DPP v Dalgliesh (a pseudonym)
[2016] VSCA 148
•29 June 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2015 0190 | |
| DIRECTOR OF PUBLIC PROSECUTIONS | Appellant |
| v | |
| CHARLIE DALGLIESH (A PSEUDONYM)[1] | Respondent |
[1]To ensure that there is no possibility of identification of the victims of the sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the respondent.
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| JUDGES: | MAXWELL ACJ, REDLICH and BEACH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 15 March 2016 |
| DATE OF ORDERS: | 18 March 2016 |
| DATE OF JUDGMENT: | 29 June 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 148 |
| JUDGMENT APPEALED FROM: | DPP v Charlie Dalgliesh (a pseudonym) (Unreported, County Court of Victoria, Judge Dean, 11 September 2015) |
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CRIMINAL LAW – Appeal – Sentence – Crown appeal – Incest, sexual penetration of child under 16 – Offending against daughters of de facto partner – Resultant pregnancy of 13-year-old victim – Subsequent termination of pregnancy – Total effective sentence 5y 6m, sentence 3y 6m on charge involving pregnancy – Whether manifestly inadequate – Pregnancy as aggravating factor – Current sentencing practice for comparable offending – Need for consistency of sentencing – Sentence lenient but not outside range – Appeal dismissed – Sentencing Act 1991 s 5(2)(b) – Crimes Act 1958 s 44.
CRIMINAL LAW – Offences – Characterisation – Incest – Sexual penetration an act of violence – Not inherently less serious than rape – Presumption of harm – Clarkson v The Queen (2011) 32 VR 361, discussed – Crimes Act 1958 s 44.
SENTENCING – Principles – Current sentencing practice – Incest – Incest involving dependent child – Mid-range seriousness – Whether current sentencing practice reflects objective gravity and moral culpability – Whether current sentencing practice consistent with maximum penalty – Current sentencing inadequate – Need for higher sentences – Hogarth v The Queen (2012) 37 VR 658; Ashdown v The Queen (2011) 37 VR 341; Harrison v The Queen (2015) 74 MVR 58, discussed – Crimes Act 1958 s 44.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr C B Boyce SC with Ms M Stylianou | Mr J Cain, Solicitor for Public Prosecutions |
| For the Respondent | Mr P S Tiwana with Mr J G Westmore | Joseph Burke Law |
| Appearing as Amicus Curiae | Mr D A Dann QC with Mr P J Smallwood | Law Institute of Victoria and Criminal Bar Association |
MAXWELL ACJ
REDLICH JA
BEACH JA:
Overview
This is an appeal against sentence brought by the Director of Public Prosecutions. The respondent (‘CD’) pleaded guilty in the County Court to charges of incest, indecent assault and sexual penetration of a child under 16 and was sentenced to five years and six months’ imprisonment, with a non-parole period of three years.
The charges involved offending against the two daughters of CD’s partner (P). The offending the subject of charge 1 resulted in the victim falling pregnant. She was 13 years old.
The Director appeals on two grounds: first, that the sentence of three years and six months imposed on charge 1 (incest) is manifestly inadequate; and second, that the orders for cumulation (totalling two years on three further charges) resulted in a total effective sentence of five years and six months, which is manifestly inadequate.
The Director placed particular reliance upon current sentencing practices (‘CSP’), to which the sentencing judge was bound to have regard.[2] The Director submitted that the sentence imposed on CD was not in conformity with existing sentencing standards, as reflected in a large number of comparable cases and a body of information provided by the Sentencing Advisory Council.
[2]Sentencing Act 1991 s 5(2)(b) (the ‘Sentencing Act’).
On 18 March 2016, we made orders dismissing the Director’s appeal against sentence. We did so because the Director was unable to establish that the sentences imposed were outside the range of sentences reasonably open to the sentencing judge based upon existing sentencing standards.[3] Set out in Part A below are our reasons for that conclusion.
[3]Karazisis v The Queen (2010) 31 VR 634, 662 [127] (‘Karazisis’); Anderson v The Queen (2013) 230 A Crim R 38, 44–47 [21]–[26].
The issue raised on the appeal called for a comprehensive examination of current sentencing practice for offences of incest of mid-range seriousness. The appeal has allowed the question of the existing standards for that offence to be fully ventilated.
On that general question, the Director submitted that the sentences imposed for this category of offending were disproportionately low when considered against the yardstick of the maximum penalty of 25 years’ imprisonment, having regard to the objective gravity of the offending and the high moral culpability of the offender. For the reasons set out in Part B below, we would uphold that submission. Sentences for incest offences in the mid-range of seriousness should be progressively increased so as to properly reflect the objective gravity of this offence.
We turn first to our reasons for dismissing the Director’s appeal against sentence.
A. THE DIRECTOR’S APPEAL
CD was sentenced as follows:
| Charge on Indictment | Offence | Maximum | Sentence | Cumulation |
| 1 | Incest[4] | 25y | 3y 6m | Base |
| 2 | Incest | 25y | 3y | 9m |
| 3 | Indecent Assault[5] | 10y | 1y 6m | 6m |
| 4 | Sexual penetration of a child under 16[6] | 10y | 3y | 9m |
| Total Effective Sentence: | 5y 6m | |||
| Non-Parole Period | 3y | |||
| 6AAA Statement | 8y with a non-parole period of 5y | |||
| Other relevant orders | Forensic Sample Order; Registered on the Sex Offenders Register for life; sentenced as a serious sexual offender in respect of charges 3 and 4 | |||
[4]Crimes Act1958 s 44(2).
[5]Crimes Act1958 s 39(1).
[6]Crimes Act1958 s 45(1).
The Director appealed against the sentence on the following grounds:
(a)the sentence imposed on charge 1 (incest) is manifestly inadequate in all the circumstances; and
(b)the orders for cumulation on charges 2 (incest), 3 (indecent assault) and 4 (sexual penetration of a child under 16) are inadequate, thus resulting in a total effective sentence which is manifestly inadequate.
Background
Some time after CD commenced a relationship with P, he began residing with her. P had three children, all of whom lived with her. There were two girls (J and K) and a boy (L). J had been diagnosed with a mild intellectual disability.
At a time when K was between the ages of nine and 14, she entered the bedroom which P and CD shared. CD was in the bedroom, having recently had a shower. K climbed into the bed. CD approached her, took his towel off and then inserted his penis into her mouth. K was shocked and did not know what was happening. CD grabbed her head and moved it back and forth (charge 4 – Sexual penetration of a child under 16).
Shortly afterwards, CD stopped this conduct and K returned to her own bedroom. The prosecution accepted that, at the time of this offending, it could not be said that CD was in a de facto relationship with P.[7] It was accepted by defence counsel on the plea that this offending had occurred first in time and prior to the offending the subject of charge 1.
[7]Crimes Act 1958 ss 35(1), 44(2). But see the discussion of Sutton v The Queen [2015] VSCA 251 (‘Sutton’) – below, at [57].
On a subsequent occasion, when K was aged 13, CD was in bed whilst P was having a shower. K climbed into the bed. CD moved himself towards K and inserted his penis into her vagina (charge 1 – Incest). He ejaculated inside her vagina and as a result of this K fell pregnant. The pregnancy was terminated.
Fearing repercussions due to her pregnancy, K stated falsely that she had had sex with a male school friend. As a result, P and her children moved, with CD, to a new town following the termination. Although CD did not encourage the lie, he did not correct it, and allowed the family to continue to believe that the pregnancy had resulted from a sexual encounter with a school friend. This also enabled CD to continue to live with the family.
Charges 2 and 3 concern J, the older sister of K. As mentioned earlier, J suffers from a mild intellectual disability. When J was 15 or 16, CD penetrated her vagina with his penis (charge 2 – Incest). On a subsequent occasion, when J was 16, CD approached her and begged her for sex. J sat on a couch in the lounge area and lifted up her dress. CD then placed his penis in the area of her vagina (charge 3 – Indecent assault). CD’s offending in respect of charge 3 was observed by P, which resulted in the ending of her relationship with him.
The sentencing reasons
During the plea and sentence, the judge identified the relevant features of the case as follows. CD had no prior convictions. He had pleaded guilty at the first available opportunity, and had spared the victims the trauma of having to give evidence. The pleas facilitated the course of justice and demonstrated CD’s remorse. CD had also expressed his remorse to P and the victims after P found him engaging in the conduct the subject of charge 3. Although CD did not initially give a completely open and frank account in his record of interview, he had eventually cooperated with the authorities.
Charge 2 was based solely on CD’s confession to police in his record of interview. A substantial discount was required on that account. His prospects of rehabilitation were assessed as being good. He had suffered ‘catastrophic losses’ during the Black Saturday bushfires in February 2009 and, as a result, suffered from post-traumatic stress disorder and acute depression.
Charge 1 was the most serious of the offences and the pregnancy that resulted was an aggravating feature. The offending had had a profoundly traumatic effect upon the victims. Although CD was abusing alcohol and cannabis during the period of offending, this did not in any way excuse the serious offending. The sentence imposed had to be calculated to deter him and others from such offending Just punishment and denunciation were relevant sentencing considerations.
Inadequacy of sentence for incest
As noted earlier, the Director submitted that the sentence of three years and six months’ imprisonment on charge 1 was manifestly inadequate. The seriousness of the offending was said to be aggravated because CD had engaged in unprotected penile-vaginal sexual intercourse with K, who was 13 years old at the relevant time, and this had resulted in her falling pregnant. As already mentioned, K underwent a pregnancy termination shortly after.
Further, the victim was young and vulnerable and CD had breached the trust he owed her. CD by his silence supported K’s explanation that another person was responsible for the pregnancy, which had caused the family to relocate. The Director described the conduct as ‘wicked and committed to satiate sexual lust’ rather than reflecting any misguided affection for the victim, and this increased CD’s moral culpability.
As noted above, the sentencing judge described the offending as having had ‘a profoundly traumatic effect’ upon the victim.[8] There can be no doubt that the victim impact is extremely serious. The victim was saddled with the extraordinary emotional and psychological burden of being pregnant at 13 and then having to undergo a termination. In addition, she had to engage in a subterfuge to conceal the identity of the person who had caused her to become pregnant. The moral repugnance of the offending cannot be overstated.
[8]Ibid [12].
CD submitted that, whilst the sentence on charge 1 could be characterised as lenient, it was nevertheless within the permissible range open to the sentencing judge, as demonstrated by current sentencing practice. CD drew upon the well-recognised limitations inherent in a Crown appeal, conveniently set out in Director of Public Prosecutions v Bright,[9] that an appeal should not be brought unless the inadequacy in the sentence was clear and egregious. That is, the sentence must be so disproportionate to the seriousness of the crime as to undermine public confidence in the ability of the courts to play their part in deterring criminal activity. Even then, the court has an overarching discretion not to interfere.[10]
[9](2006) 163 A Crim R 538.
[10]Karazisis (2010) 31 VR 634, 648 [50].
The Director submitted that the offending fell within the mid-range category of seriousness, with pregnancy being an obvious aggravating factor, and drew comparable cases to the Court’s attention. CD submitted that the comparable cases, including those relied on by the Crown, showed that the sentence was reasonably open to the sentencing judge, especially in circumstances where there were significant matters in mitigation which were unchallenged on the plea.
Comparable cases
It is common ground that the pregnancy was a highly aggravating factor. So much was conceded by defence counsel on the plea, and declared by the sentencing judge. We turn first to those cases provided by the Crown which involved pregnancy. The parties accepted that those decisions necessarily informed the permissible range open to the sentencing judge.
We should, however, note that the cases now relied upon as comparable were not drawn to the sentencing judge’s attention by the prosecutor. Particularly now that sentencing judges do not have the benefit of a submission by the Crown as to sentencing range, it is essential that the prosecution provide comparable cases and other guidance as to the relevant sentencing standards. His Honour was not given the necessary assistance by either party.
In R v Ware,[11] the offender, who was convicted following a trial, was originally sentenced to nine months and 12 months respectively on two charges of incest where the victim had fallen pregnant. The Director of Public Prosecutions appealed on the ground of manifest inadequacy. Hedigan AJA, with whom Winneke P and Hayne JA agreed, described the case as a ‘deplorable example of incest, leading to a pregnancy and its termination, the circumstances of which, beyond doubt, must have been grossly traumatic to the complainant.’[12]
[11][1997] 1 VR 647.
[12]Ibid 654.
His Honour said that the original sentences failed to reflect the objective gravity of such serious offending:
[I]n my opinion, the trial judge … failed to give appropriate weight to the seriousness of the offences here involved, namely that a 35 year old man, in a position where he had the obligation of a parent towards his 15 year old stepdaughter, blatantly abused his position of trust to debauch her, rendered her pregnant, arranged an abortion, and subsequently shortly thereafter debauched her again.
The courts have had occasion, more often than they would care to remember, particularly in the last decade, to consider matters raised by these cases, involving both the interests of young persons and societal interests in protecting them by the detection and punishment of this type of crime, which strikes at the familial roots of civilised society.[13]
The offender was re-sentenced to four years on each charge of incest, to be served concurrently, and a non-parole period of two years was fixed.[14]
[13]Ibid 653.
[14]The maximum penalty at that time was 20 years’ imprisonment. The Court applied the discount for double jeopardy.
In OAA v The Queen,[15] the offender pleaded guilty to five charges of incest against his natural daughter. The most serious charge was a representative count of incest, spanning a period of 7–8 weeks. The victim, who was 14, became pregnant and later had a termination. Sentencing error was conceded and, in resentencing, this Court imposed a sentence of five years’ imprisonment on the representative charge.
[15][2010] VSCA 155.
In GEM v The Queen,[16] the appellant pleaded guilty to two counts of indecent assault on a child under 16, and three counts of incest. The victim was his step-daughter. She was aged between 12 and 15 at the time. One of the acts of incest — which attracted the base sentence of five years — resulted in the victim becoming pregnant (the pregnancy was later terminated). The appeal against sentence was dismissed. The Court said:
The appellant’s conduct was utterly abhorrent. It extended over a lengthy period. It called for both general and specific deterrence. It also required denunciation in the strongest possible terms.[17]
[16][2010] VSCA 168.
[17]Ibid [61].
In R v VZ,[18] this Court confirmed individual sentences of five and seven years’ imprisonment respectively on two counts of incest, each of which resulted in pregnancy. The then maximum penalty was 20 years’ imprisonment. The accused had pleaded not guilty at trial, and had shown no sign of remorse. In that case, the victim gave birth following each offence of incest.
[18][1998] 7 VR 693.
In Director of Public Prosecutions v WJW,[19] this Court allowed a Crown appeal against sentence on a charge of maintaining a sexual relationship with a child under 16. The 56-year-old offender (who pleaded guilty) had maintained a sexual relationship for 18 months with a 12 to 13-year-old girl who had a mental age of nine or 10. She became pregnant as a result. An operation to terminate the pregnancy was unsuccessful, and the victim later gave birth. The birth of the child was not taken into consideration by the sentencing judge, as the judge was not aware that the victim was still pregnant. The victim had been subjected to repeated sexual acts over the prolonged period, and there was no evidence of remorse. This Court doubled the sentence — from three years’ to six years’ imprisonment — and fixed a non-parole period of four years.
[19](2000) 2 VR 497.
In CF v The Queen,[20] the offender pleaded guilty to three charges of incest, the first of which resulted in the pregnancy of the 16-year-old victim. The pregnancy was terminated, causing her ‘severe psychological distress’.[21] The sentence on that charge was eight years’ imprisonment. Sentencing error having been conceded, however, this Court reduced that sentence to six years’ imprisonment.
[20][2010] VSCA 275.
[21]Ibid [1].
In Director of Public Prosecutions v CJA,[22] the offender had pleaded guilty to eight representative charges of incest with his biological daughter. The daughter was aged 19 at the time of offending, and had an intellectual disability. The offending occurred over a two month period, and resulted in the victim falling pregnant and giving birth to a physically-impaired child. This Court found that the offending ‘did not fall into the worst category of the offence of incest’.[23] In the light of current sentencing practice, the individual sentence of three years’ imprisonment on the charge relating to the pregnancy fell ‘at the lower end of the range of sentences reasonably open to the sentencing judge’.[24] The offending was said to have been ‘significantly aggravated’ by the fact that the victim had given birth to a child.
[22][2013] VSCA 18 (‘CJA’).
[23]Ibid [34].
[24]Ibid [36].
In Director of Public Prosecutions v BDJ,[25] the offender was charged with five counts of incest, and one count of indecent act with a child under 16. Count 3 was a representative count of regular penile/vaginal sex, occurring over a period of a year, which resulted in a pregnancy which was later terminated. This was not the first instance of incest inflicted on the victim by the offender. The sentence of four years’ imprisonment on that charge was held not to be manifestly inadequate. In reaching that conclusion, the Court expressly had regard to recent sentences for incest, as well as to the plea of guilty and the principle of double jeopardy which then applied to Crown appeals. A term of four years’ imprisonment was also imposed on a representative count of incest, offending which occurred subsequent to the termination of the pregnancy.
[25][2009] VSCA 298.
Director of Public Prosecutions v BGJ[26] was said to be an example of ‘worst category’ offending. The respondent pleaded guilty to one charge of incest against one of his daughters (and one of indecent assault). The offences were committed while he was on parole for previous incest offences against all three of his daughters. As a result of the later offending, the daughter fell pregnant. She gave birth to a severely disabled daughter who, 20 years later, became the offender’s victim in the indecent assault which constituted count 2. The Court allowed the Director’s appeal and resentenced the respondent (allowing for double jeopardy) to six years’ imprisonment on the incest charge.
[26](2007) 171 A Crim R 74 (‘BGJ’).
RSJ v The Queen[27] also involved ‘worst category’ offending. The applicant had sexually abused his daughter over a period of 28 years. He pleaded guilty (relevantly) to 10 charges of incest. Over the period of the sexual abuse, the victim had borne four children to her father, one of whom died and two of whom were born with intellectual disabilities. On count 5, an offence of incest resulting in pregnancy, he received a sentence of four years. Count 4 was a representative count representing some 700 instances of sexual intercourse. The sentence on that charge was five years. The total effective sentence was 22 years and five months’ imprisonment. His appeal against that sentence was dismissed by this Court. The individual sentences were not the subject of any separate consideration.
[27][2012] VSCA 148 (‘RSJ’).
CD also relied on two recent County Court sentences, neither of which had been the subject of a Director’s appeal. The first was Director of Public Prosecutions v Tanner (a pseudonym).[28] Charge 1 was a representative charge of incest for offending occurring over a period of two years, involving multiple acts of sexual intercourse with the victim, who was aged 13 to 14 at the time. When the victim became pregnant, the offender told her to blame the pregnancy on a school friend. Because of a delay in reporting, the maximum penalty applicable was 20 years. The offender was sentenced to four years’ imprisonment on the relevant charge.
[28][2015] VCC 1915.
In Director of Public Prosecutions v EK,[29] the offender was charged with two counts of incest. One was a representative charge, involving intercourse alleged to have occurred twice per week over eight and a half years, when the complainant was between 13 and 21 years old. The offender — who was aged 79 at the time of sentence and in poor health — received three years for the offending on charge 1. Count 2 was a charge of incest which resulted in pregnancy. The victim later gave birth. The offender received a sentence of one year on that charge. The plea was entered on the day of committal, and counsel for the offender conceded that there was no evidence of remorse.
[29]Unreported, County Court of Victoria, Judge Lacava, 23 August 2013.
Counsel for CD pointed to the fact that, in the period 1997–2013, there had been some 11 appellate decisions concerning sentences for offences of incest which had resulted in the victim becoming pregnant. In four cases, the incest charge attracted a sentence of four years; in seven cases, a sentence of five years; in two cases, a sentence of six years; and in only one case, a sentence of seven years. Those figures demonstrated, so it was said, that a sentence of four years for incest where pregnancy resulted was not uncommon. It followed that the sentence of three years and six months in the present case was not wholly outside the range, particularly when regard was had to the matters which the sentencing judge found in mitigation of sentence.
Counsel for CD drew attention to the fact that charge 1 involved only a single act of penetration. It was not a representative count. Further, there were the following mitigating factors, as found by the judge:
·the guilty pleas had been entered at the earliest opportunity;
·CD had displayed genuine remorse;
·the offending occurred in the context of CD suffering from depression and post-traumatic stress disorder;
·he fell at the lower end of the autism spectrum;
·he had no prior convictions; and
·his prospects of rehabilitation were good.
When allowance was made for these factors, it was submitted, it could be seen that the sentence fell within a reasonable exercise of the sentencing discretion.
The Crown conceded that CD was able to pray in aid a number of mitigating factors but maintained that his mental state at the relevant time was not such as to lead to a significant diminution in moral culpability.
Conclusion as to ground 1
Society, the legislature and the courts are at one regarding the objective seriousness of sexual offending against children, and of incest in particular. Reflecting community views, courts have condemned in the strongest terms sexual offending against children by those responsible for their welfare. In Ryan v The Queen,[30] Kirby J said:
Courts must uphold the law which treats sexual offences against children and young persons as extremely serious crimes, particularly where (as is often the case) such offences involve breaches of trust and responsibility on the part of those who had such young persons in their care.[31]
[30](2001) 206 CLR 267 (‘Ryan’).
[31]Ibid 302 [117].
In 2012, the Sentencing Advisory Council published a paper entitled ‘Community Attitudes to Offence Seriousness’.[32] One of the key findings was that sexual offences against young children were viewed by the community as among the ‘most serious’.[33] The report found that the age of the victim, the relationship of trust, the physical aspects of the offending and the broad harm done to child victims of sexual offences were relevant factors which underpinned the seriousness of such offending.[34]
[32]Sentencing Advisory Council, ‘Community Attitudes to Offence Seriousness’, (Sentencing Advisory Council, 4 May 2012).
[33]Ibid 109.
[34]Ibid.
The assertion that the conduct was not violent
We must at this point address CD’s submission that “there was no violence accompanying the offence” and that this constituted a mitigatory circumstance. Arguments of this kind are often advanced in pleas in mitigation for such offending. They must be emphatically rejected, as must the associated implication that no harm was really done to the victim.
Such arguments rest on a serious misconception about the nature of sexual abuse of a child. The crime of incest involves sexual penetration of a child which is, by its very nature, an act of violence. The Sentencing Advisory Council made this point strongly in its recent report on Sentencing of Offenders for Sexual Penetration with a Child under 12:
[I]t is concerning that the courts do not sufficiently recognise, or articulate, the inherent violence involved in the sexual penetration of a young child, regardless of whether such acts are accompanied by additional non-sexual violence.[35]
…
This characterisation of ‘violence’ as encompassing only non-sexual violence has the consequence of diminishing the equally destructive and terrifying violence inherent in sexual offending against children, which more often takes the form of physical or emotional coercion, or the simple act of being overpowered. It can also have the effect of rendering invisible and irrelevant the extreme physical pain inherent in the act of an adult forcibly penetrating the genitals and anus of a child. Many of the sexual penetration cases simply did not mention, in the relevant description of the offending the terror and/or extreme physical pain that objectively would have been caused by the offence. The reason for this is unclear, but it has the effect of diminishing harm.[36]
[35]Sentencing Advisory Council, Sentencing of Offenders: Sexual Penetration with a Child Under 12, Report (10 June 2016) 63.
[36]Ibid 23.
Moreover, as this Court explained in Clarkson v The Queen,[37] the absolute prohibition on sexual activity with a child is ‘founded on a presumption of harm’. The significance of the violence and harm which such conduct entails cannot be overstated.
[37](2011) 32 VR 361, 364 [3].
Was the sentence on charge 1 within the permissible range?
The question for decision under this ground was whether, in light of the mitigating factors that CD could call in aid, the sentence on charge 1 was within the permissible range open to the sentencing judge.
Section 5(2)(b) of the Sentencing Act 1991 requires judges to have regard to current sentencing practice in determining the appropriate sentence to be imposed in a particular case. Comparable cases within the same category of seriousness as the case at hand will generally ‘provide an important, though limited, guide to the range of sentences reasonably open to the sentencing judge.’[38]
[38]Hasan v The Queen (2010) 31 VR 28, 41 [55], citing Hudson v The Queen (2010) 30 VR 610.
As we have already mentioned, it is the responsibility of the parties to draw to the attention of the sentencing judge cases and statistics relevant to the determination of current sentencing practice. In the case of the prosecutor, the provision of such materials is an important part of the Crown’s duty to assist the sentencing court. So much is affirmed by the ‘Director’s Policy: The Crown’s Role on Plea and Sentence Hearings’,[39] which states:
The prosecutor has a duty to assist the court by identifying relevant sentencing statistics and comparable cases. The prosecutor must be ready to provide this assistance on every plea.[40]
[39]Director of Public Prosecutions, ‘Director’s Policy: The Crown’s Role on Plea and Sentence Hearings’ (Director of Public Prosecutions, Policy, 13 April 2015)
[40]Ibid 10 [59].
During the plea in the present case, defence counsel drew attention to one decision, that of CJA,[41] referred to in para 34 above. As has been seen, in that case the sentence for the offence of incest causing pregnancy was three years’ imprisonment, the lowest of any of the sentences for offending of that kind considered by the Court of Appeal. Surprisingly, the prosecutor did not refer the judge to any comparable cases.
[41][2013] VSCA 18.
On the hearing of the appeal, by contrast, the Director drew attention to a large number of decisions which were said to provide guidance for the purposes of determining the present question. In the end, however, it was the decisions to which CD’s counsel drew our attention (in particular, BGJ and RSJ) which persuaded us that the sentence on charge 1, though extremely lenient, was not wholly outside the permissible range. Ground 1 therefore failed.
But for the constraints of current sentencing practice, the objective seriousness of the conduct constituting charge 1 demanded a considerably longer sentence than three years and six months, even allowing for the factors in mitigation. CD’s conduct was opportunistic and abhorrent. His morally repugnant conduct has had lasting consequences for the victim and her family. We return to this issue below.[42]
[42][132] below.
Ground 2
The Director did not challenge the individual sentences on charges 2, 3 or 4, but submitted that the orders for cumulation on those charges had resulted in a total effective sentence which was manifestly inadequate.
Charge 2 involved the sexual penetration of the second victim, J, who was additionally vulnerable because of her mild intellectual disability. Although only nine months of the three year sentence was cumulated, the evidence upon which the charge was based came from admissions made by CD in his police interview. The fact that the case rested upon his admissions required some additional leniency.[43] His Honour recognised that some mitigation of the sentence was necessary in the circumstances. For that reason, the Director conceded that the individual sentence of three years was within range, though he suggested it was toward the bottom of the range available.
[43]Ryan (2001) 206 CLR 267, 272 (McHugh J), 295–6 (Kirby J); R v Ellis (1986) 6 NSWLR 603, 604; R v Brazel (2005) 153 A Crim R 152, 159 [21]; R v Doran [2005] VSCA 271 [14]; R v CLP [2008] VSCA 113 [22]; DPP v CPD (2009) 22 VR 533, 542 [35] (‘CPD’).
On charge 3, CD was sentenced to 18 months’ imprisonment, of which one third was cumulated. Counsel for CD submitted that this was the least serious of the charges.
As noted earlier, charge 4 was a charge of sexual penetration, not of incest, because the Director accepted that CD could not be shown to have been in a de facto relationship with P at the relevant time. Whether the facts required that conclusion would now depend upon a consideration of the relationship between CD and P’s children at the time, as discussed in Sutton.[44] Given that K could not be proved to have been under 14, this offence of sexual penetration carried a maximum penalty of 10 years.[45] Of the sentence of three years, nine months was cumulated.
[44][2015] VSCA 251 [36]-[41].
[45]See Crimes Act s 45(2)(c).
With respect to charges 3 and 4, CD was to be treated as a ‘serious sexual offender’ under Part 2A of the Sentencing Act. The Director submitted that the orders for cumulation — of six months on charge 3 and nine months on charge 4 — were inadequate in light of the presumption as to cumulation under s 6E and the nature of the acts in question.
In R H McL v The Queen,[46] McHugh, Gummow and Hayne JJ cautioned judges not to compress sentences where the accused person was a ‘serious sexual offender’ within the meaning of s 16(3A) of the Sentencing Act. They observed that the scope for applying the totality principle must be more limited than in cases not falling within that section. In Gordon v The Queen,[47] Redlich JA further observed:
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 the 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.[48]
[46](2000) 203 CLR 452 (‘R H McL’).
[47][2013] VSCA 343.
[48]Ibid [74].
While R H McL constrains the application of the principle of totality where the serious offender provisions apply, totality remains an important consideration in sentencing. For similar reasons to those given with respect to ground 1, current sentencing practice led us to conclude that the orders for cumulation, while very lenient, were not wholly outside the permissible range and did not produce a manifestly inadequate total effective sentence.
For these reasons ground 2 failed, and the appeal was therefore dismissed.
B. SHOULD CSP FOR INCEST BE UPLIFTED?
Overview
The Director submitted that this was an appropriate case for the Court to provide guidance as to the correct and consistent application of sentencing principles for the offence of incest. The Director submitted that, if the Court concluded that the sentence of three years and six months on the charge of incest resulting in pregnancy was within the permissible range, that would be strongly indicative of the fact that existing sentencing standards were inadequate. He submitted that sentencing practice did not reflect the objective gravity of the offence of incest, at least for offences of mid-range seriousness, and invited the Court to state that current sentencing practice for this category should gradually be uplifted.
We would uphold that submission. There is obviously a question as to the adequacy of current sentencing practice. So much is evident from our conclusion that the individual sentence of three years and six months, and the total effective sentence of five years and six months, were within the available range as indicated by current sentencing practices for comparable offending. The appeal has provided an informed context in which to address the question raised by the Director.
That current sentencing practices are at such low levels clearly demonstrates that the principles of sentencing are not being consistently and appropriately applied. Put simply, current sentencing does not reflect the objective gravity of such offending or the moral culpability of the offender. There is a lack of differentiation between the different categories of seriousness, and that has resulted in an unworkably narrow band within which judges are able to sentence for offending of this nature.
Is this an appropriate case to ventilate the question of CSP?
The Director drew upon the type of circumstances which enable the Court to examine the adequacy of CSP for an offence, as set out by Redlich JA in Ashdown v The Queen,[49] and submitted that sentences for individual incest offences fail to reflect the objective seriousness of the conduct, its consequences for the victim or the guidance provided by the maximum penalty. Maxwell P in Ashdown listed a series of decisions of this Court which had pointed to the apparent conflict between current sentencing for an offence and the applicable maximum penalty.[50] As the focus sharpened during argument on the state of current sentencing for incest, further questions emerged as to whether there was inconsistency in sentences for offences of mid-range seriousness, and as to whether the current band of sentences was not only too low but too narrow.
[49](2011) 37 VR 341, 403 [180] (citations omitted) (‘Ashdown’).
[50]Ibid 351-356 [30]–[39].
The Law Institute and the Criminal Bar Association appeared jointly — at the Court’s invitation — as amicus curiae, to provide assistance to the Court on the question of the adequacy of current sentencing practice. Their written submission argued that, as the adequacy of CSP for the offence of incest was not a matter requiring determination in order to dispose of the Director’s appeal, the Court should not address the issue.[51]
[51]Ibid 396 [154] (Ashley JA).
At the beginning of their oral submissions, however, counsel for LIV and CBA informed the Court that there had been a significant change of position. Their clients accepted, we were told, that it was a proper function of an appellate court to ensure that sentencing principles were correctly applied and that sentencing standards were appropriate. They also accepted — as did the parties to the appeal — that in discharging those functions, the appellate court could properly express a view as to the adequacy of sentencing standards, even where such an opinion did not affect the sentence of the offender before the court. At the same time, they argued that the categories of the offence relied upon by the Director did not lend themselves to the provision of any useful guidance.
This revised position of the LIV and the CBA accorded with established authority in this and other appellate courts, as discussed in Ashdown. That is, where there is an appeal against sentence — whether on the ground of manifest excess (prisoner’s appeal) or manifest inadequacy (Crown appeal) — even if the substantive appeal is dismissed the appellate court may provide guidance to ensure that sentencing standards adequately reflect the objective seriousness of the offence in question and the moral culpability of the offender. In that context, this Court may give a warning that sentences for an offence should in the future be uplifted.
The ability of this Court to provide guidance as to sentencing standards and, if necessary, to correct CSP for an offence or a sub-category of an offence is not confined to those circumstances in which such a correction will be determinative of the appeal.[52] As already indicated, the ground of appeal in the present case — manifest inadequacy — necessitated an examination of the state of CSP for incest.
[52]See eg Winch v The Queen (2010) 27 VR 658 (‘Winch’); Hogarth v The Queen (2012) 37 VR 658 (‘Hogarth’); Harrison v The Queen (2015) 74 MVR 58 (‘Harrison’).
Categories of seriousness of incest under consideration
The Director submitted that the Court should address the adequacy of incest sentences for the category, or categories, of incest said to be exemplified by this case. In his written submission, the Director argued that this case represented two distinct categories of incest, namely:
(a)incest with a dependent child, that is, offending by a male adult against a child victim who (at the time) was living with him and was under his care (whether the adult was the natural father of the child or the husband or de facto partner of the child’s mother); and
(b)incest resulting in pregnancy, leading either to a termination of the pregnancy (as here) or to the birth of a child.
As noted already, the LIV and CBA argued that the Director had not identified a distinct category of incest in respect of which the Court could either identify the state of current sentencing or express a view about its adequacy. Their argument was two-fold. The first category — incest with a dependent child — was too broad and the material insufficient to permit any useful guidance to be given; and the second category was too narrow.
In our view, the first category is not unduly broad for this purpose. It is appropriate to focus on cases which are relevantly comparable to the present case, that is, cases involving an offender who, at the time of the offending, had ongoing parental responsibilities towards a dependent child under the age of 18.[53] Such offending has a number of recurrent features: extreme invasion of the victim’s person; exploitation of a vulnerable child; violation of societal norms; long-term and severe victim impact; serious breaches of the trust reposed in the offender by the child and by the spouse/partner; and an undermining of the familial roots of society.[54]
[53]See Sutton [2015] VSCA 251, above at [57].
[54]CPD (2009) 22 VR 533, 546–7 [54]–[56].
These features are, of course, characteristic of incest offences across the range of seriousness. What distinguishes worst case offending from mid-range offending is the nature and extent of the offending conduct, its frequency and duration, and the circumstances in which it occurs, each of which can increase the objective gravity of the offending, the culpability of the offender and the damage to the victim and the victim’s family. In the present case, the pregnancy constitutes an aggravating feature which takes the offending towards the top of mid-range seriousness.
We turn to consider whether guidance is required with respect to sentencing standards for this category of incest, and whether CSP for this category should be uplifted.
Current sentencing practices
In the late 1980s, prior to the increase in the maximum penalty, the Victorian Court of Criminal Appeal in R v Kaye[55] allowed a prisoner’s appeal against a sentence of six years’ imprisonment on one count of incest. The complainant was his 14 year old stepdaughter. The prisoner had forcibly penetrated her, despite her screams and struggles.
[55]Unreported, Supreme Court of Victoria, Court of Criminal Appeal, Young CJ, Murphy and Fullagar JJ, 30 September 1986.
In determining that a sentence of four and a half years was more appropriate, Young CJ (with whom Murphy and Fullagar J agreed), said:
The other consideration that has caused us very substantial difficulty is that the range of sentences generally imposed for crimes of incest is lower than the sentence which the learned Judge passed on this applicant. Indeed, the average sentence is probably somewhere of the order of three years' imprisonment.
The crime of incest is a very serious one and one that greatly disturbs the public. In these days many members of the public would I think take the view that the crime ought to be punished more severely than has recently come to be the case.
His Honour then went on to say:
I am very reluctant indeed to interfere with a sentence passed by an experienced trial Judge, and the observations I have made about the level of sentencing for incest should not be overlooked but, nevertheless, for the reasons I have endeavoured to express in this case, I think that the sentence of six years with a minimum of four years does warrant the interference of this Court. I would set it aside and substitute for it a sentence of four and a half years with a minimum term of three years before eligibility for parole.
Fullagar J agreed, and expressed his own concern as to the low sentencing practice for incest offences:
Like the other members of the Bench, I have felt some difficulty about this case. Further, I have been led to wonder whether the penalties lately awarded for this offence are not of too low a level but, in my view, even if that were so, this is not the kind of case in which an appellate court should attempt to give effect to such a view. In the end, I agree with the learned Chief Justice that the sentence did not properly reflect all the mitigating factors to which he has referred. I agree with the orders proposed by the Chief Justice for the reasons given by him.
Although always subject to existing sentencing practice, courts have consistently taken the view that such offending must be met with harsh sentences. The maximum penalty of 25 years is the highest in the criminal calendar, short of life imprisonment. As has been stated repeatedly, the fixing of such a high maximum reflects the community’s abhorrence of sexual crimes against children.
In 1992, Crockett J said in relation to sentencing for sexual abuse of a child:
The undoubted fact that in recent times there has been evidence of a rising tide of public indignation that such crimes have been committed and can be seen to be anything but infrequent occurrences. The courts, and particularly this court is, I consider, bound to respond to the legitimate community concern with the response placing emphasis on the need in particular to have sentences give effect to both specific and general deterrence.[56]
[56]R v Wayland (Unreported, Supreme Court of Victoria, Court of Criminal Appeal, Crockett, Southwell and Hampel JJ, 14 September 1992) 4.
In 1993, Marks J in R v Sposito[57] said:
A society which fails to protect its children from sexual abuse by adults, particularly by those entrusted with their care is degenerate. The offence of incest is particularly erosive of human relations and casts doubts upon the assumption that parents are the natural trustees of the welfare of their children. It ought to be unnecessary to recount the morbid features of incest, the most prominent of which include the exploitation by the stronger will of the adult of the weaker will of the child, the physical and psychological subordination of the child to the perverted indulgences of the adult, the gross breach of trust placed in the offender by the victim and the community and the irreparable fundamental damage to the victim.
[57]Unreported, Supreme Court of Victoria, Court of Criminal Appeal, Marks, Hampel and McDonald JJ, 8 June 1993.
In R v Wakime,[58] Winneke P recognised the importance that community expectations play in the sentencing of offenders for incest:
[A]s this court has repeatedly pointed out, incest is an abhorrent crime. His Honour correctly recognised the crime's capacity to erode decent family life and the trust and confidence of its victims. This court has said that it ought not to turn its back on the tide of community anger and resentment towards crimes which involve the despoliation of children. As the court has indicated in the past, if fathers wish to claim guardianship rights over their children, they have an overriding responsibility to assume their obligations to protect, inter alia, the moral welfare of those children. Incest simply undermines the role of guardianship and destroys the entire concept of family unity, and that is why this court in particular is continually reminding itself and other courts that incest ought to attract condign punishment. His Honour correctly recognised, in passing his sentence, the odious nature of the offences, and I must say that I agree with him.[59]
[58][1997] 1 VR 242 (‘Wakime’).
[59]Ibid 244.
Then in R v WEF,[60] Winneke P said:
This Court has frequently said that those who engage in sexually abusing young persons who are in their trust can expect to receive condign punishment. Such conduct is not only destructive of family values and all that they stand for but it is now well known that it has the capacity to destroy for its young victims their chances of enjoying a natural and healthy lifestyle.[61]
[60][1998] 2 VR 385.
[61]Ibid 387.
Five years later, in Director of Public Prosecutions v G,[62] Winneke P again emphasised the need for offences of incest to be severely punished:
This court has, in recent years, had cause to remark on the prevalence of the crime of incest in the community, its capacity to erode decency of family life and the trust and confidence of its young victims. It is a crime which obliges the court to punish it with principles of general deterrence, denunciation and protection of young persons at the forefront of sentencing purposes … The insidious effects of the crime of incest upon its victims should be recognised by those who are privileged to exercise parental care and the community is entitled to expect that those who exercise such care will not abuse the trust and confidence reposed in them by those in their charge. Parents — and those in loco parentis — who fail to exercise the restraint which the community expects of them, and who give in to their own sexual gratification, must expect to be severely and appropriately punished.[63]
[62][2002] VSCA 6.
[63]Ibid [9]–[10] (citations omitted).
In Director of Public Prosecutions v VH,[64] Callaway JA (with whom Buchanan and Eames JJA agreed) said that ‘the sexual abuse of children by persons in a position of trust is intolerable.’[65] Ormiston JA in R v RND[66] recognised, citing Wakime, that offences of incest ‘ordinarily ought to attract condign punishment.’[67]
[64](2004) 10 VR 234.
[65]Ibid 237–8 [11]. See also DPP v DAK[2004] VSCA 175 [33]–[35] (Vincent JA).
[66][2002] VSCA 192.
[67]Ibid [1] (citation omitted).
Earlier in these reasons, we rejected CD’s submission that there was no violence associated with his offending. Offences of this type, as we have said, are inherently violent and do long-term harm to the victim. It appears, however, that rape offences have tended to attract higher sentences than offences of incest or sexual penetration of a minor. Decisions on rape sentences typically focus on the overt violence, injuries and use of weapons which such offending commonly involves. It seems likely that the pattern of lower sentences for incest and sexual penetration of a child is to be explained by the absence of such overt features. As a result, the physical subordination of the victim in such cases is wrongly minimised or ignored.
The maximum penalty
The Director submits that CSP for incest cannot be reconciled with the maximum penalty of 25 years’ imprisonment fixed by Parliament, which recognises the gravity of the offence and the grave consequences for victims.
As the Sentencing Advisory Council noted in its recent Report on Sentencing of Offenders for Sexual Penetration with a Child under 12,[68] this Court in two 2009 decisions drew attention to the disparity between the maximum penalties and the sentences handed down for sexual penetration offences against children.[69] The Court at that time commented that ‘a real question arises as to the adequacy of current sentencing‘ for such offences, and said that this was ‘a matter of the first importance to the administration of criminal justice in this State’.[70] The Court invited the Director to address the issue in a fully argued case.
[68]See above n 35, 26.
[69]CPD (2009) 22 VR 533, 536 [8]–[9]; DPP v DDJ (2009) 22 VR 444, 461 [72] (‘DDJ’).
[70]DDJ (2009) 22 VR 444, 461 [72].
Regrettably, it has taken almost seven years for that invitation to be taken up, despite this Court’s demonstrated willingness to examine the adequacy of current sentencing for other offences.[71] Even then, the Director only took up the general issue in the present appeal after the Court had pointed out that consideration of the ground of manifest inadequacy would necessarily involve a careful review of current sentencing.
[71]See eg, Winch (2010) 27 VR 658; Hogarth (2012) 37 VR 658; Harrison (2015) 74 MVR 58; Stephens v The Queen [2016] VSCA 121.
As explained in Markarian v The Queen,[72] the maximum penalty invites a comparison between the worst case and the case before the court and, balanced with all other relevant facts, provides a sentencing yardstick.[73] As this Court further stated in Hogarth,[74] ‘there must be appropriate relativities between individual sentences and the maximum’ and ‘it is to be expected that there would be a spread of cases across the statistical range.’[75]
[72](2005) 228 CLR 357.
[73]Ibid 372-3 [30]–[31]; see also R v AB (No 2) (2008) 18 VR 391, 405–6 [48]–[51].
[74](2012) 37 VR 658.
[75]Ibid 674 [60]–[61] (citations omitted).
According to the Director, the sentences imposed for incest show that the maximum has not been used as a yardstick in the way Parliament intends. There are not ‘appropriate relativities’ between individual sentences and the maximum, nor is there a ‘spread of cases’ across the statistical range.
The Director pointed to the development of the crime of incest, and the prescribed maximum, as showing that Parliament has always viewed the crime of incest as a particularly serious criminal offence. The Director summarised that development as follows:
As at 12 February 1929
section 42, Crimes Act 1928 – carnal knowledge of a girl under age of 10 years – suffer death;
section 48(1), Crimes Act 1928 – carnal knowledge of woman or girl of or above age of 10 years such woman or girl being his daughter or other lineal descendant or step-daughter – life imprisonment;
As at 30 September 1958
section 46, Crimes Act 1958 – carnal knowledge of girl under age of 10 years – 20 years’ imprisonment;
section 52, Crimes Act 1958 – carnal knowledge of woman or girl of or above age of 10 years such woman or girl being his daughter or other lineal descendant or step-daughter – 20 years’ imprisonment;
As at 22 April 1992
section 44(1)&(2), Crimes Act 1958 – incest – 20 years’ imprisonment;
As at 1 September 1997
section 44(1)&(2), Crimes Act 1958 – incest – 25years’ imprisonment.
The present structure of the offence provision has been in place since 1992.[76] In 1997 the maximum penalty was increased from 20 years to 25 years.[77] The change in the maximum was said to be reflective of the prevailing view of society with respect to the seriousness which should be attached to sexual offending against children.[78] In the second reading speech, the Attorney-General noted that:
The offences of incest, sexual penetration of a child under 10 years and maintaining a sexual relationship with a child under 16 years will all now have effective maximum terms of 25 years’ imprisonment, placing them on the same footing as rape offences. The government believes that sexual crimes against children are extremely serious and when they occur have the potential to ruin young lives. This view has been repeatedly expressed by members of the public, victims’ groups and other specialist bodies, and is now being acted upon.[79]
[76]Crimes (Sexual Offences) Act 1991.
[77]Sentencing and Other Acts (Amendment) Act1997.
[78]Victoria, Parliamentary Debates, Legislative Assembly, 24 April 1997, 872 (Jan Wade, Attorney-General).
[79]Ibid.
Sentencing statistics and comparable cases
We turn to a consideration of the information made available by the Sentencing Advisory Council and the comparable cases to which the Court was directed during the appeal. We are, of course, mindful of the need to ensure that our use of such material is accompanied by a consideration of the unifying principles revealed by such information.[80]
[80]Wong v The Queen (2001) 207 CLR 584, 606 [59] (‘Wong’).
Despite the increase in the maximum penalty in 1997, there has been no significant shift in the sentences imposed for incest. The Council’s first Sentencing Snapshot for incest, published in February 2008, covered the period from 2002-03 to 2006-07.[81] In that period, 95 per cent of offenders were given a custodial sentence for incest. In cases where incest was the principal offence, imprisonment terms ranged from five months to eight years. The average varied between three years and six months and four years and two months.
[81]Sentencing Advisory Council, ‘Sentencing Trends for Incest in the Higher Courts of Victoria 2002-03 to 2006-07’ (Sentencing Snapshot, No 43, Sentencing Advisory Council, 21 February 2008).
For the purposes of this appeal, the Council provided the Court and the parties with equivalent information for the period 2010–11 to 2014–15.[82] Once again, 95 per cent of offenders were given an immediate custodial sentence. In cases where incest was the principal offence, prison terms ranged from two years and six months to seven years and six months.[83] The average varied between four years and four months four years and ten months.[84] Approximately one quarter of offenders received a sentence of three to four years; another quarter received a sentence of four to five years; and another quarter five to six years.[85] One offender received less than three years, and 24 offenders received sentences of over six years.[86]
[82]This information has now been published: Sentencing Advisory Council, ‘Sentencing Trends for Incest in the Higher Courts of Victoria 2010-11 and 2014-15’ (Sentencing Snapshot, No 192, Sentencing Advisory Council, 28 June 2016).
[83]Ibid 2.
[84]Ibid 3.
[85]Ibid 2.
[86]Ibid.
At the Court’s request, the Council also provided a summary of sentences imposed for charges of incest with a child victim[87] between July 2010 and June 2015 (whether or not incest was the principal charge). All 108 charges attracted a term of imprisonment. The imprisonment terms ranged from two years to seven years, with the median being three years and six months. The median, it was noted, went from three years in 2010–11 to three years and six months in 2013–14 and 2014–15. The summary showed that, in 26 per cent of cases, the sentence was between three and three and a half years and, in 19 per cent of cases, between four and four and a half years.
[87]That is, the child or step-child of the offender or the child of the de facto partner.
The median length of imprisonment in this most recent period was four years and six months. The median is, of course, of very limited utility as a sentencing statistic, for the reasons given in Director of Public Prosecutions v Walters:[88]
[T]he median sentence is not a measure of offence seriousness, and has never been so regarded for the purposes of sentencing. In other words, the median does not necessarily fall at a known point on the spectrum of culpability; where it falls will be determined only by the number of sentences in the series. As has already been explained, the median is an accidental or contingent statistic, wholly dependent on the particular composition of the statistical series for the specified period. Thus, the median sentence will be higher, or lower, depending on whether the preponderance of offending in the particular period was more or less serious.[89]
[88][2015] VSCA 303.
[89]Ibid [30].
According to the Director’s submission, the guidance provided by CSP for the relevant category of incest ‘badly conflicts with the guidance provided by the statutory maximum.’ The explanation, the Director said, was that relevant sentencing principles had not been correctly applied, resulting in a failure to correctly characterise the objective seriousness of the offence and the moral culpability of the offending parent.
The ‘downward pressure’ of sentences for worst case offending
The Director drew attention to the sentences imposed for incest in cases categorised as ‘worst case offending’. His submission was that these sentences had set an artificial ceiling. That is, because of the need for differentiation according to offence seriousness, the sentences imposed in the worst cases inevitably put downward pressure on sentences for mid-category offending.
The Director pointed out that the individual incest sentences imposed in worst category cases had in general been low — in the range four to seven years[90] — and bore little relation to the maximum penalty. (It was not suggested that any of the individual incest sentences in those cases had been moderated for reasons of totality.) As a consequence, the Director submitted, individual incest sentences in cases of mid-range seriousness had been unnecessarily confined.
[90]See also Reid (a pseudonym) v The Queen (2014) 42 VR 295, 315-320 [95]-[106] (‘Reid’).
The first of the cases to which the Director drew attention was PDI v The Queen.[91] The offending in that case spanned a period of five years, when the victim was aged between 11 and 17 years old. The abuse was persistent and sustained, and included oral, vaginal and anal penetration. The child was instructed to perform ‘depraved and sexually degrading acts’,[92] which persisted despite her protestation and tears. The offender was convicted, after a trial, of 37 counts of incest. He was sentenced to a total effective sentence of 18 years and six months’ imprisonment.
[91](2011) 216 A Crim R 577.
[92]Ibid 594[84].
On his appeal against sentence, however, the Crown conceded that the total effective sentence was manifestly excessive, being ‘quite inconsistent with current sentencing practice for multiple offences of incest, even allowing for the fact that this matter was contested and the appalling features of the … wrongdoing.’[93] Affirming the sentencing judge’s view that the offending ‘fell within the worst category’, this Court resentenced the offender to a total effective sentence of 15 years’ imprisonment. Relevantly for present purposes, only two of the 37 incest charges attracted an eight year sentence. The majority received sentences of seven years.
[93]Ibid 593-4 [83].
In Cotton v The Queen,[94] the offender was convicted following a trial on eight charges of incest, and two of indecent act with a child under 16. The offending extended over the period of a year, where the step-daughter victim was aged 13 to 14 years of age. The offender used force to restrain the victim, which resulted in bleeding and bruising, and threatened to harm her mother if she disclosed the offending to her. The highest individual sentence imposed was seven years, with individual sentences of six years being imposed on the remaining charges, despite the offending being described by the sentencing judge as being ‘regarded as abhorrent by the community’ and by this Court as ‘the worst offending of its kind’.
[94](2015) 45 VR 341.
In Reid,[95] the offender pleaded guilty to 13 charges of incest, 11 of which were representative, one charge of producing child pornography and one charge of committing an indecent act with a 16 or 17 year old child under his care, supervision or authority. This Court noted that he had ‘defiled and victim [and] … violate[d] her in a most despicable fashion’,[96] and described the offending as ‘very serious examples of a serious offence’.
[95](2014) 42 VR 295.
[96]Ibid 309 [79].
The total effective sentence imposed at first instance was 18 years and 8 months’ imprisonment. After a detailed analysis of current sentencing for comparable offending, Priest JA (with whom Maxwell P and Whelan JA agreed) concluded that the sentence was outside the range reasonably open, notwithstanding the seriousness of the offending. The sentence was reduced to 14 years with a non-parole period of 10 years.
In their concurring judgment, Maxwell P and Whelan JA said:
The conclusion that the sentence must … be reduced is a reflection not of any undervaluing of the seriousness of the offending but rather of the fundamental importance of consistency of sentencing. It is precisely because conduct of this kind is so abhorrent – and because it is therefore so difficult to determine an appropriate term of imprisonment — that guidance must be sought from sentences imposed in comparable cases. That consideration necessarily extends to sentences imposed in cases where the offending is even more serious.
…
Contrary to the conclusion reached by the sentencing judge, the total sentence of 18 years and eight months, with a minimum of 14 years and eight months, cannot be reconciled with current sentencing practices. That being so, the requirement of consistency necessitates a reduction.[97]
With reference to the 2009 decisions mentioned earlier, their Honours noted that
This Court has previously questioned whether current sentencing practices for the offence of incest sufficiently take into account the guidance provided by the maximum penalty of 25 years.[98]
[97]Ibid 296-7 [3], [6] (citations omitted) (emphasis added).
[98]Ibid 297 [7].
Director of Public Prosecutions v GJL[99] was a Crown appeal. The offender had been sentenced to a total effective sentence of six years’ imprisonment, with a non-parole period of four years. He had pleaded guilty to 21 charges, which included six charges of incest, three of which were representative counts, and one of attempted incest. The offender, aged 49, was the victim’s grandfather. His granddaughter was three years of age. In the view of this Court, the facts revealed ‘sexual depravity of the highest order, corruption of an infant child and breach of trust by the child’s grandfather’.[100] The three representative charges of incest had attracted sentences of only seven months. The Court allowed the appeal and imposed a total effective sentence of 10 years’ imprisonment. Sentences of five years were fixed on each individual count of incest.
[99](2004) 7 VR 366.
[100]Ibid 368 [10].
Director of Public Prosecutions v OJA[101] was also a Crown appeal. The case involved very serious sexual predation on children of tender years, acts of sexual depravity of an almost unimaginable kind (which included the use of sex aids) and the filming of some of the abuse. At the time of offending, OJA was between 43 and 49 years of age. He pleaded guilty to 43 separate charges, which relevantly included nine counts of incest and 15 counts of taking part in an act of sexual penetration with a child under 16 years of age. He was sentenced to a total effective sentence of 15 years’ imprisonment, with a non-parole period of 11 years. The individual sentences on each of the nine charges of incest was six years. The Crown appeal was dismissed.
[101](2007) 172 A Crim R 181 (‘OJA’).
In R v Bellerby,[102] the offender pleaded guilty to 15 charges, involving two victims, and was sentenced to a total effective sentence of 15 years’ imprisonment, with a non-parole period of 11 years. There were seven counts of incest (five of them representative), and six others of sexual offending, involving his natural daughter who was aged nine years. The appellant organised group sex sessions which involved himself, the child, her mother, and two of his adult nephews. These sessions were held to have ‘plumbed the depths of depravity’.[103] The seven individual charges of incest attracted sentences of between two and six years. The offender’s appeal against sentence was rejected.
[102][2009] VSCA 59.
[103]Ibid [39].
In DP v The Queen,[104] the appellant had pleaded guilty to 10 counts of sexual offending, including seven counts of incest. All but one of the incest counts were said to be representative counts. The offending spanned a 10 year period, commencing when the victim was eight years old. The appellant had been sentenced to a total effective term of imprisonment of 12 years, with a non-parole period of 10 years. The highest individual sentence for incest was four years. His appeal was dismissed.
[104][2011] VSCA 1.
FD v The Queen[105] was a case with a number of extremely serious features, including the restraint of very young children by handcuffs during sexual intercourse. The appellant pleaded guilty to eight counts of incest, one count of attempted incest and two counts of false imprisonment. The victims were his two biological daughters. The first was aged between seven and nine years when the offending occurred, the second between six and seven years.
[105][2011] VSCA 8 (‘FD’).
The sentencing judge imposed a total effective sentence of 16 years’ imprisonment with a non-parole period of 13 years. On the offender’s appeal, this Court reviewed sentencing decisions in ‘cases involving the extended sexual abuse of young children by their fathers’, and concluded that the sentences imposed were ‘significantly out of kilter with current sentencing practice in this State.’[106] Allowing the appeal, the Court made orders which resulted in a total effective sentence of 12 years’ imprisonment. A non-parole period of nine years was fixed. On the individual incest counts, the sentences ranged from four years to eight years.
[106]Ibid [22].
LDF v The Queen[107] was a case where there were three victims, two of whom were the applicant’s natural daughters. There were eight counts, including five of incest (two being representative). The applicant engaged in multiple sexual acts, including digital, oral and penile penetration, with his two daughters and their friend over a period of 18 years. On appeal, the Crown conceded that there had been sentencing error at first instance, which had resulted in irrelevant material being taken into account. In resentencing, this Court agreed with the sentencing judge’s statement that these were ‘extremely serious crimes [involving] a profound breach of trust and parental responsibility.’[108] Drawing on what had been said in FD about current sentencing, the Court made orders which produced a total effective sentence of 12 years’ imprisonment, upon which a non-parole period of nine years was fixed. On the individual incest counts, the Court fixed sentences ranging between three years and six years.
[107][2011] VSCA 237.
[108]Ibid [11].
In IRJ v The Queen,[109] the appellant had pleaded guilty to seven charges of committing an indecent act with or in the presence of a child under 16 and four charges of incest, as well as three child pornography charges. The victim was his step-daughter, aged eight. The sentencing court fixed sentences between four years and six months and five years and six months on each of the individual charges of incest. The total effective sentence was 11 years, with a non-parole period of nine years. The appeal was dismissed.
[109][2011] VSCA 376.
Director of Public Prosecutions v Jones (a pseudonym)[110] was a Crown appeal. By majority, the Court allowed the appeal and substituted a total effective sentence of 16 years’ imprisonment, with a non-parole period of 12 years, for a sentence of 13 years with a non-parole period of 10 years. There were three victims, being the offender’s de facto and her daughter and son. With respect to the daughter, there were two representative charges of incest; one of producing child pornography; two representative charges of indecent act with a 16 or 17 year old child under care, supervision or authority; two charges of procuring an act of sexual penetration with a 16 or 17 year old child under care, supervision or authority; and one charge of intentionally causing serious injury. The offending was described as ‘extremely grave’, involving ‘depravity of an almost unimaginable magnitude’.[111] The incest offences had occurred almost every day for over a year, commencing when the step-daughter was 16 or 17. On the two representative counts of incest, sentences of four years and two years and six months were unaltered on appeal.
[110](2013) 40 VR 267.
[111]Ibid 277 [27].
The ‘unique worst category case’ of RSJ[112] involved the highest total effective sentence imposed for incest and related offences — 22 years and five months’ imprisonment, with a non-parole period of 18 years. In that case, none of the individual incest charges attracted a sentence higher than six years’ imprisonment — that being the base sentence for one of the representative charges. The majority of individual sentences ranged between three and five years’ imprisonment. The Director submitted that these individual sentences bore ‘little if any apparent relationship’ to the maximum penalty of 25 years.
[112][2012] VSCA 148 [2]; see [37] above.
The LIV and CBA submitted that reliance on worst category sentences was not relevant to a consideration of CSP for offending of mid-range seriousness. We do not agree. First, as the Director made clear, the purpose of referring to the sentences for incest in cases of ‘worst category offending’ was to demonstrate that they impose downward pressure on sentences for mid-range offences. Second, these cases show that there is no adequate differentiation in sentencing between mid-category and worst category offending.
It is well recognised that existing sentencing practice does not constrain a judge from imposing a higher or lower sentence than the prevailing practice. The highest case does not create a ceiling, nor the lowest a floor, beyond which sentences cannot go.[113] Nettle JA in OJA approached the role of CSP in sentencing for sex offences in this way:
[I]t is of the nature of sexual offences that some instances of an offence are more serious than others. Since that is so, there is a need for at least some degree of comparison. The requirement to have regard to “current sentencing practices” is properly to be understood in that context and the notions of manifest excessiveness and manifest inadequacy are similarly informed.
Secondly, the need to have regard to current sentencing practices does not mean that the measures of manifest excessiveness and manifest inadequacy are capped and collared by the highest and lowest sentences for similar offences hitherto imposed. In fact, as in theory, each case is different and so it is always possible that a sentence may properly rise above or fall below the greatest and lowest sentences previously imposed. At the same time, however, the nature of criminal conduct is such that there is not infrequently sufficient similarity between two cases to imply that sentences should be comparable and, if they are not, that something has gone awry.
Thirdly, and importantly, it should not be thought that the statutory requirement to have regard to current sentencing practices forecloses the possibility of an increase or decrease in the level of sentences for particular kinds of offences. Over time, views may change about the length of sentence which should be imposed in particular cases and, when that occurs, the notions of manifest excessiveness and manifest inadequacy will be affected. Accordingly, to say of an individual sentence of six years, or a total effective sentence of 15 years, that it is near as large as any before imposed for offending of this kind, is not necessarily an answer to the question of whether it is manifestly inadequate. One must allow for the possibility that sentences to this point have simply been too low.
Fourthly, in this case the Crown did not argue that the level of sentencing in cases of this kind needs to be increased. The Director’s submissions were pitched at the level that the sentences imposed are manifestly inadequate having regard to current sentencing practices.
Fifthly, in the past, courts have not infrequently observed that offences of the kind committed by OJA represent a gross breach of parental trust that is likely to have a profound and lasting effect on the offender’s victims and, therefore, that they warrant stern punishment in order to mark the court’s denunciation of grotesque and degenerate criminal conduct and to provide such specific and general deterrence as may dissuade the offender from re-offending and dissuade other deviates from similar offending.[114]
[113]DDJ (2009) 22 VR 444, 461 [70].
[114]OJA (2007) 172 A Crim R 181, 195-197 [29]-[33] (citations omitted).
At the same time, the statutory requirement to take account of ‘current sentencing practices’ was plainly intended to promote consistency in sentencing. It is hardly surprising that courts — both at first instance and on appeal — pay close attention to this requirement, since consistency is ‘fundamental to the administration of criminal justice’.[115]
[115]Ashdown (2011) 37 VR 341, 406 [191].
In Wong,[116] in a passage subsequently quoted with approval in the joint reasons in Hili v The Queen,[117] Gleeson CJ said that, while discretionary decision-making carried with it the probability of some degree of inconsistency, ‘there are limits beyond which such inconsistency itself constitutes as form of injustice.’[118] As was stated in Hili, consistency means ‘the treatment of like cases alike, and different cases differently.’[119] That is a bedrock principle of fair treatment. Those who fall to be punished by the State are entitled to expect nothing less.
[116](2001) 207 CLR 584, 591 [6].
[117](2010) 242 CLR 520, 535 [47] (‘Hili’).
[118]Wong (2001) 207 CLR 584, 591 [6].
[119](2010) 242 CLR 520, 535-6 [49].
The sentencing information before the Court demonstrates that there is an unworkably — and unjustifiably — narrow band of sentences covering incest offences of different orders of seriousness. As the Director submitted, when incest offences in the worst category receive as little as two or three years’ imprisonment, there are inevitable flow-on effects for sentencing of offences classified as mid-range.
As we have seen, many of the sentences for individual incest offences in the worst category cases, involving extraordinary sexual depravity, were of the same order as sentences imposed for mid-range offences. On a number of occasions, this Court has stated that the objective gravity of the crime of incest is such that, if judges were not constrained by CSP, the sentences imposed would have been inadequate. As this Court showed in Reid, the state of CSP and the proper concern of judges for quantitative consistency in outcome have resulted in sentences grouped in the range from four to seven years, regardless of whether the offending is categorised as worst case or mid-range.
Community values
One of the key concerns of the criminal law is the vindication of the community’s social values. Pre-eminent among those values is the protection of the personal integrity and physical safety of young and/or vulnerable children.[120] Society’s abhorrence of the crime of incest is well-recognised. Yet, as the Director submitted, current sentencing standards for incest are demonstrably inadequate. The sentences imposed devalue the objective gravity of the offence, as informed by the egregious breach of trust and the appalling consequences for victims.
[120]DPP v DJK [2003] VSCA 109; DPP v Toomey [2006] VSCA 90.
When dealing with such cases, courts must have regard to the vindication of the community’s social values. Sentences must be able to be seen as constituting just punishment for the harm caused. And potential offenders must be deterred from the commission of such crimes. If these considerations are not seen to be adequately reflected in the responses of the courts, the individual victim justifiably feels betrayed and devalued, and the criminal justice system fails to achieve its objectives.[121]
[121]DPP v Short [2006] VSCA 120 [42] (Vincent JA).
Importantly, there is now much greater understanding of the trauma and long term harm suffered by children who are sexually abused. As Hoeben CJ at CL said in Franklin v The Queen,[122] sentences imposed for incest must reflect this greater appreciation of the harm.[123]
[122][2013] NSWCCA 122.
[123]Ibid [21].
Conclusion
As we have said, community values have an important role to play in assessments of the objective gravity of a particular offence. Sentencing for incest must reflect society’s denunciation of the sexual abuse of children and the profound harm which it causes. The very high maximum penalty underlines the seriousness with which the offence is regarded.
Our review of sentencing for incest enables us to make a number of general observations about the current state of sentencing. Most sentences for incest with a dependent child under the age of 18 are around three years and six months or four years’ imprisonment. Slightly higher sentences are imposed if the charge is a representative one involving high levels of repetition or victim impact, or if it involves other circumstances of aggravation, such as ejaculation, pregnancy, threats or overt violence. The highest recorded sentence in such circumstances is six years on a guilty plea and seven years following a trial. There is little evidence of any real differential where the victim is very young.
In our view, current sentencing for incest reveals error in principle. The sentencing practice which has developed is not a proportionate response to the objective gravity of the offence, nor does it sufficiently reflect the moral culpability of the offender. Sentences for incest offences of mid-range seriousness must be adjusted upwards. That is a task for sentencing judges and, on appeal, for this Court. The criminal justice system can be — and should be — self-correcting.[124]
[124]Harrison (2015) 74 MVR 58, 77 [89].
Incest is a crime of violence and must be so regarded. General and specific deterrence and denunciation must be given their proper emphasis. The long-term harm done to the victim, now better understood, must be given due weight in the sentencing calculus. Sentences must be commensurate with the seriousness of the breach of parental responsibility involved.
On the current state of sentencing, there is no sufficient differentiation between worst case and mid-range offending. As we have said, sentences for mid-category offending have been constrained by sentences for worst category offending, and the sentencing range for mid-range offences has been inappropriately compressed.
As senior counsel for the Director correctly submitted, it is part of this Court’s overarching responsibility to ensure that sentencing standards are maintained and to provide guidance as to the correct approach to sentencing. To that end, we have concluded that sentencing courts must, by increments, increase the sentences for mid-range incest offences, so that the range of sentences is uplifted and substantially expanded. The maximum penalty provides sentencing courts with ample latitude to fix sentences which properly reflect the degree of criminality involved.
But for the constraints of current sentencing which — as we have said —reflect the requirements of consistency, we would have had no hesitation in concluding that the sentence imposed on CD was manifestly inadequate. On the basis of the principles we have set out, a sentence of the order of seven years’ imprisonment was warranted for charge 2, with the aggravating circumstance of pregnancy requiring a significantly higher sentence again on charge 1.
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