DPP v EB

[2008] VSCA 127

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 372 of 2007

DIRECTOR OF PUBLIC PROSECUTIONS

v

EB

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JUDGES:	BUCHANAN, NETTLE and REDLICH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 July 2008
DATE OF JUDGMENT:	17 July 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 127

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Criminal Law – Sentencing – Appeal by Director of Public Prosecutions – Eight counts of incest – Whether sufficient weight given to general and specific deterrence – Victim was respondent’s natural daughter – Whether intellectual limitations reduced moral culpability – Respondent pleaded guilty at first opportunity – Issues of totality and double jeopardy – Total effective sentence of nine and a half years with a non-parole period of seven years set aside – Total effective sentence of 11 years with a non-parole period of seven years substituted.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J D McArdle QC	Mr S Ward, Acting Solicitor for Public Prosecutions
For the Respondent	Mr O P Holdenson QC with Ms T K Hartnett	Galbally & O’Bryan Lawyers

BUCHANAN JA:

1. I will ask Nettle JA to deliver the first judgment.

NETTLE JA:

1. This is an appeal by the Director of Public Prosecutions against a total effective sentence of nine-and-a-half years' imprisonment, with a non-parole period of seven years, imposed on the respondent on pleading guilty to eight counts of incest committed on his natural daughter in and between 2005 and 2007 when the child was between five and seven years old. 

1. The applicant was born on 8 March 1971 and at the time of offending was between 34 and 35 years of age.  He is of limited intellectual ability.  He struggled at school, although he passed year 9, and he has difficulty reading and comprehending written work.  His father was aggressive in the home and his mother was addicted to alcohol, and he had problems with being bullied and teased at school.  He developed a sexual fetish in his teenage years which led him to stealing ladies' underwear and his only employment has ever been as a supermarket trolley collector.  According to psychological evidence tendered before the judge below, he has a number of concerning psychological problems, amounting to a disturbed psycho-sexual disorder of very concerning intensity, and the paraphilic aspects of his behaviour are symptomatic of his overall psychological state which is seriously inadequate and limited by poor intellect.  He has 15 prior convictions from three court appearances recorded between 25 August 1994 and 19 November 1998, as well as a number of other dispositions in the Children's Court.  They include unlawful assault, being unlawfully on premises, loitering, arson, criminal damage and theft.

1. The victim of the offences was born on 30 May 1999 at a time when the respondent was engaged to and living with the child's mother.  Six or so months following the child's birth, the respondent separated from the child's mother and went to live alone in a rooming house.  Once the child reached the age of about 18 months, the respondent was granted a degree of access.  It began with occasional visits during the day and became more frequent and of longer duration as time went on.  In the years 2005 and 2006, the child stayed with the respondent on most weekends from Friday night to Sunday night, and then, in 2007, did so each weekend until the weekend ending 28 January 2007.  On the last occasion, the respondent returned the child to her mother just after 6 pm in the evening and later that evening the child became upset and complained to her mother that the respondent had been interfering with her sexually.  The matter was reported to the police and, in a subsequent VATE interview, the child told the police that the respondent had been penetrating her vagina with his penis since she was five years old and had last done so the previous Friday evening, 26 January 2007.  She said that it had hurt, and that she had screamed, and that the respondent had punched her in the stomach. 

1. When interviewed by police, the respondent admitted that he had penetrated the child's vagina with his penis and ejaculated inside her on numerous occasions over the previous two years.  He said that he had first done so on the first night that the child stayed with him in 2005 and had done so again each night she stayed with him over the following two years, most recently on the previous Friday and Saturday nights, 26 and 27 January 2007.  He said that she had bled on the first occasion but he claimed that she did not do so on any subsequent occasion.  He also admitted that there had been a number of occasions over the previous two years when he had penetrated her anus with his penis;  and that there had been four occasions over the previous six months when he had made the child fellate him.

1. Counts 1 to 5 were representative counts.  The conduct relied on in support of counts 1 and 2 were the first occasions on which the respondent penetrated the child's vagina (count 1) and anus (count 2), during the period between the child's fifth birthday and 30 September 2005.  Each count was representative of all such penetrations which occurred in that period.  The conduct relied upon in support of counts 3 and 4 were the first occasions on which the respondent penetrated the child's vagina (count 3) and anus (count 4) between 1 October 2005 and 20 January 2007.  Each count was representative of all such penetrations which occurred in that period.  Count 5 represented the four or so offences of oral penetration over the previous five to six months. 

1. Counts 6 and 8 were specific counts of incest directed at the particular acts of vaginal penetration which were admitted to have taken place on the previous Friday and Saturday nights, 26 and 27 January 2007. 

1. Count 7 was a specific count of incest directed at a particular act of anal penetration which was admitted to have been committed on the previous weekend.

1. The judge sentenced the respondent on each of counts 1 to 5 to four years' imprisonment and on each of counts 6, 7 and 8 to 30 months' imprisonment and ordered that one year of each of the sentences imposed on counts 2, 3, 4 and 5 and six months of the sentence imposed on each of counts 6, 7 and 8 be served cumulatively on each other and on the sentence imposed on count 1, thus yielding a total effective sentence of nine years and six months' imprisonment. 

The Director’s contention

1. The Director of Public Prosecutions contends that the individual sentences and the total effective sentence are manifestly inadequate and submits as particulars of that contention that the sentencing judge failed to reflect the gravity of the offences generally and in this particular case;  failed to give sufficient weight to the need for general deterrence and specific deterrence;  gave too much weight to mitigatory considerations;  and gave too little weight to the maximum penalty applicable to the offences, the effect of the offending on the victim and the need to punish an offender to an extent and in a manner which is just in all the circumstances.  Counsel for the Director also referred to current sentencing practices and submitted that the sentences imposed were by comparison manifestly inadequate.  He did not, however, suggest that current sentencing practices are in need of revision.[1] 

   [1]R v Downieand Dandy [1998] 2 VR 517, 520–522; cf R v Lim and Ko [1998] VSCA 54,[10]–[11]; DPP v OJA [2007] 172 A Crim R 181, 196 [32].

The respondent’s contention

1. Counsel for the respondent contended that there are a number of factors which the judge correctly regarded as going in mitigation of penalty and which resulted in a need for a real and not illusory discount on the sentence which would otherwise have been imposed.  They included the respondent's early plea of guilty, his cooperation with the police, what was said to be his depleted psychological condition and resulting incapacity to deny himself the sexual gratification of his offending, his consequent reduced moral culpability, and thus the reduced need for general deterrence and denunciation.  In light of those factors, it was submitted, the judge was right to impose the individual sentences and total effective sentence which he did.  Alternatively, it was said that, even if the individual sentences were inadequate, the total effective sentence was within the range.  In the further alternative it was contended that, even if the Court were of the view that the total effective sentence required some revision, the non-parole period ought not be amended. 

Manifest inadequacy

1. In my view, the individual sentences and thus the total effective sentence, are manifestly inadequate.  To begin with, the maximum sentence for incest with a child under 10 years of age is 25 years' imprisonment and, in this case, the very young age of the victim, coupled with the nature and consequences of her penetration, and the continuation of the offending over a period of two years, mean that the offences were especially bad instances of an abominable crime.  As against that, the largest individual sentence of only four years' imprisonment (or in other words, something less than one sixth of the maximum penalty for the offence) and the total effective sentence of seven years imposed in respect of all counts being (being little more than a third of the maximum penalty applicable to any one count of incest) present as the sort of sentences one might expect to be imposed in a case of incest at the lower end of the range. 

1. It is true, as was submitted on behalf of the respondent, that there were some indications that the respondent suffered from psychological limitations which made it difficult for him to resist the temptation of offending.  As the judge observed, the consultant forensic psychologist, Mr Joblin, was of opinion that the paraphilic episodes of the respondent's behaviour were symbolic of his overall psychological state which was seriously inadequate and limited by poor intellect.  But, as the judge also pointed out, when the respondent was subsequently assessed by another consulting psychologist, Mr Bernard Healey, he was found to have an IQ of 86 points, which placed him outside the borderline of intellectually disabled categories, and that implied that any reduction in moral culpability by reason of intellectual limitations should be very limited. 

1. In my view, the judge was right.  Psycho-sexual dysfunction is not ordinarily to be regarded as something which goes in mitigation of a sexual offender's moral culpability and, even where it may do so, the need for community protection will not permit of much reduction in the sentence to be imposed.[2]  It would have been different if the intellectual incapacity of the respondent had prevented him from knowing that what he was doing was wrong.  But it is plain from Mr Joblin's report that he did know that it was wrong and that he continued to offend because he enjoyed it. 

   [2]The Queen v Ryan (2001) 206 CLR 267, 281 [40]–[56] (McHugh J), 313 [156]–[157] (Hayne J); DPP v OJA [2007] 172 A Crim R 181, 191 [14].

1. Secondly, as the judge said, counts 1 to 5 were representative counts which made it appropriate to impose a higher sentence in relation to those counts than would be the case in relation to an isolated count.  Admittedly, that notion is not without its conceptual difficulties because of the principle that a prisoner is not to be punished for uncharged acts.[3]  But as Batt JA explained in R v SBL,[4] the fact that a count is a representative count serves to preclude it being said in mitigation of penalty that it was but an isolated offence, and, additionally, it enables the offence to be seen in its full circumstantial context.  Thus a representative offence is likely to attract a greater sentence than an isolated offence.[5]

   [3]The Queen v De Simoni (1981) 147 CLR 383, 389; R v Neman and Turnbull [1997] 1 VR 146, 150; cf R v Nobile [2006] VSCA 211, [8]; R v Henderson-Drife [2007] VSCA 211 [15].

   [4][1999] 1 VR 706.

   [5][1999] 1 VR 706, 726 [70]; cf DPP v McMaster [2008] VSCA 102, [54]–[58] (Ashley JA).

1. Thirdly, as the judge observed, the respondent fell to be sentenced on counts 3 to 8 as a serious sexual offender, and hence, in the absence of good reasons to the contrary, the sentences on those counts should have been ordered to be served cumulatively.[6]  Of course, it was also necessary for the judge to bear in mind the principle of totality and thus the need to avoid a crushing sentence.[7]  But even so, there remained a need for a substantial degree of cumulation.  As has been seen, in Mr Joblin's opinion, the respondent had a number of concerning psychological problems including limited intellect, social inadequacy and a psycho-sexual disorder of very concerning intensity.  The risk of re-offending was, therefore, not insignificant, and, as McHugh J put it in R v Ryan,[8] the persistently punitive attitude of the community towards sexually deviant crimes mandates that, even if long sentences do not deter paraphilic offenders or others with similar inclinations, they may at least have the effect of putting them in a place where they cannot harm others for the time being. 

   [6]Sentencing Act 1991, ss 6B(2) and 6E.

   [7]R v Lomax [1998] 1 VR 551, 563; DPP v VH (2004) 10 VR 234, 238 [14]; cf R v Gregory [2000] VSCA 212 [20]; R v Fuller-Cust [2002] VSCA 168 [144]–[146].

   [8](2001) 206 CLR 267, 304 [126]–[128], in diss but not on this point.

1. Counsel for the respondent argued that, inasmuch as each of the eight counts of incest of which the respondent stood convicted involved the commission of the same sort of offence on the same victim, there was a need for a large degree of concurrency.  I reject that submission.  In my view, the repeated nature of the offending over a protracted period added greatly to the totality of the respondent's overall criminality and, subject to the need to avoid a crushing sentence, called for a large measure of cumulation.[9]

   [9]Cf R v GJN [2005] VSCA 183, [17] and [20] and [21].

1. Fourthly, as the judge noted, it was necessary for him to consider the effects of the offences on the victim, and in this case they were grave.  Enough has been said of the child's age and the nature of the respondent's repeated penetration of her to give an idea of the physical and psychological damage which is likely to have been caused.  That was borne out by medical evidence that her genitals were grossly and obviously distorted as a result of the trauma, and by the victim's victim impact statement as to the psychological suffering to which she has been subjected, and which continues to afflict her.

1. Finally, comparison with current sentencing practices confirms that the sentences imposed by the judge did not accord with the particular circumstances of the case.  Over the period 2001 to 2006, even the median custodial sentence for incest ranged between three years and four years' imprisonment, and that included cases in which the offending was not detected until years after the event and the sentences were thus significantly reduced because of changes in the offenders' circumstances in the meantime.[10]  In other cases where the delay was not as great, sentences imposed were much larger, even where the nature and gravity of the offending was not as serious as in this case.  So, in Director of Public Prosecutions v VH,[11] the Court upheld a Crown appeal against a total effective sentence of seven years' imprisonment with a non-parole period of five years, imposed following a plea of guilty to six counts of incest and one of being in possession of child pornography, where the victim was the 13-year-old daughter of the offender.  Despite the limitations imposed by the principle of double jeopardy, the offender was re-sentenced on a representative count of vaginal incest to seven years' imprisonment, to six years' imprisonment on a representative count of anal incest, and to four years' imprisonment on each of two discrete counts of oral penile penetration, yielding a total effective sentence of nine years and a non-parole period of seven years.  In R v GJN,[12] the Court rejected an appeal against individual sentences of seven years' imprisonment imposed on four counts of incest on a child under 10 years of age.  In that case, too, there had been an early plea of guilty and the demonstration of genuine remorse.  In R v Elliott,[13] the Court rejected an appeal against an individual sentence of seven years imposed on a representative count of incest on a male child under 16 years of age.  As appears from the sentencing statistics for the period 2001 to 2006,[14] the highest sentence for incest was 10 years' imprisonment,[15] and, as I have attempted to explain, I consider that the nature and gravity of offending in this case puts it at the higher end of the range. 

   [10]For example, R v Better [2003] VSCA 71; cf DPP v Toomey [2006] VSCA 90 [17]–[24]; and see R v PJB (2007) 17 VR 300 [16]–[18].

   [11](2004) 10 VR 234.

   [12][2005] VSCA 183.

   [13][2005] VSCA 37.

   [14]Victorian Higher Court Sentencing Statistics 2001/2002 to 2005/2006.

   [15]DPP v DH [2003] VSCA 220; see also DPP v OJA [2007] 172 A Crim R 181, 194 where a number of the more serious cases are considered.

1. So to say is not to reflect adversely on the manner in which the judge went about the task of formulating the sentence he imposed.  Indeed, if I may say so with respect, his Honour seems to me to have approached the task with considerable care and specific regard to a number of the relevant considerations.  There is in my view, no identifiable error as such in his Honour's sentencing remarks.  But for the reasons which I have given, I consider that the sentences which his Honour imposed do not accord with the principles to which he referred.  Judged by reference to the range of sentences imposed in comparable cases in recent times, they are so manifestly inadequate as in my view to warrant appellate intervention.[16]

   [16]DPP v Bright (2006) 163 A Crim R 538, 542 [10].

Re-Sentencing

1. Turning then to the question of re-sentencing, the principal sentencing considerations in a case of this kind are denunciation, just punishment protection of the community, victim impact, and, to a lesser extent (because of the respondent's psycho-sexual dysfunction) the requirements of general deterrence.[17]  Against those are to be balanced the mitigatory considerations to which the judge referred, not least the fact that the respondent pleaded guilty, cooperated with police and made full admissions including some of matters which are unlikely otherwise to have been discovered or proved.  He is entitled to a significant discount on sentence in respect of each of those matters.  The issues of remorse and prospects of rehabilitation are more complex.  The psychological evidence suggests that he is sorry for what he has done and the fact and extent of his admissions plainly betoken remorse.  On the other hand, his psycho-sexual condition is such that it might be thought that he is likely to re-offend but, as against that, it seems to me he is unlikely to be placed in a situation where he would have the opportunity to re-offend.  Balancing those considerations against the limitations of totality and double jeopardy as they apply in a Crown appeal against sentence,[18] I would re-sentence the respondent as follows:

   [17]DPP v OJA (2007) 172 A Crim R 181, 196 [33].

   [18]R v Clarke [1996] 2 VR 520, 522(3).

   on count 1, to seven years' imprisonment;

   on count 2, to seven years' imprisonment;

   on count 3, to six years' imprisonment;

   on count 4, to six years' imprisonment;

   on count 5, to five years' imprisonment;

   on count 6, to four years' imprisonment;

   on count 7, to four years' imprisonment;  and

   on count 8, to five years' imprisonment.

   I would further order that one year of each of the sentences imposed on counts 3, 5, 6 and 7 be served cumulatively on each other and on the sentence imposed on count 1, making for a total effective sentence of eleven years' imprisonment.  Bearing in mind, however, what I think to be the limited chance that he will re-offend, the mitigatory considerations which have been urged on his behalf by his counsel, and the principles of double jeopardy as they apply in a Crown appeal, I am persuaded that

the non-parole period should be the same as that determined by the judge, namely, seven years.

BUCHANAN JA:

1. I agree.

REDLICH JA:

1. I too would allow the appeal, substantially for the reasons given by Nettle JA.  I consider that the respondent's sexual fetish and psycho-sexual disorder explained in the report of Mr Joblin, and which both parties accept received particular weight in the sentencing judge's instinctive synthesis, did not call for a reduction in moral culpability or any amelioration in general deterrence.  Nor was the limited intellectual capacity of the respondent of such an order as to warrant any reduction in the sentence which should otherwise have been imposed.  Bearing in mind this Court's over-arching discretion, I would not alter the non-parole period previously fixed and I would re-sentence the respondent as Nettle JA proposes.

BUCHANAN JA:

1. The orders of the Court will be as follows:

   The appeal is allowed.

   The sentences passed below are set aside.  In lieu thereof the respondent is to be imprisoned as follows:

   on count 1, to seven years’ imprisonment
   on count 2, to seven years’ imprisonment
   on count 3, to six years’ imprisonment
   on count 4, to six years’ imprisonment
   on count 5, to five years’ imprisonment
   on count 6, to four years’ imprisonment

   on count 7, to four years’ imprisonment
   on count 8, to five years imprisonment.

   One year of each of the sentences imposed on counts 3, 5, 6 and 7 are to be served cumulatively on each other and on the sentence imposed on count 1. 

   The total effective sentence is eleven years' imprisonment.

   It is ordered that the respondent serve a term of seven years' imprisonment before he is to be eligible for parole.

   It is declared that the respondent has served 323 days under the sentence and it is ordered that the fact that that declaration has been made and its details be entered in the records of the Court.

   It is declared that the respondent is to be sentenced as a serious sexual offender in respect of counts 3, 4, 5, 6, 7 and 8.

   It is declared for the purposes of s 50(5) of the Sex Offenders Registration Act 2004 that the respondent, having been found guilty and sentenced to two or more Class 1 offences, is required to comply with the reporting obligations imposed by that Act for the remainder of his life.

   The order made below pursuant to s 464ZF of the Crimes Act1958 is confirmed.

2. A certificate will be granted to the respondent pursuant to the provisions of the Appeal Costs Act1998.

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