DPP v Beck
[2021] VSCA 88
•7 April 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0147
| DIRECTOR OF PUBLIC PROSECUTIONS | Applicant |
| v | |
| CHRISTOPHER KEVIN BECK | Respondent |
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| JUDGES: | MAXWELL P T FORREST JA EMERTON JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 16 March 2021 |
| DATE OF JUDGMENT: | 7 April 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 88 |
| JUDGMENT APPEALED FROM: | [2020] VCC 979 (Judge Fox) |
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CRIMINAL LAW – Appeal – Sentence – Crown appeal – Standard sentence scheme – Rape (two charges) – Failure to comply with reporting obligations under the Sex Offenders Registration Act 2004 – Sentence of 6 years’ imprisonment on each charge of rape – Whether sentences manifestly inadequate – Guilty plea – Forcible rapes – Vulnerable victim – 18 weeks pregnant and with intellectual disability – Respondent in position of trust – Ignored protests of victim – High level of moral culpability – History of repeated sexual offending against vulnerable persons – Poor prospects of rehabilitation – Community protection, specific deterrence and denunciation – Appeal allowed – Rape sentences increased to 8 years’ imprisonment – Failure to report sentence increased to 9 months’ imprisonment – Sentencing Act1991, ss 5A(1)(b), 6E.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr B Kissane QC with Ms A Ellis | Ms A Hogan, Solicitor for Public Prosecutions |
| For the Respondent | Mr D Dann QC with Mr C Terry | Tyler Tipping & Woods |
MAXWELL P
T FORREST JA
EMERTON JA:
On 13 May 2020, the respondent pleaded guilty in the County Court of Victoria to one rolled up charge of rape involving digital penetration of the victim’s vagina (charge 1), one charge of rape involving penile penetration of the victim’s vagina (charge 2) and one charge of failure to comply with reporting obligations under the Sex Offenders Registration Act 2004 (charge 3).
On 2 July 2020, the respondent was sentenced as follows:
| Charge | Offence | Maximum | Sentence | Cumulation |
| 1. | Rape (rolled up) [contrary to s 38(1) of the Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences and Other Matters) Act 2014] | 25 years | 6 years | Base |
| 2. | Rape [contrary to s 38(1) of the Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences and Other Matters) Act 2014] | 25 years | 6 years | 6 months |
| 3. | Fail to comply with reporting obligations [contrary to s 46(1A) of the Sex Offenders Registration Act 2004] | 5 years | 3 months | Nil |
| Total Effective Sentence: | 6 years 6 months | |||
| Non-Parole Period: | 4 years 2 months | |||
| Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991: | 8 days | |||
| 6AAA Statement: TES 8 years 6 months NPP 6 years 6 months | ||||
| Other relevant orders: Life time reporting pursuant to SORA | ||||
The Director of Public Prosecutions (‘Director’) appeals the sentence on the single ground that the individual sentences on charges 1, 2 and 3, the orders for cumulation, and the total effective sentence and non-parole period imposed are each manifestly inadequate.
The offending[1]
[1]The summary of the offending and the respondent’s circumstances is taken from DPP v Beck [2020] VCC 979 (‘Reasons for Sentence’), the parties’ written cases, and the forensic psychiatric report of Dr Anthony Cidoni (dated 20 June 2020), which was before the sentencing judge.
The victim of the rapes committed by the respondent had previously been the partner of the respondent’s stepson, and was pregnant with his child. She has a mild intellectual disability, having a full-scale IQ of 69. At the time of the offending she was 31 years old and 18 weeks pregnant. In the course of the victim’s relationship with the stepson, the respondent and the victim developed a ‘father/daughter’ bond. After the stepson’s relationship with the victim ended, the respondent maintained contact with the victim.
On 29 July 2018, the victim contacted the respondent to ask him to bring her cigarettes. The respondent went to the victim’s house, where she was alone. While there, the respondent asked to look at the victim’s stomach, and then placed his hand on her thigh and asked her to spread her legs a bit more. He touched and then inserted his fingers into her vagina. She asked him to stop but he replied, ‘no Millie’.[2] The respondent continued inserting his fingers into the victim’s vagina, becoming a little rougher. This was conduct not the subject of any charge. The victim used the fact that a kettle was boiling as an excuse to move away from the respondent and end the assault.
[2]A pseudonym.
The respondent then had a shower. He re-emerged in his underwear with his penis exposed. The victim was sitting on the couch. The respondent asked her to look at the tattoo on his penis but she declined. The respondent then grabbed the victim’s hand and placed it on his penis.
The respondent sat down on the couch with the victim. He put his fingers into her vagina roughly, hurting her. She was concerned for the safety of her unborn child. The victim told him to stop three or four times but he said ‘just a little more Millie’. This conduct formed part of charge 1, which was a rolled up charge.
The respondent then took the victim to the bedroom, and again placed his fingers in her vagina. She asked him to stop, to which he responded, ‘a little bit longer’. This was also part of the conduct that constituted rolled up charge 1. Next, the respondent climbed on top of the victim, and inserted his penis into her vagina. This lasted for approximately three to four minutes until the respondent ejaculated (charge 2).
Two days after the offending, the victim was taken to hospital by ambulance after experiencing abdominal pains. During the admission, she disclosed to hospital staff that she had been raped two nights earlier.
The victim underwent a medical examination in the early hours of 1 August 2018. A number of forensic samples were taken. Subsequent testing determined that the respondent could not be excluded as one of the two contributors to the biological material (including sperm) on the vaginal swabs.[3] Later that day, investigators attended the victim’s home and removed items deemed to be of forensic value, including the doona cover from her bed. The doona cover was later analysed and the respondent could not be excluded as a contributor to the semen located on it.[4]
[3]The Likelihood Ratio was 100 billion. The other assumed contributor is the victim.
[4]Also with a Likelihood Ratio of 100 billion.
On 7 August 2018, the respondent was interviewed by police and agreed that he had been at the victim’s home to deliver some baby items, but stated that he had left the items at the door when it appeared no one was home. The respondent denied the offending, asserting that ‘this girl can friggen make some good stories up’. He also disputed that the tattoo on his penis was consistent with the description given by the victim of the tattoos she had seen. However, the respondent admitted to having used a hitherto undisclosed mobile telephone and to having tattoos that he had not disclosed in accordance with his obligations under the Sex Offenders Registration Act 2004 (charge 3).
The sentencing judge recorded that the failing to report charge (charge 3) arose in the following circumstance. On 4 October 2017, the respondent attended the Dandenong Police Complex for an annual review pursuant to the Sex Offenders Registration Act 2004. He failed to disclose his use of mobile devices and the tattoos on his penis and buttocks. He stated that he no longer used a mobile phone and disclosed some but not all of his tattoos. When arrested on 7 August 2018, the respondent admitted he had been using a mobile phone and that he had a tattoo on his penis.[5]
[5]Reasons for Sentence [3].
Respondent’s circumstances
The respondent was 68 years old at the time of offending and 70 years old at the time of sentencing. He was born in Melbourne into a family controlled by a violent and abusive father. His parents separated when he was about six years old and he went to live with his paternal grandparents, who treated him well. He attended a variety of schools but did not complete Year Seven. The respondent left home at the age of 14 to fend for himself. He is functionally illiterate.
Given his intellectual limitations, the respondent has a reasonable work history. He commenced a panel beating apprenticeship in his late teens but did not complete it. He obtained a truck licence when he was about 20 and worked as a ‘truck jockey’ for about two years. He then worked for General Motors Holden in Dandenong for about nine years until he was in his mid-30s. He went back to truck driving but he injured his back in a motor vehicle accident. He became eligible for the Disability Support Pension in about 1999, as a result of both his back injury and his illiteracy.
The respondent’s criminal history goes back to 1967 when he served a period of detention in a youth training centre. Until 1992 his offending consisted largely of dishonesty and drug offences, all dealt with in the Magistrates’ Court.
However, in 1997, the respondent was dealt with in the County Court of Victoria for an indecent act with a child under 16 and received a suspended sentence. The victim of this offending was the seven year old daughter of his then de facto partner.
In June 1999, the respondent was dealt with in the Broadmeadows Magistrates’ Court on two charges of committing an indecent act with a child under 16 and sentenced to 12 months’ imprisonment, which was served by way of a combined custody and treatment order. The victims in that case were eight year old twins.
In November 2008, the respondent was found guilty at trial of four charges of committing indecent acts with or in the presence of a child under 16 (‘2008 offending’). There were two victims of the 2008 offending: the 12 year old daughter of the respondent’s then partner and her 12 year old friend. The respondent received a total effective sentence of five years and four months’ imprisonment, with a non-parole period of three years and eight months. He was also placed on the Sex Offenders Register for life.
The respondent has been in a number of different relationships with women and has had four children in all. The respondent was in a relationship when he carried out the present offending.
At the plea hearing, the respondent tendered a report from forensic psychiatrist Dr Anthony Cidoni which, among other things, set out his psychiatric and medical history. Dr Cidoni recorded the respondent’s full-scale IQ to be only 71. He has a past diagnosis of schizophrenia manifesting in auditory hallucinations, but this has been well managed and he takes medication ‘as needed’. He also suffers from depression and has had two prior admissions to mental health units. The respondent has a significant cardiac history, which includes a heart attack in 2008, and more recent clinical interventions involving a stent, valve repair and coronary artery bypass grafting. He has ongoing difficulties with high blood pressure and cholesterol.
According to Dr Cidoni, the respondent’s offending was opportunistic and impulsive, displaying poor judgment and impulse control. Dr Cidoni stated that difficulties in inhibition and judgment could be related to the effect of a low IQ. He considered the respondent to be in the ‘well above average’ risk group for sexual re-offending.
The reasons for sentence
In considering the nature and gravity of the offending, the sentencing judge accepted that it was unplanned and that it was initially opportunistic and impulsive. However, after the respondent had showered the offending ceased to be impulsive. Moreover, the offending occurred in the victim’s home, where she was entitled to feel safe and it was aggravated by the fact that the victim was 18 weeks pregnant at the time and was scared for the safety of her unborn child.[6]
[6]Ibid [47].
However, the sentencing judge did not regard the fact that the victim was intellectually disabled as an aggravating feature in circumstances where there was no evidence that the respondent knew that she was intellectually disabled and where his own IQ was only two points higher than hers.[7] While the victim saw the respondent as a father figure and trusted him, and the respondent betrayed that trust, her Honour concluded that this was not a serious example of breach of trust in the way the term is commonly used in the criminal law.[8]
[7]Ibid [49].
[8]Ibid [48].
More generally, the sentencing judge observed that a number of serious features that are often present for rape were absent. She accepted that the offending was part of a single episode, and that the overall period of offending was not lengthy. There was no force or physical violence beyond the force necessary for penetration and the victim was not physically injured. However she was exposed to the risk of disease.[9]
[9]Ibid.
The sentencing judge observed that there was no evidentiary basis to reduce the respondent’s moral culpability, and that his counsel did not rely on Verdins for this purpose.[10]
[10]Ibid [34].
The sentencing judge accepted that while the respondent’s plea of guilty was not made at the earliest opportunity, it was of considerable value and should be treated as an early plea. It had a high utilitarian or practical value as it spared a cognitively impaired victim from having to give evidence and be cross-examined.[11] Her Honour also accepted the submission that the plea had additional value given the impact of COVID-19 and the delays in County Court trials. Had the respondent persisted with the trial it is likely it would not have been heard until well into the following year, or potentially even later, and he would have been able to remain in the community pending trial.[12]
[11]Ibid [15].
[12]Ibid [16].
While the sentencing judge was prepared to accept that the plea of guilty evidenced some remorse and that the respondent regretted his offending, she considered that he had little insight into his offending or meaningful remorse. His statement to Dr Cidoni that he believed that the victim led him on showed him to have effectively no insight into his offending.[13]
[13]Ibid [17].
The sentencing judge recognised the respondent’s advancing age and health problems as matters in mitigation. She accepted that while he was not currently unwell, he was an older man with a fairly serious heart condition and that this would make prison more difficult for him than for a young man in robust health. She was also prepared to accept that limb 6 of Verdins was ‘somewhat engaged’ as, in Dr Cidoni’s opinion, there was a risk that the respondent’s psychosis and depression would worsen in custody. The judge also accepted that limb 5 of Verdins had ‘slight relevance’ as the respondent’s mental health meant a sentence of imprisonment would weigh more heavily on him than a person of ordinary mental health. Generally, her Honour accepted that there was a risk of both his physical and mental health deteriorating while the respondent was in custody and she took this into account by way of mitigation.[14]
[14]Ibid [35]–[36].
The sentencing judge also accepted that, while advanced age and ill-health could never justify the imposition of an inadequate sentence, there was ‘some room’ to take into account the prospect that the respondent will spend a portion of the remainder of his life in prison, which would make prison more onerous and looking forward more difficult. She also accepted that because of the COVID-19 pandemic, conditions in prisons are more difficult, stressful and isolating. Further, there was the general anxiety that the respondent would experience arising from the fear of COVID-19 entering and spreading inside the prison system. Given his age and health problems, the respondent was at higher risk if he contracted COVID-19.[15]
[15]Ibid [37]–[38].
The sentencing judge recognised that given the respondent’s prior convictions, specific deterrence was a significant sentencing factor, despite his age. The substantial jail term he received in 2008 had proven to be no deterrent and the fact that he breached his reporting obligations also highlighted the need for specific deterrence.[16]
[16]Ibid [39].
The sentencing judge found the respondent’s prospects of rehabilitation to be ‘doubtful’ given his prior convictions and the fact that he was 68 years old and a registered sex offender when he committed the offences. She found him to have a high risk of sexual re-offending and, as a result, that community protection remained an important consideration, despite his age.[17]
[17]Ibid [40].
The sentencing judge found that charge 1 was not a serious example of a rolled up charge because it was effectively part of a single episode and she considered that there was no any real difference between the nature and gravity of charges 1 and 2 in all the circumstances of the offending.[18] Her Honour accepted that there should be substantial concurrency as between charges 1 and 2 because they were part of a single episode and also to give effect to totality and avoid a crushing sentence. She recorded that the prosecution had accepted that in the circumstances, substantial concurrency was appropriate. She acknowledged the existence of the presumption of cumulation but said that the principle of totality continued to apply.[19]
[18]Ibid [50].
[19]Ibid [51].
As to the fact that the sentences imposed were lower than the standard sentence for each offence, the sentencing judge said that, having considered all the circumstances and relevant factors identified in her reasons, including but not limited to the nature and gravity of the offending, the real value of the respondent’s guilty plea, the respondent’s personal circumstances, the impact of COVID-19 on the prison system and his age and health concerns, she had reached the conclusion that each of the sentences that she imposed was appropriate.[20]
[20]Ibid [52].
Ground of appeal
The sole ground of appeal is manifest inadequacy, as to the individual terms, cumulation and the total effective sentence.
In oral submissions, senior counsel for the Director stated that ‘the gravamen of [the] appeal’ was that the head sentences imposed on each of the charges of rape were manifestly inadequate. If the Director succeeded in establishing the manifest inadequacy of the head sentences, then it would be submitted that there was room for greater cumulation than that imposed by the sentencing judge.
The appeal therefore centres on whether the sentences of six years on each of the counts of rape are manifestly inadequate.
Submissions
The Director submits that the objective gravity of the offending was high in that the respondent was a trusted father figure of a cognitively impaired victim who invited him into her home at a time when she was particularly vulnerable as a result of her pregnancy. His behaviour, while not accompanied by other acts of violence, was nonetheless persistent and forceful despite the victim verbally expressing her objection a number of times. She was fearful for her baby’s safety and repeatedly asked the respondent to stop. Furthermore, the respondent did not wear a condom and thereby exposed the victim to the risk of sexually transmitted disease. The respondent raped the victim twice and there was a ‘somewhat sustained’ nature to the offending. While the offending was unplanned and initially opportunistic, the respondent’s conduct was not impulsive. In order to carry out charge 2 (penile/vaginal rape), the respondent moved the victim from a position on the couch into the bedroom.
The Director submits that the respondent’s highly relevant prior criminal appearances gave rise to a particular need for specific deterrence. The respondent has a history of sexual offending dating back to 1997, which has attracted sentences of imprisonment in various forms. The sentence of imprisonment imposed for the 2008 offending (five years and four months’ imprisonment with a non-parole period of three years and eight months) clearly had little deterrent effect on the respondent and his preparedness to act on his sexual impulses. The respondent is a recidivist and is recorded as a serious sexual offender, with a history of preying upon vulnerable victims. The Director submits that, having regard to the respondent’s recidivism, the sentencing judge, although indicating that she considered specific deterrence to be a significant sentencing factor, gave it insufficient weight.
The Director submits that the fact that the respondent lacked insight into his offending further emphasises the need for community protection. The respondent was considered to be at a high risk of sexual re-offending and his prospects of rehabilitation were described as ‘doubtful’. As a result, community protection should have been a primary sentencing consideration.
The Director also relies on the fact that the individual sentences imposed on charges 1 and 2 (six years respectively) fell considerably short of the standard sentence for rape, which is 10 years. The prosecution submitted to the sentencing judge that the offending was ‘at least mid-range’ taking into account ’only the objective factors’.[21] This was consistent with the submission on behalf of the respondent that the offending was broadly mid-range. It was said to be unclear from the reasons given by the sentencing judge why her Honour arrived at a sentence lower than the standard sentence for each offence.
[21]Sentencing Act 1991, s 5A(1)(b).
Moreover, so the Director submits, there was very little in the respondent’s favour by way of mitigating material. His plea of guilty was not at the earliest opportunity given that he initially denied the offending to the police and pleaded not guilty upon committal for trial. While the respondent has a low IQ and mental health problems, and his age and physical health have to be taken into account, those considerations did not warrant the type of weight afforded in R v RLP,[22] given that the offending occurred less than two years before his sentence.
[22][2009] VSCA 271.
As to cumulation, the Director points out that given the respondent’s status as a serious sexual offender, there was a presumption of cumulation on charges 1 and 2 pursuant to s 6E of the Sentencing Act 1991. Accordingly, there was a need to ensure that the totality principle was not applied in a manner that was inconsistent with the legislative purpose of s 6E.
The Director submits that the lack of cumulation ordered for each offence is compounded by the sentence imposed on charge 3. As a result of the 2008 offending, the respondent was placed on the Sex Offenders Register for life. His lack of compliance with his obligations as a registered offender, by failing to disclose the mobile telephone service he was using and failing to disclose all of the tattoos on his genitals and on his anal region, was a serious breach of his obligations. The victim’s identification of the respondent’s unique tattoos was a significant part of the prosecution case, particularly in circumstances where the respondent initially asserted that the victim’s description of those tattoos was inaccurate. According to the Director, this case illustrates the importance of ensuring that registered sex offenders disclose relevant matters and reinforces the need to give primacy to general deterrence in sentencing for offences of this nature.
Overall, the Director submits that the sentences imposed on each charge are not commensurate with community expectations that the courts will provide unequivocal denunciation and just punishment for the type of conduct in which he engaged. They do not send the requisite message to others who might consider using an opportunity to take advantage of vulnerable women in this way, or who might be inclined to ignore reporting obligations, that these offences will not be tolerated. The objective gravity of the offending demanded a far greater level of punishment in order to promote public confidence in the criminal justice system and its commitment to the protection of the community.
The respondent concedes that his offending was serious and involved a number of aggravating features. Moreover, the offences were ‘committed by a man with a relevant and disturbing criminal history’. He concedes that there was a significant need for general deterrence in this case, that specific deterrence was also a significant sentencing factor and that community protection should have been the primary sentencing consideration. However, he says that the sentencing judge specifically addressed each of these matters when imposing sentence. Her Honour detailed the respondent’s criminal history and observed that a previous sentence of imprisonment in 2008 had proved to be ‘no deterrent’. In turn, her Honour found the respondent’s prospects of rehabilitation to be ‘doubtful’ and that, because there remained a high risk of sexual offending, community protection remained an important consideration.
However, the respondent submits that while the sentencing judge clearly recognised that the serious sexual offending committed against a vulnerable victim and the breach of reporting obligations highlighted the need for specific deterrence, her Honour also recognised that there was an absence of some other aggravating features. She accepted that the opportunistic and impulsive nature of the offending could be related to the respondent’s low IQ and his difficulties with inhibition and judgement, that the offending was not pre-planned and that a number of serious features often present in the offence of rape were absent in this case. The sentencing judge also recognised powerful matters in mitigation operating in the respondent’s favour, including his plea of guilty at a relatively early stage, which had high utilitarian value and spared a cognitively impaired complainant the ordeal of having to give evidence and be cross-examined. Her Honour also recognised that in pleading guilty, rather than defer accepting responsibility and the inevitable period of substantial imprisonment that would follow, the respondent had taken the opposite course.
The respondent submits that this is a case where the impact of the COVID-19 pandemic on conditions in prison is of real significance. The respondent was at a higher risk of contracting COVID-19 in prison on account of his advanced age and existing health problems and the sentencing judge was correct to find that conditions in prison, which are ‘currently more difficult, stressful and isolating’, applied with particular force to the respondent’s case. This, in circumstances where her Honour was already satisfied that the respondent’s time in custody would be more burdensome on account of his physical and mental health problems. There was a related finding that there was a risk of the respondent’s physical and mental health deteriorating while he was in custody.
Moreover, so the respondent submits, while the sentencing judge noted the offender in R v RLP[23] was ‘significantly older and in far poorer health’, the respondent was still entitled to some mitigation of sentence, on the basis that the lengthy sentence of imprisonment that was to be imposed upon him would represent a significant portion of his remaining life.[24]
[23][2009] VSCA 271.
[24]Ibid [32]–[34] (Neave, Redlich JJA and Hollingworth AJA).
The respondent submits that in light of these matters in mitigation and in the absence of some matters of aggravation, it is understandable why individual sentences were imposed that were lower than the standard sentence that applies to rape. The standard sentence was but one of a number of matters that had to be taken into account in arriving at an appropriate individual sentence and the sentencing judge explained why she regarded the individual sentences that she was imposing on the charges as appropriate in light of the standard sentence.
Analysis
Manifest inadequacy is a stringent ground of appeal, difficult to make good. It must be shown that something has gone obviously, plainly or badly wrong in the exercise of the sentencing discretion. The sentence must be wholly outside the range that was open in the proper exercise of the sentencing discretion in the sense that it was not reasonably open to the sentencing judge to arrive at the sentence imposed had proper weight been given to all the relevant circumstances of the offending and the respondent.[25] An appellate court must be ‘driven to conclude that there must have been some misapplication of principle’.[26]
[25]DPP v Karazisis (2010) 31 VR 634, 662–3 [127]–[128] (Ashley, Redlich and Weinberg JJA); [2010] VSCA 350; DPP vZhuang [2015] VSCA 96, [40] (Redlich, Priest and Beach JJA); DPP v Macarthur [2019] VSCA 71, [58]–[60] (Ferguson CJ, Kaye and Weinberg JJA).
[26]R v Pham (2015) 256 CLR 550, 559 [28] (French CJ, Keane and Nettle JJ); [2015] HCA 39; cited in DPP v Weybury [2018] VSCA 120, [50] (Maxwell P and Hargrave JA).
The Director does not submit that the sentencing judge took into account any irrelevant consideration, or failed to take any relevant consideration into account. However, the ground of manifest inadequacy, like that of manifest excess, may admit of ‘a complaint that too much, or too little, weight was given to a particular matter’, and the resolution of such a complaint can be approached as a matter of inference from the sentence imposed.[27]
[27]Smith v The Queen [2020] VSCA 159, [12] (Maxwell P, Kyrou and Weinberg JJA).
In this case, the reasons of the sentencing judge are comprehensive, thoughtful and lucid. Her Honour carefully reflected upon each of the sentencing considerations raised by the parties. She had particular regard to the considerations and requirements that are enlivened when sentencing serious sexual offenders and to the existence and application in the sentencing synthesis of the standard sentence of 10 years for rape.
In our view, however, the sentences of six years on each of the charges of rape are manifestly inadequate, as is the total effective sentence of six years and six months. The sentences for rape fail to give adequate weight to the seriousness of the offending, or to the need for specific deterrence and community protection. We have already referred to the respondent’s woeful history of sexual offending against vulnerable people. The significant periods of incarceration he has served for those offences do not seem to have deterred him from re-offending.
It is no surprise that the respondent’s prospects of rehabilitation were described by the sentencing judge as ‘doubtful’.[28] We would describe them more bluntly as ‘poor’. The expert evidence is that he is in the ‘well above average risk group for sexual reoffending’.[29] He is a repeat sex offender who, despite his advancing age and ill health, represents an ongoing danger to vulnerable members of the community. He displays an evident lack of insight into his conduct and a corresponding lack of meaningful remorse. His disregard for the reporting requirements to which he has been subjected as a serious sex offender underlines his poor insight and lack of understanding of or concern for the harm that he has inflicted on his victims.
[28]Reasons for Sentence [40].
[29]Forensic psychiatric report of Dr Anthony Cidoni (20 June 2020).
As the judge correctly stated, the standard sentence provisions do not affect the sentencing court’s obligation to assess the seriousness of the subject offence. That assessment remains a necessary part of the process of instinctive synthesis and it is not constrained by the legislative definition of ‘objective factors’. Judges sentencing for standard sentence offences should continue to assess offence seriousness in the conventional way, taking into account both objective gravity and moral culpability. The standard sentence is a ‘guidepost’.[30]
[30]Brownv The Queen (2019) 59 VR 462, 465 [7], 479–80 [55]–[57] (Maxwell P, Priest, Kaye, Forrest and Emerton JJA); [2019] VSCA 286.
In our view, this was very serious offending. Although the first act of penetration was impulsive and opportunistic, the respondent then embarked on a persistent and determined course of conduct, carried out over a period of time. The fact that he ignored the victim’s repeated requests to stop is a very significant aggravating feature, in our view. Instead of respecting her entreaties to him to stop, the respondent treated the victim as an instrument of his own sexual gratification. In our view, the respondent bears a high level of moral culpability.
We consider, further, that the respondent’s failure to comply with his reporting obligations contrary to s 46(1A) of the Sex Offenders Registration Act is serious offending of that kind and must attract a higher sentence than the one imposed. As discussed, the respondent’s contumelious disregard for his obligations reflects his failure to appreciate the harm he has caused to others and his unwillingness to take responsibility for his actions.
Community protection must be an important sentencing consideration in this case. The term of imprisonment that is imposed must also represent just punishment for what the respondent has done and signal the community’s stern denunciation of his conduct. The respondent is, in our view, also a suitable vehicle for general deterrence.
As the sentencing judge found,[31] the respondent’s early plea of guilty was an important mitigating factor, particularly as it resulted in him going into custody at the height of the COVID-19 pandemic in circumstances where he was in a high-risk group due to his age and health conditions. More generally, as the respondent is in his 70s and in indifferent physical and mental health, prison will weigh more heavily on him than on a young able-bodied offender. Given his age, he will spend a significant part of his remaining life in custody. We accept that these factors present as reasons to moderate his sentence.
[31]Reasons for Sentence [15].
Balancing all of these factors and the guidance given by the standard and maximum sentences for rape, the respondent stands to be resentenced as follows. The respondent will be sentenced to eight years’ imprisonment on each of charges 1 and 2. The sentence on charge 2 will be the base sentence and a period of cumulation of one year on charge 1 will be ordered. The sentence on charge 3 will be nine months, with no cumulation. This produces a total effective sentence of nine years. The non-parole period will be fixed at six years.
For the purposes of s 6AAA of the Sentencing Act, we declare that, had the respondent not entered a plea of guilty on all charges, we would have sentenced him to a total effective sentence of 12 years with a non-parole period of nine years.
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