. The following sentences were imposed:
Charge on Indictment Offence Maximum Sentence Cumulation 1 Indecent assault upon a male person
[Crimes Act 1958 s 68(3A)]
5 years
[Crimes Act 1958 s 68(3A)]4 months 1 month 2 (representative) Indecent assault upon a male person 5 years 4 months 1 month 3 (representative) Indecent assault upon a male person 5 years 4 months 2 months 4 (representative) Indecent assault upon a male person 5 years 9 months 2 months 5 Indecent assault upon a male person 5 years 9 months 2 months 6 Indecent assault upon a male person 5 years 9 months 2 months 7 Indecent assault upon a male person 5 years 6 months 2 months 8 Indecent assault upon a male person 5 years 4 months 1 month 9 (representative) Indecent assault upon a male person 5 years 9 months 2 months 10 (representative) Indecent assault upon a male person 5 years 9 months 2 months 11 Indecent assault upon a male person 5 years 5 months 2 months 12 (representative) Indecent assault upon a male person 5 years 9 months 2 months 13 (representative) Indecent assault upon a male person 5 years 6 months 2 months 14 (representative) Indecent assault upon a male person 5 years 6 months 2 months 15 Indecent assault upon a male person 5 years 4 months 1 month 16 Indecent assault upon a male person 5 years 4 months 1 month 17 Indecent assault upon a male person 5 years 9 months 2 months 18 Indecent assault upon a male person 5 years 9 months 2 months 19 (representative) Indecent assault upon a male person 5 years 4 months 1 month 20 (representative) Indecent assault upon a male person 5 years 6 months 2 months 21 (representative) Indecent assault upon a male person 5 years 4 months 1 month 22 Indecent assault upon a male person 5 years 4 months 1 month 23 Indecent assault [Crimes Act 1958 s 44(1)] 5 years
[Crimes Act 1958 s 44(1)]1 month 1 month 24 (representative) Indecent assault 5 years 4 months 1 month 25 Indecent assault 5 years 9 months 2 months 26 Indecent assault 5 years 18 months Base 27 Indecent assault 5 years 9 months 2 months 28 Indecent assault 5 years 9 months 2 months 29 Gross indecency [Crimes Act 1958 s 50(1) and (2)(a)] 3 years
[Crimes Act 1958 s 50(2)(a)]3 months 1 month 30 (representative) Indecent assault 5 years 9 months 3 months 31 Indecent assault 5 years 4 months 1 month 32 Indecent assault 5 years 4 months 1 month 33 (representative) Indecent assault 5 years 9 months 2 months 34 Indecent assault 5 years 9 months 2 months Total Effective Sentence: 6 years’ imprisonment Non-parole Period: 3 years’ imprisonment Pre-sentence Detention Declared: 169 days 6AAA Statement: 9 years’ imprisonment (NPP: 6 years) Other orders: Sex Offenders Registration Act 2004 — life reporting; sentenced as a ‘serious sexual offender’ on all charges
Ground 1
The first ground of appeal contends that the individual sentence imposed on charge 26 was manifestly inadequate in all the circumstances. The Director emphasised the following as the salient features of the offending:
(a) the victim was about 11 years old and the respondent was aged 33;
(b) this victim had been offended against earlier whilst at school (charges 23 and 24);
(c) the offence occurred at the victim’s own home (and in his own bed);
(d) the extraordinarily brazen nature of the offence was illustrated by the fact that the victim’s parents were in the home at the time of the offence;
(e) the respondent was in a position of trust both with the victim and his parents (as the victim’s teacher and as a religious instructor);
(f) the charge was continuing in nature involving three separate acts of digital penetration;
(g) the penetration was not slight or of a fleeting nature;
(h) the respondent told the victim that ‘he would fail in life because God would punish him for the acts being committed’; and
(i) the victim required counselling over a 10 year period to deal with the abusive conduct.
The Director emphasised the profound impact of the offending upon the victim, who was later diagnosed with clinical depression and received counselling over many years. It was submitted that, notwithstanding the plea of guilty, the respondent had not demonstrated any genuine remorse for this or any other of the offences.
The Director submitted that the circumstances of the offending in respect of charge 26 were close to the worst type of case conceivable for the offence of indecent assault. It was observed that the conduct, were it to take place today, would constitute the offence of rape.
Counsel for the respondent submitted that, given mitigating circumstances relevant to the exercise of the sentencing discretion, the sentence of 18 months was well within the permitted range. It was submitted that there was no evidence of any further offending by the respondent after about 1985, and that his rehabilitation should be regarded as complete. As a result, there was no occasion for giving particular weight to considerations of specific deterrence. Reliance was placed on the plea of guilty, and evidence of the respondent’s voluntary work. The respondent’s anxiety disorder would make prison more onerous for him. He submitted that all these considerations went to mitigate the penalty that might otherwise be appropriate.
As mentioned, the Crown accepted at the plea hearing that some discount in the sentence was appropriate by virtue of the time that has elapsed since the detection of the offending. It was submitted that the Court must look to the effects of delay, in particular delay since the offending was detected, in order to identify any unfairness arising from it, rather than applying any discount automatically. This is plainly correct. In R v Nikodjevic, Ormiston JA said:
A considerable number of authorities were cited to the Court which stood for the principle, so it was contended, that any delay between the time of offending and sentence is of sufficient relevance to require sentencing judges to explain why they do not take it into account whenever it is relied upon. ... But in my opinion there are many circumstances which need to be taken into account to determine what is ‘undue’ delay, and further factors must be considered in seeing whether such delay in fact ‘should work in favour’ of a particular prisoner. As Callaway JA said in R v MWH[3]: ‘It is the effects of delay that are important for sentencing’. Thus the principle, assuming it should be described as such, is often expressed in terms of the delay between ‘offending’ and sentencing … However, with great respect, one should be cautious about recognising the time between offending (as such) and sentencing except for certain specific purposes which were analysed with some care by Callaway JA in MWH. Thus it may show reformation of character over a significant period of a kind which would make rehabilitation largely irrelevant and greatly reduce, if not extinguish, the need for specific deterrence to be recognised in the sentence. But delay of that kind … does not give an automatic right for a reduction or discount in sentence. For example, an argument could not be put forward on the basis that the sentence had been hanging over an offender for a long time if in fact detection had occurred only a few months before sentence. It would be preposterous for an offender who committed incest on a six year old child to claim some automatic discount 12 years later where the complainant had first felt safe to complain about her father’s conduct only at the age of 18, and the charge had come on promptly for sentencing, whatever might otherwise be said about his behaviour and apparent reformation in the meantime.
Delay in sentencing, nevertheless, may be otherwise significant if the delay has occurred between the detection and charging of an offender and the time of sentencing, where the offender can fairly say that the sentence has been hanging over him or her for an unreasonable time, or where that person had chosen to reorganise his or her life upon an acceptance of guilt for the matters charged. Thus it is put forward not infrequently as a factor to be considered in the case of first offenders who have committed serious offences, for which they may feel uncertain whether they will be required to serve any term of imprisonment at all. The truth of the matter, however, is that every case is different and the factors seen properly to affect the exercise of the sentencing discretion will vary according to circumstance. One should therefore be cautious about asserting that there is a right to some automatic discount in every case of asserted delay. The most that can be said is that where the prosecuting authorities have in fact unduly delayed bringing the matter to court, there is much more likely to be such a discount, without the need to have regard to its particular consequences.[4]
[3][2001] VSCA 196, [18].
[4][2004] VSCA 222, [21]–[22] (citations and footnotes omitted).
In the present case, the offences were committed 30 or more years ago. There was questioning of the respondent, as already observed, in 1997. But at that time only two of the present 20 complainants had made statements to police. Four more complainants made statements in 2001 and 2002, one in 2006, one in 2010 and one in 2012. But 11 of the statements, including that relating to charge 26, were made in 2013 or 2014. Viewed in perspective, the allegations against the respondent were overwhelmingly made in the relatively recent past. The extent to which the respondent can fairly say that the sentence has been hanging over him for an extended period is limited accordingly.
At the same time, it is not to be denied that the passage of time has given the respondent an opportunity for rehabilitation. That may of itself, as the Crown conceded, warrant a reduced sentence. The evidence of rehabilitation in the present case is however somewhat limited. The assumption is properly to be made that the respondent has not offended since about 1985. The respondent is not likely again to find himself in the kinds of environment in which he was readily able to offend in the past. He has been able to apply himself usefully to important volunteer work, although he has not been gainfully employed. But more importantly, for present purposes, he has not expressed any remorse or contrition for his offending.[5] It cannot readily be said, and certainly cannot be assumed, that he is a different man to the one who committed the offences. Again, in the circumstances, the effect of delay in this regard also is therefore less than it might be in other cases.
[5]Cf, eg, R v MWH [2001] VSCA 196, [18]–[19].
Specific reference was made by counsel for the respondent to the stress said to have been caused to the respondent arising out of the elapse of time since the offending. Reliance was placed on the report of Dr Gayner, which described the respondent as having a generalised anxiety disorder, some problems with memory and concentration and a significantly lowered mood state (but not to a degree sufficient to diagnose a depressive illness). Dr Gayner states that ‘[t]hroughout the years following his release from prison, [the respondent] remained in a constant state of apprehension regarding his personal situation’. By that time, the respondent had already been interviewed again by police and was aware of the possibility of further charges. In the circumstances, it is far from clear that the anxiety disorder identified by Dr Gayner arose from the delay in bringing charges, rather than from the respondent’s awareness that further offending would come to light. Although some discount was acknowledged by the Crown to be appropriate on account of delay since detection of the offending, the further mitigating effect of the respondent’s psychological condition is therefore not great.
In our opinion, the Director was correct to characterise this as a case which approached the worst example of the offence of indecent assault. The offence involved three instances of penetration of the anus of the victim, who was 11 years old at the time. The offending took place in the victim’s own home, and in his own bed. The brazen nature of the offending and the breach of trust which it involved was exemplified by the fact that the parents of the victim were in the home at the time. The breach of trust involved a betrayal of the responsibilities of the respondent both as a teacher of the victim and as a member of the Christian Brothers order.
The offending was exacerbated by the fact that, during the offending, the respondent whispered to the victim that he would fail in life because God would punish the victim for the acts which the two of them were committing. Apart from suggesting to the victim that he was in some way responsible for the offending which was taking place, this statement further abused the religious authority of the respondent in circumstances of great emotional cruelty.
The maximum sentence for the offence of indecent assault at the relevant time was five years’ imprisonment. On any view, the offence in this case was an exceptionally serious example of its kind. Notwithstanding the mitigating circumstances upon which counsel for the respondent relied, in our opinion a sentence of 18 months’ imprisonment for this offence was manifestly inadequate.
Ground 2
The Director further contends that the orders for cumulation on a number of the counts were inadequate, so as to give rise to a total effective sentence which itself was manifestly inadequate.
The charges in question are each of those for which a sentence of nine months’ imprisonment was imposed. These sentences were generally those where the respondent had touched the complainant’s penis, buttocks or anus directly rather than over his clothing. The Director submitted that the orders for cumulation in respect of these charges, being two months in all cases except one (for which three months’ cumulation was ordered), were inadequate when viewed in the light of similar orders for cumulation made in respect of charges for which much lower sentences, mainly in the order of four to six months, were imposed in respect of less serious offending. It was submitted that cumulation orders of two months were inadequate to reflect the addition to the overall criminality of the respondent represented by each of the offences.
The Director emphasised that the respondent fell to be sentenced as a ‘serious sexual offender’, engaging s 6E of the Sentencing Act. Section 6E provides:
Every term of imprisonment imposed by a court on a serious offender for a relevant offence must, unless otherwise directed by the court, be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed on that offender, whether before or at the same time as that term.
The Director submitted that, properly applying s 6E, the sentencing judge should have imposed a significantly higher cumulation order in respect of these offences. It was noted that the offending as a whole involved 20 different boys aged from eight to 14 years. The offending occurred between 1971 and about 1985, and involved 14 charges of representative conduct. The sentencing judge had stated that the respondent had an apparent belief that he ‘had some right or entitlement to abuse’ the victims. He accepted that each of the victims had suffered significantly as a consequence of the offending.
The Director further submitted that, when the offending was aggregated with the offences for which the respondent was sentenced in 1997, the overall total effective sentence of 12 years and 6 months’ imprisonment with a non-parole period of 7 years was itself manifestly inadequate. This total effective sentence represented offending involving 50 offences against 31 different boys over a period of about 15 years, including the commission of penetrative offences on two different occasions. However, the Director’s primary submission was that it was artificial to apply the totality principle to the whole of the offending, given among other things that the sentences for the earlier offending were not imposed under s 6E.
Counsel for the respondent submitted that it could not be said that the orders for cumulation were ‘wholly outside the range’.[6] The mitigating circumstances relied on in relation to ground 1 were advanced also in relation to ground 2. It was submitted that, both in relation to the present indictment and in relation to the overall sentence for all of the offending, the sentence fell well within the bounds of the sentencing discretion. It was accepted that the orders for cumulation were modest, but it was submitted that the orders were consistent with the sentencing judge having arrived at appropriate sentences for each individual charge and then having moderated the orders for cumulation to arrive at a sentence complying with the principle of totality.[7] As already mentioned, it had been accepted by the Crown that cumulation should be moderated in cases where there was more than one charge relating to the same complainant.
[6]DPP v Karazisis (2010) 31 VR 634, 662–3 [127]–[128].
[7]DPP v Marino [2011] VSCA 133, [51].
In effect, the question which arises under ground 2 is whether the sentencing judge correctly applied s 6E. In R H McL v The Queen, McHugh, Gummow and Hayne JJ said of s 16(3A) of the Sentencing Act (the predecessor of s 6E):
Section 16(3A) gives effect to a legislative policy that serious offenders are to be treated differently from other offenders. It was plainly intended to have more than a formal effect, which is the effect it would frequently have if its operation was subject to the full effect of the totality principle. Given the terms of s 16(3A), the scope for applying the totality principle must be more limited than in cases not falling within that section. The evident object of the section is to make sentences to which it applies operate cumulatively rather than concurrently. The section gives the judge a discretion to direct otherwise. But the object of the section would be compromised and probably defeated in most cases if the ordinary application of the totality principle was a sufficient ground to liven the discretion. Since the relationship between s 16(3A) and the totality principle does not arise in this appeal, it is enough to say that 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 s 6E which replaced it) was not on the statute book.[8]
[8](2000) 203 CLR 452, 477 [76].
In Gordon v The Queen, Redlich JA stated:
A sentencing judge must evaluate the overall criminality involved in all of the offences for which the offender is to undergo sentence, ensuring that there is no disproportion between the totality of the criminality and the totality of the effective length of sentences imposed. The judge is also required to ensure that the totality principle is applied in a manner which will not undermine the legislative policy inherent in s 6E of the Sentencing Act 1991. This tension between the policy underlying s 6E and the principle of totality is difficult to reconcile. Authority has thus far provided no clear guidance as to the circumstances in which the statutory presumption of full cumulation under s 6E should override the principle of totality. However, it may at least be said that as the objective gravity of the total offending increases, so will the degree of cumulation which is ordered, thereby producing a total effective sentence which will more closely correspond with both the legislative policy underlying s 6E and the principle of totality.[9]
[9][2013] VSCA 343, [74]; see also Pasinis v The Queen [2014] VSCA 97, [66]–[67].
It is plain that the purpose of s 6E is to require an approach to sentencing which marks specific denunciation of each offence to which the section applies. That is particularly the case when the offending involves, as it does here, a number of different victims. The legislative policy inherent in s 6E is that the offences committed against individual victims will be separate and distinct subjects of punishment. This will generally involve orders for cumulation, moderated to the extent necessary to give effect to the principle of totality so far as that can be done consistently with the policy of the section.
In the present case, the orders for cumulation which were made in respect of the more serious offences were insufficient to mark the individual denunciation of the offending in question which s 6E requires. It was not open, in effect, to equate the offences for which sentences for nine months’ imprisonment were appropriate with those for which sentences in the order of four to six months were imposed. By doing so, the sentence failed to provide for orders making the provision for cumulation which was necessary to reflect the seriousness of the relevant offences consistent with the policy of s 6E.
It follows that we would also uphold ground 2.
Ground 3
Under the third ground, the Director submitted that the non-parole period of 3 years, being 50 per cent of the head sentence, was manifestly inadequate or, as it was put at the hearing, did not ‘look like a Victorian sentence’. It was submitted that the period fixed was manifestly inadequate because it gave insufficient weight to the importance of denunciation and general deterrence. Reliance was placed on R v VZ, where Callaway JA said, as to fixing a non-parole period:
All the relevant factors have to be taken into account. They are many and varied. I mention only three of them, because they bear on this case. The first is that a non-parole period has a penal element. The second is that, where either general or specific deterrence is important, that objective should not be undermined by an unduly short non-parole period. The third, which requires no citation of authority, is that a prisoner’s prospects of rehabilitation are almost always a significant consideration.[10]
[10](1998) 7 VR 693, 697–8 [15] (citations omitted).
The Director submitted that there was not present the ‘constellation of powerful mitigatory factors (such as genuine remorse, ill health, and so on) warranting the fixing of such an unusually low’ non-parole period.
It was submitted on behalf of the respondent that there was no precise formula by which the relationship between a non-parole period and the head sentence was to be determined. When regard was had to the respondent’s lack of prior convictions, and well-established rehabilitation by the time of the plea, the fixing of a non-parole period of three years was well within the sentencing discretion. It was submitted that regard also had to be taken of the fact that, as a result of the respondent not being released on parole when the non-parole period on his first sentence expired (for a period of 12 months), he would serve a minimum of eight years in custody for all of the offending.
It may be accepted, as the respondent submitted, that there is no precise formula for determining the relationship between a non-parole period and the head sentence. However, as Callaway JA observed in VZ, an unduly short non-parole period may undermine the objective of general or specific deterrence. Even accepting that specific deterrence was not a significant sentencing consideration in the present case, by reason of the fact that the respondent had, as it was put on his behalf, moved on or put the offending behind him, that consideration is of substantially diminished relevance when questions of general deterrence are examined.
In relation to general deterrence, it cannot escape observation that, in contrast to the respondent, not all of his victims have been in a position to move on or put the offending behind them. Offending of the kind in question all too often causes irreparable and lasting harm to victims and their families, friends and associates, making general deterrence an especially important sentencing consideration (as s 6D of the Sentencing Act further emphasises in the present case).
This was exemplified in the victim impact statements that were tendered before the sentencing judge. While each of the circumstances of the respective victims is naturally different, the following examples are representative of many of the statements:
My life changed for ever because of one school year. No more could I believe and trust and this has extended through my adult life. I have destroyed relationships with family and partners when they only wanted the best for me. I have never believed I deserve to be totally loved or nurtured. This has created some terrible times for special people in my life.
Another statement reads as follows:
Boarding school, not [the respondent], did teach me a lot about how to be a good person and also how to treat people and while I wish [the respondent] no ill will, he has got to know his acts of self-indulgence are a living, ongoing, unwelcome scar that I carry and it itches in many ways and at any time for which I have no control. I did not deserve that and I would like to think that [the respondent], the person who burdened me with this overwhelming pain, would show some level of remorse.
The sentencing judge stated that, although the respondent’s early plea was submitted to indicate some remorse, he was not convinced that he had truly demonstrated remorse. That was because the respondent had not admitted to any recollection of any of the sexual offences with which he had been charged. The sentencing judge was not convinced the respondent suffered from a hysterical amnesia, which had been advanced as the most logical explanation for this phenomenon. He noted that there were occasions on which the offending had continued in a brazen fashion even after some victims and some parents had confronted the respondent regarding his conduct.
The respondent’s absence of remorse, coupled with the number of victims and the period over which the offences took place, warranted a non-parole period that was significantly more than half of the head sentence. It follows that, irrespective of grounds 1 and 2, we would also uphold ground 3.
Sentence
Each of the Director’s grounds of appeal having been upheld, it falls to this Court to re-exercise the sentencing discretion in respect of those sentences as to which error has been established.[11]
[11]Ludeman v The Queen (2010) 31 VR 606.
Notwithstanding the plea of guilty and the other matters advanced by way of mitigation, the offending the subject of ground 1 was of the utmost seriousness for the reasons already set out. We would sentence the respondent to a term of 2 years and 6 months’ imprisonment on charge 26.
In relation to the question of cumulation, we would order that there be three months’ cumulation (rather than two) in respect of charges 4, 5, 6, 10, 17, 25, 27, 28, 33 and 34. This better reflects the relative seriousness of these charges, compared to the other charges as to which two months’ cumulation was ordered. We would order that there be four months’ cumulation, rather than two, in the case of charges 9, 12 and 18. These sentences should reflect the fact that they involved serious offending in respect of victims not the subject of other charges. This is a further basis for requiring specific denunciation in respect of these charges. For the same reason there should be one month’s additional cumulation in respect of ground 30, as to which the trial judge already imposed cumulation of three months. In total this results in an additional 17 months’ cumulation.
It follows that the total effective sentence should be 8 years and 5 months. We would impose a non-parole period of 5 years and 8 months.
When added to the sentence imposed in respect of the first set of offences, the total term of imprisonment is 14 years and 11 months, with a non-parole period of 9 years and 8 months. In our opinion, bearing in mind the mitigating factors referred to, this is a proportionate sentence for 50 offences committed over about 15 years against 31 young boys who were entitled to expect that their teacher and religious instructor would not dishonour his position of trust towards them in the way he did.
To the extent that it is necessary to do so by virtue of s 6AAA of the Sentencing Act, we would declare that, but for the pleas of guilty, the respondent would have been sentenced to a term of 11 years and 6 months’ imprisonment with a non-parole period of 8 years.
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