DPP v BGJ
[2007] VSCA 64
•17 April 2007
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 375 of 2006
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BGJ |
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JUDGES: | BUCHANAN AP and VINCENT and EAMES JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 12 April 2007 | |
DATE OF JUDGMENT: | 17 April 2007 | |
MEDIUM NEUTRAL CITATION: | [2007] VSCA 64 | |
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Criminal law – Sentence – Director’s appeal – Incest committed in 1986 – Prisoner on parole at time, for other offences of incest against complainant and her sisters – Resulting pregnancy – Indecent assault committed in 2005 – Victim the intellectually and physically disabled daughter of first complainant – Delay in complaint of incest – Prisoner aged 66 years when sentenced – Illness of prisoner rendering imprisonment more onerous – Pleas of guilty – Sentences of four years and six months’ imprisonment for incest and six months for indecent assault, total effective sentence of five years with two years and six months’ non-parole period, held manifestly inadequate – Sentencing Act 1991, s 5(2AA)(b), 5(2)(b).
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr D A Trapnell | Ms A Cannon, Solicitor for Public Prosecutions |
| For the Respondent | Mr P F Tehan QC with Mr S R Johns | Galbally & O’Bryan |
BUCHANAN AP:
I agree that the appeal should be allowed for the reasons stated by Eames JA. I consider that the offences displayed a complete disregard by the respondent for the emotional and physical integrity of his daughters: he treated them as if they were his chattels. The impact of the offences upon the victims was devastating. I would allow the appeal and re-sentence the respondent as Eames JA proposes.
VINCENT JA:
I agree that this appeal should be allowed for the reasons given by Eames JA in his judgment and that the respondent should be re-sentenced in the manner proposed by him.
EAMES JA:
This is an appeal by the Director of Public Prosecutions with respect to sentences imposed on 30 October 2006 in the County Court. The respondent, a man aged 66 years at the time of sentencing, pleaded guilty to one count of incest, contrary to s 52 of the Crimes Act 1958 (which was committed at a time when the maximum penalty was 20 years’ imprisonment), and one count of indecent assault (contrary to s 39 of the Act), which carried a maximum penalty of ten years’ imprisonment. The respondent was aged 45 years at the time of the first offence and 65 years at the time of the second. The circumstances of the two offences are quite remarkable, both cases, in my opinion, falling into the worst category of such offences, and thoroughly justifying intervention by this Court so as to increase the sentences that were imposed below.
A proper understanding of the seriousness of the two offences requires some recounting of the history of the relationship between the respondent and the two victims.
In June 1982 the respondent was convicted on 27 counts of incest, involving all three of his daughters. Eight of those offences, which occurred between May 1972 and November 1981 concerned his youngest daughter, S, who was 13 when the last of the offences occurred, and aged eight when she was first exposed to sexual abuse. The respondent was sentenced to six years’ imprisonment with a non-parole period of three years, but after remissions was released upon serving 22 months.
As a result of making complaint against her father S was removed from the home and placed in Allambie Childrens’ Home, from which she absconded, thereupon being placed in Winlaton Girls’ Home. The respondent’s wife stood by him and upon his release on parole, in April 1984, he resumed co-habitation with his wife. The daughter S moved into separate accommodation with another family and in December 1985, shortly after her 17th birthday, and when she was home alone, the respondent entered the house. She told him to leave but he did not and he had intercourse with her, throwing a $20 note at her when he had finished and was leaving the house. It was conceded on behalf of the respondent that S did not consent to sexual intercourse, but it was not conceded – and the prosecutor acknowledged that the Crown could not so prove beyond reasonable doubt - that the respondent knew that she was not consenting. This act of intercourse took place while the respondent was on parole with respect to the previous sexual offences against S and her sisters. As a result of that act S fell pregnant and gave birth to a daughter, N, in 1986. Save for confirming the fact to the respondent some years later, S did not disclose to her family or anyone else that the respondent was the father. Nearly twenty years later, in October 2005, N became the respondent’s victim of the indecent assault which constitutes count 2.
N was born with spina bifida and hydrocephalus, together with dislocated hips, which led to chronic health problems throughout her life, resulting in 56 admissions to hospital, with multiple instances of orthopaedic surgery, plastic surgery and treatment for infectious diseases. She suffered a wide range of problems including intellectual disability, a neurogenic bladder and bowel, and partial paraplegia. She spent much of her time in a wheelchair.
At the time of the offence against her, N was aged 19 years but had the intellectual capacity of an 11 year old child. She also suffered depression. The offence against N occurred when the respondent collected her from the swimming pool to drive her home. On the journey he asked her if anyone had touched her breasts and then placed his hand down her t-shirt, under her bra, and touched her breasts. As he did so he tongue kissed her. N was distressed and reported this behaviour to her mother and her sister. S reported the matter to police and when interviewed the respondent admitted the offence and was charged with indecent assault. Whilst at court for an appearance relating to the indecent assault offence S and her mother engaged in a heated argument, in the course of which S told her, for the first time, that the respondent was the father of N. She then reported to police her own 1985 assault. The respondent made a no-comment record of interview as to that complaint but was charged with incest and subsequently pleaded guilty to that offence also.
With respect to count 1 the respondent fell to be sentenced as a serious sexual offender pursuant to s 6B(3) of the Sentencing Act 1991. That required, by virtue of s 6D, that the protection of the community be the principal purpose of sentencing, and by s 6E, unless otherwise ordered, the sentence of imprisonment on count 1 had to be cumulative upon the sentence on count 2. Count 2, itself, was not a relevant sexual offence for the purposes of s 6E of the Sentencing Act.
The respondent was sentenced to four years and six months’ imprisonment on count 1 and six months’ imprisonment on count 2, the latter sentence being ordered to be served cumulatively upon the sentence on count 1, thereby producing a total effective sentence of five years’ imprisonment. A non-parole period of two years and nine months’ imprisonment was fixed.
There are two grounds of appeal. First, the Director contends that the individual sentences, the total effective sentence and the non-parole period were each manifestly inadequate. The second ground contends that the sentencing judge erroneously had regard to the abolition of remissions of sentences, contrary to s 5(2AA)(b) of the Sentencing Act 1991. Under ground 1 seven particulars of the complaint of manifest inadequacy are set out, identifying sentencing factors which were said to have been undervalued by the sentences.
The circumstances of the two offences were described by the learned sentencing judge as “so outrageous as to defy appropriate adjectival description and beggar belief”. Although I have reached a firm conclusion that the sentences were manifestly inadequate, I acknowledge that the task facing the sentencing judge was, as he said, a very difficult one, and he was rightly concerned that the level of depravity that characterised the conduct of the respondent should not unbalance the sentencing process. In his report to this Court the judge observed that whilst the Director now complains that the sentencing discretion miscarried no assistance was provided to him, as the sentencing judge, by way of submissions as to the appropriate range of sentence for such a complex case. That observation is well justified.
On the plea neither the prosecutor nor defence counsel referred his Honour to a single authority, nor to any provision of the Sentencing Act 1991. His Honour said that he regarded it as a difficult case and after discussing with the prosecutor some of the particular issues which arose in the case – including delay, the change in sentencing practices over 20 years and the fact that the respondent had re-offended against the same victim with respect to whom he had previously been imprisoned – he asked the prosecutor whether she was able to cite any relevant authorities. It is clear that his Honour was seeking assistance generally, as to these and any other special features of this case. No authorities were cited. Furthermore, insofar as complaint is now made, under ground 2, that his Honour failed to correctly apply s 5(2AA)(b) and s 5(2)(b) of the Sentencing Act, neither provision was referred to him by either the prosecutor or defence counsel.
On the appeal Mr Trapnell, in his thorough and careful submissions as counsel for the Director, provided the Court with a great deal of statistical information, and also case references relevant to determining the appropriate range of sentences for similar offences. Furthermore, and in addition to a number of authorities which had initially been identified in the written outline of argument filed on behalf of the Director, Mr Trapnell cited twenty six appeal decisions concerned with such issues as the gravity of the offence of incest,[1] the aggravating circumstance of a new offence being committed against the same victim,[2] an offence committed while on parole,[3] pregnancy as an aggravating circumstance,[4] the physical or mental vulnerability of the victim,[5] delay as a mitigating factor,[6] and the relevance of advanced age[7] and ill-health[8] of the offender.
[1]R v Sposito, unreported Court of Criminal Appeal (Vic) 7 June 1993, at 4-5, per Marks J; R v Wakime [1997] 1 VR 242 at 244 per Winneke P; R v WEF [1998] 2 VR 385 at 387 per Winneke P; R v VZ (1998) 7 VR 693 at 699 per Batt JA; DPP v DAK [2004] VSCA 175 at [34] per Vincent JA; DPP v VH (2004) 10 VR 234 at [11] per Callaway JA; at [19]-[23] per Eames JA.
[2]R v Tahche (1992) 62 A Crim R 75; R v Hall (1994) 76 A Crim R 454.
[3]R v Schwab (1989) 42 A Crim R 1 at 3, per Young CJ.
[4]R v Parfitt [2006] VSCA 91; R v Ware [1997] 1 VR 647; R v VZ (1998) 7 VR 693; DPP v WJW (2000) 2 VR 497; R v Magner [2004] VSCA 202 at [63].
[5]R v Smith, unreported Court of Criminal Appeal (Vic), 18 April 1986; R v Saunders (1995) 80 A Crim R 37; DPP v WJW (2000) 2 VR 497.
[6]R v Dick (1994) 75 A Crim R 303, at 307-8; R v Glennon [1993] 1 VR 97 at 126; R v MWH [2001] VSCA 196 at [18] per Callaway JA; R v Nikodjevic [2004] VSCA 222 at [21] per Ormiston JA.
[7]R v Belbruno (2000) 117 A Crim R 150 at 153-4 [9], per Winneke P; R v Gregory [2000] VSCA 212 at [21] per Winneke P; R v Saw [2004] VSC 117 at [41] & [42] per Redlich J; R v Yates [1985] VR 41 at 48.
[8]R v Smith (1987) 44 SASR 587, at 589 per King CJ; R v Van Boxtel (2005) 11 VR 258 at [30] & [33] per Callaway JA.
Mr Trapnell’s submissions were of considerable assistance to this Court, but were no less than what the sentencing judge might also have expected. Had this judge, an extremely experienced and careful sentencer, been provided with the assistance he sought, and which we received, it is highly likely that an appeal would have been avoided.
The impact of these events on both S and N are described in graphic terms in the victim impact statement of S and in the reports that were tendered to the Court with respect to both S and N.
N reported to Cheryl Musgrove, a counsellor with the South Eastern Centre Against Sexual Assault, that upon discovering that the respondent was her father, and not her grandfather, she had feelings of betrayal, sadness, shame, disgust and anger. She said “I am really angry and often punch walls because of what is happening in my life”. She had been prescribed anti-depressant medication. Ms Musgrove reported “N has spoken about her disbelief of finding out her grandfather was her biological father. She spoke about feeling overwhelmed and disgusted about this information and hated him for what he has done. N said ‘I am scared that he may come around and hurt me again’”.
One consequence of the offending against N is the impact it had on the relationship between N and her mother, S. N told Ms Musgrove of her concern about the impact on her mother of the offence against N. She said her mother always feels sad and stays in her room “and this makes me feel sad because I did not know what to do for her”.
Dr Philip Graves, a paediatrician, whose report detailed the extraordinarily severe disabilities with which N had been confronted during her life, also spoke of N’s dependency on her mother for all aspects of her care. He said that the mother, S, had remained the constant caregiver, supporter and advocate for N throughout her inpatient and outpatient treatment.
In her victim impact statement S graphically described the impact on her of the assaults both on herself and that on her daughter. She said of her daughter that “the saddest part is I now wonder what my daughter thinks of me and of herself. I wonder how she is going to end up, because she knows who her biological father is. We used to be really, really close but we are not now. I think that somewhere in her head is [the belief] that I have, or the world has, betrayed her.”
In her victim impact statement S said that “I feel like I am the criminal and not him. I feel like I have been punished”. She said that as a result of her pregnancy and birth of N “I have been raising a child for 20 years who has chronic health problems and I am reminded of the incident every day. I am angry because of the reminder. It is with me 99% of the time. Anger that I was not protected by my mother and siblings. I am angry that he stole my innocence. I feel violated. I am angry that I never had a normal childhood. I am angry that I never got an education.” She said that she blamed herself for what happened to her daughter. She expressed her disgust that the respondent, knowing, as she believed he did know, that N was his child, had committed the offence against her. She expressed concern that everybody now knows who N’s biological father is.
S said, “There was so much anger, hurt and betrayal”. She said that she gets drunk frequently, has nightmares most nights and relives the abuse on herself and on her daughter constantly. She describes her life as a nightmare. Although she has other children from a failed marriage she has not had a normal sexual relationship with anyone, and has few close friends. Her protectiveness does not permit her children to lead a normal life, she said.
The principles governing a Director’s appeal have been enunciated many times in judgments of the Court.[9] A Director’s appeal should be brought only in rare and exceptional circumstances.[10] As Winneke P held in Director of Public Prosecutions v Whiteside and Dieber[11] the Court should interfere on behalf of a Director’s appeal only in rare cases where, inter alia, it is necessary to maintain proper sentencing standards and principles, and the Court would not interfere merely because its members thought that they would have imposed a more severe sentence themselves. The inadequacy must be such as to indicate error in or departure from principle.
[9]See for example Director of Public Prosecutions v Bright (2006) 163 A Crim R 538 at [10] and R v Clarke [1996] 2 VR 520 at 522.
[10]Everett v The Queen (1994) 181 CLR 295 at 300.
[11](2000) 1 VR 331 at 335-336.
On behalf of the Director counsel submitted that when regard was had to the circumstances of the offences and the prior convictions of the respondent the sentences imposed were so low as to constitute clear and egregious error, and were so disproportionate to the seriousness of the crimes as to shock the public conscience and undermine public confidence in the criminal justice system.[12] As to the sentence on count 1 counsel pointed to the following considerations as having been undervalued by his Honour, although it was accepted that the judge had taken each factor into account:
[12]See Director of Public Prosecutions v Bright (2006) 163 A Crim R 538 at [10].
· The re-victimisation of the complainant.
· The fact that the offence was committed whilst the respondent was on parole for offences relating to the same complainant, as well as her sisters.
· The resulting pregnancy.
· The fact that the respondent was a serious sexual offender.
· The impact of the offence on the complainant and on her daughter N, as disclosed in the victim impact statements.
· The impact of the offences on the family, causing a breakdown in the relationship between the mother and her daughter N.
As to the gravity of count 2, counsel for the Director contended that the following matters were of most significance, but had been undervalued by the sentencing judge:
· The physical and mental disabilities of the complainant.
· The fact that the respondent knew of those disabilities.
· The gross breach of trust.
· The impact of the offence on the victim.
Mr Tehan, senior counsel for the respondent, submitted that the indecent assault offence should not be regarded as falling within the worst category of such offences. He submitted that the offence was a single instance, was of short duration and was limited to touching the breasts of the complainant. He contrasted that with the facts of other cases that have come before the courts with more serious features but which have resulted in a sentence less severe than that imposed here, but he acknowledged the limitations of such comparisons. He submitted that this case ought to be regarded as an instance more appropriately falling with the category of the average sentence, which was identified in the sentencing statistics for indecent assault in 2002/2003. The average sentence in that year was seven months’ imprisonment.
Mr Tehan submitted that the fact that no offence had been committed by the respondent over the 20 year period demonstrated that, although he had little if any access to sexual offender counselling when he was previously imprisoned and released on parole, the respondent had substantially rehabilitated himself prior to this offence, and thus had good prospects for rehabilitation in future.
Mr Tehan’s submission as to the nature of the offence seems to me to inappropriately concentrate on the precise physical conduct which constituted the indecent assault rather than on the totality of the indecency and offensiveness as it was experienced by the victim. In addition, the contention that there had been a process of rehabilitation of the respondent, and that there was insight into his offences needs to be viewed against the backdrop of what he said about his offending when interviewed by police.
In his record of interview concerning the offence against N the respondent was asked what mental age he thought N was and he said “Who knows? I don’t know. Fourteen, fifteen, twelve. Who – you’ll never know with her.” He said that he had asked N if he could feel her breasts and “she said she didn’t care, ok, she didn’t worry about it.” He was asked whether he kissed her whilst he was feeling her breasts, to which he responded “just the done thing, isn’t it”.
N’s statement to police was then read to the respondent by an interviewing police officer. She said in her statement that the respondent had asked if he could put his hand down her top. She said she couldn’t say anything: “He scares me”. Then he kissed her on the mouth, putting his tongue into her mouth. She said “it was gross” because “it is my Pa and he shouldn’t do things like that. It was a big kiss, it seemed to go on for about a minute. It was gross.” Apart from correcting a couple of minor matters, he did not dispute her account. He denied her allegation that he had said that one day he would like to put his fingers into her vagina. He agreed that he had said to her “don’t say anything to anyone because it gets me into trouble”.
The respondent was asked whether he was saying that N was happy with what he did. He answered “I don’t know her – what her thoughts were but she didn’t – she didn’t say, ‘No you – you can’t do that’ or anything like that. She just shrugged and said other people had been – had felt her breasts … and she didn’t mind if I did”. He agreed that she was not leading him on but said “she didn’t say no when I asked her”. He said he shouldn’t have done it, he knew it was wrong, and “it’s stupid”.
As his Honour recognised, notwithstanding the seriousness of the offending there were a number of mitigating factors that had to be taken into account. In the first place there were the pleas of guilty, which he found to have been entered at the earliest opportunity. In addition, the respondent had a history of gainful employment and counsel tendered character references from past employers.
The respondent is now aged 67 years and has serious health problems. His Honour accepted that the respondent had himself been the victim of sexual abuse as a child: at the age of nine or ten being sodomised by a youth aged about 17 or 18. He was also subsequently sexually abused by an uncle. Such a history is relevant to sentencing but the weight to be given to it will depend on the totality of circumstances in a case.[13] In this case his Honour appears to have given it appropriate weight.
[13]R v Lomax (1998) 1 VR 551, at 560-1.
His Honour found that the respondent suffered hypertension and artificial urethral sphincter stress incontinence, lumbar osteoarthritis, osteoarthritis of the hips, and peripheral vascular disease. The left femoral artery is totally occluded and he had 30 to 50 per cent stenosis of the right femoral artery. He was due to have an operation for this condition whilst in custody. In 2002 he suffered prostate cancer, resulting in a prostatectomy with residual urinary stress incontinence and subsequently suffers erectile dysfunction. His Honour accepted that the general ill-health and age of the respondent, together with the fact that he would serve his sentence in protective custody, meant that imprisonment could be particularly difficult for him.
The advanced age of the respondent is a relevant consideration.[14] It is recognised that each year of the sentence which the respondent must serve represents a substantial portion of the period of life left to him.[15] But as Winneke, P observed in R v Gregory[16], age alone cannot be permitted to justify the imposition of an unacceptably inappropriate sentence.
[14]See R v Cumberbatch (2004) 8 VR 9.
[15]See R v Yates [1985] VR 41.
[16][2000] VSCA 212 at [21].
His Honour accepted that there had been considerable delay in the reporting of the incest offence but he recognised that the delay was entirely understandable since as a result of reporting the original offences of incest, at a time when she was aged 13, S had been forced into institutional care.
Mr Tehan emphasised the impact of delay on the respondent, but as Ormiston JA observed in R v Nikodjevic,[17] whilst delay is a relevant consideration it is “undue” delay which is the relevant factor and in cases of sexual offences delay in reporting does not give an automatic right to a reduction or discount in sentence. This was not an instance where delay has meant that the respondent has had hanging over him the threat of prosecution and imprisonment.
[17][2004] VSCA 222 at [21].
In submissions on the plea, counsel relied on reports by consultant forensic psychologist, Elizabeth Warren and consulting psychologist, Jacob Topy, both of which reports were compiled prior to disclosure of the offence which constituted count 1. The respondent had not told either psychologist of that offence and, indeed, had expressly denied to Mr Topy that any offending had occurred after his release from prison. In those circumstances, the learned sentencing judge was rightly unwilling to place great weight on those reports but he did have regard to the history of sexual abuse in the childhood of the respondent, which was detailed in the report from Ms Warren.
Ms Warren reported that the respondent showed signs of suicidal ideation but also high shame and low self esteem and had symptoms of depression, loss of enjoyment of activities, loss of sleep through worry and anxiety. In her report Ms Warren described the respondent as “a frank interviewee”. He said of the offence against N – who he described as his granddaughter – that he knew she was confined to a wheelchair for much of the time and had limited literacy, but he had “lost sight of the fact” that she was vulnerable because she was the brightest one there, and “I knew she had intercourse previously because before Christmas I kinda asked her, had a discussion with her”. Ms Warren described the respondent as having extremely high levels of shame, and said he was a man of well above average intellectual ability. She described him as contrite, remorseful and having insight.
As I have said, the report of Ms Warren must be discounted to some extent by virtue of the failure of full disclosure by the respondent, but his Honour appears to have accepted that there was some evidence of remorse, at least with respect to the child N, although apart from the plea of guilty itself, the signs of true remorse and self awareness seem to me to have been quite limited and not to have extended to S.
The respondent told Mr Topy that there had not been any other sexual relations with his daughters since the time he had been in prison, which was a blatant lie. Mr Topy, being unaware of the true situation, reported that the respondent appeared to answer questions put to him honestly. He concluded that he was unlikely to be at risk of re-offending.
This was clearly a case in which the principle of general deterrence had to be given great weight and his Honour acknowledged that to be so. As to the requirement that protection of the community be the paramount consideration for sentencing, his Honour acknowledged that the respondent’s state of health and disability rendered that less of a consideration. Nonetheless, he regarded general deterrence and specific deterrence, just punishment and denunciation, as being of particular importance, as indeed they were.
As to the sentence on count 1, the sentencing statistics for 2002-2003 which were referred to us, record the 90th percentile[18] as a sentence of five years’ imprisonment. The highest sentence for incest, of the 85 instances, was seven years’ imprisonment in that year. Mr Tehan submitted that it could not therefore be said that the sentence imposed here, of four and a half year’s imprisonment, fell outside the appropriate sentencing range.[19]
[18]That is, the point in the distribution of custodial sentences at which 10% of the sentences are longer, and 90% are shorter.
[19]Counsel also referred to sentences in other cases where the facts appeared to be more serious than the present case but the sentence imposed was comparable or less than in this case: he cited, in particular, R v Ware [1997] 1 VR 647, DPP v MJ [2000] VSCA 66. I reviewed many recent sentencing decisions in this Court concerning incest cases in my judgment in DPP v VH (2004) 10 VR 234, at 238-242.
The crime of incest is both prevalent and has a capacity to erode the decency of family life and the trust and confidence of its victims, as Winneke P observed in Director of Public Prosecutions v G.[20] The nature of the offence requires the Court to punish it severely, placing particular emphasis on principles of general deterrence, denunciation and protection of young persons.[21]
[20][2002] VSCA 6 at [9].
[21]See R v Ware (1997) 1 VR 647, R v Wakime (1997) 1 VR 242, R v VZ (1998) 7 VR 693 at 699, R v WEF [1998] 2 VR 385 at 387, DPP v VH (2004) 10 VR 234 at [11] and at [19]-[23].
In my opinion, the offence against S was one of particular gravity. To have committed the offence while on parole for offences against the same victim, to have done so without any apparent concern for the possibility of pregnancy, and when knowing the impact of his previous offending on S, brings this case within the category of worst cases; it is no less so because it was a single instance of incest. The consequences for the victim of this single offence have been truly devastating, and they are continuing. As she said in her victim impact statement, S lived with and hid the awful truth of the paternity of her daughter, endured the terrible suffering of N throughout her life – as well as the demands that were placed on herself – as a constant, daily, reminder of the horror of the offence committed against herself.
Having regard to principles of double jeopardy, in addition to the fact that the respondent pleaded guilty to these offences, and in addition to the factors of mitigation and the circumstances in which he will serve the sentences, the sentence that I would impose on both counts upon re-sentencing will be significantly less than would otherwise have been appropriate.
In my opinion the sentence on count 1 ought be set aside and in lieu thereof a sentence of six years’ imprisonment should be substituted.
As to count 2, whilst it may be said that the actual incident of indecent assault was brief, and was limited in character, the fact that it occurred at all renders it an appalling instance of the offence. In the prosecution opening, it was asserted that in 2000 the respondent asked S whether he was the father of N. She told him he was, in response to which he laughed and walked away. It was not until 2006, after the complaint of incest had been made by S, that DNA tests were conducted to prove that the respondent was the father of N. In submissions on the plea counsel for the respondent said that his instructions were that although he had been told, “at times”, that he was the father, the respondent did not accept that to be the case, until the DNA results were announced. Counsel said he had been instructed that the respondent “had been told” at different times that another person was the father, but it was not stated that it was S who had said so. His Honour did not make an express finding that the respondent knew he was her father when he committed the offence against N. On the plea counsel for the respondent made the sensible concession that “it matters not” because, as he acknowledged, the offence would have been no less grave had he committed the offence in a state of uncertainty as to whether his victim was his daughter or granddaughter.
Given the prior convictions of the respondent, the fact that many of them related to his daughter S, given his knowledge, at the very least, that N might be his own daughter; having regard to his awareness that N was so severely disabled; given, too, what must have been his awareness of the importance of the relationship of S and her daughter, and of the likely devastating impact to S of sexual abuse by him of N, then the indecent assault on N was so offensive as to place this offence well within the category of the most serious of such offences. If its seriousness placed it within the 90th percentile then the sentencing statistic suggested that the average sentence for offenders at that level was two years and five month’s imprisonment. In my view, the extraordinary vulnerability of N and the even more extraordinary breach of trust which was involved in the offence against N renders a sentence of imprisonment of six months for the indecent assault so inadequate as to constitute error.
I would set aside the sentence on count 2 and – once again, allowing for factors which particularly pertain to Director’s appeals in moderation of a new sentence – would substitute a sentence of 18 months’ imprisonment.
Whilst it might well be appropriate to require that the whole of the sentences on counts 1 and 2 be served cumulatively, the fact that this is a Director’s appeal dictates that only 12 months of the sentence on count 2 should be served cumulatively on the sentence imposed on count 1.
This produces a total effective sentence of seven years. I would order that the respondent serve five years’ imprisonment before being eligible for parole.
Ground 2
Ground 2 of the Director’s grounds of appeal relates to this passage in the sentencing remarks:
“The result of the delay, however, is that you are now being sentenced for a crime committed over 20 years ago when your time in prison will no longer be subject to remissions and your age and serious general ill health will render service of this sentence commensurately more burdensome.”
Section 5(2AA)(b) of the Sentencing Act reads:
“Despite anything to the contrary in this Act, in sentencing an offender a court must not have regard to –
(a)…
(b)any sentencing practices arising at any time out of section 10 of this Act as in force at any time before its expiry.”
Section 5(2)(b) reads:
“In sentencing an offender a court must have regard to -
(a) …
(b) current sentencing practices; and …”
Given the conclusion I have reached on ground 1 it becomes unnecessary to deal with ground 2, and I will refer to it only briefly. Mr Trapnell submitted that s 5(2AA)(b) prohibits any regard being had to the fact that remissions had been abolished, and he submitted that the language used by his Honour coupled with the fact that the sentence was only four and a half years’ imprisonment on count 1 suggested that his Honour had discounted the sentence by reference to the benefit the respondent would have obtained by way of remissions had he been sentenced in about 1986.
Mr Tehan submitted that his Honour was merely making an observation, in passing, one that was factually correct, but had made it clear that he was sentencing by reference to current sentencing practices, as he was required to do by s 5(2)(b), and as in the course of the plea both counsel had accepted he was required to do (although neither provision was specifically mentioned).
It is unnecessary to reach a decided view on this issue. Even if the remarks carried the meaning attributed to them by Mr Trapnell, I doubt whether his Honour would thereby have contravened s 5(2AA)(b), since s.10 did not apply when count 1 was committed.[22] In any event, it seems to me that his Honour was merely observing that had the respondent been sentenced in 1986 he may well have served less actual time in prison than would be deemed appropriate by the sentencing standards of 2006. His Honour was not, in my opinion, thereby saying that he would not impose a sentence that was appropriate by today’s sentencing standards. Had his Honour intended to sentence by reference to 1986 standards and to have regard to the effect of remissions the sentence he imposed would have been significantly lower than he imposed.
[22]S 10 required the sentencing court to reduce a sentence if the abolition of remissions, which occurred by s 3 of the Corrections (Remissions) Act 1991, meant that the prisoner would spend more time in custody than would have been the case if remissions still applied: see R v Boucher [1995] 1 VR 110.The section was in operation only from 22 April 1992 until 22 April 1997.
Whilst the sentence imposed represented, in my respectful opinion, an overweighting of mitigating factors and an undervaluing of aggravating factors – that was done when seeking to apply current practices, and his Honour’s approach was not inconsistent in principle with that dictated by s 5(2)(b); it was erroneous in the application of current practices.
Conclusion
The Director’s appeal against sentence should be allowed, the sentences below be set aside and in lieu thereof the respondent be sentenced on Count 1 to six years’ imprisonment and on count 2 to eighteen months’ imprisonment. I would order that twelve months of the sentence on Count 2 be served cumulatively with the sentence on count 1. The total effective sentence thereby is seven years’ imprisonment. I would order that the respondent serve five years’ imprisonment before being eligible for parole.
Save for adjusting the period of pre-sentence detention to be declared for the Court’s records I would confirm the other orders made below.
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