DPP v GJL

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 326 of 2003

DIRECTOR OF PUBLIC PROSECUTIONS
	v.
G.J.L.

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JUDGES:	CHARLES, J.A. and BONGIORNO and O'BRYAN, A.JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 March 2004
DATE OF JUDGMENT:	11 March 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 35	1^st Revision – 19 March 2004

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Criminal law - Sentencing - Sexual offending by a grandparent with his three-year-old grand-daughter over a period of six months - Indecent acts - Incest - Producing and transmitting child pornography - Respondent sentenced as a serious sexual offender - Individual sentences manifestly inadequate - Individual sentences not reflecting criminality of the offence or the offender - Departure from proper approach in sentencing for multiple offences of a grave kind - Sentence of six years' imprisonment with non-parole period of four years increased to sentence of ten years with a non-parole period of seven years.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P.A. Coghlan, Q.C., D.P.P. with Mr S. Cooper	K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr T. Danos	Victoria Legal Aid

CHARLES, J.A.:

I will ask O'Bryan, A.J.A. to give the first judgment.

O'BRYAN, A.J.A.:

This is an appeal by the Director of Public Prosecutions against sentences imposed in the County Court on 13 October 2003. The respondent pleaded guilty on 9 October 2003 to 21 counts in a presentment containing 21 counts. He had no prior convictions and was aged 49 when the offending commenced. All of the counts concerned a female child who will be identified as M. She was aged three years and three months when the offences commenced and is a granddaughter of the respondent. The offences were committed between 1 June and 30 November 2002 save for count 20, which was committed on 21 March 2003, and count 21, which was committed on 4 April 2003.

The presentment charged the respondent with:

Four counts of an indecent act in the presence of M (counts 1, 8, 11 and 15) contrary to s.47(1) of the Crimes Act 1958; counts 1, 8, 11 and 15 are representative counts.
Seven counts of an indecent act with M (counts 4, 7, 9, 12, 13, 16 and 18) contrary to s.47(1) of the Crimes Act 1958; counts 4, 7, 9 and 13 are representative counts.
Six counts of incest with M (counts 2, 3, 5, 6, 10 and 14) contrary to s.47 of the Crimes Act 1958; counts 5, 6 and 10 are representative counts.
One count of attempted incest (count 17) contrary to s.321M of the Crimes Act 1958.
One count of producing child pornography (count 19) contrary to s.68 of the Crimes Act 1958; a representative count.
One count of transmission of child pornography (count 20) contrary to s.57A of the Classification (Publications, Films and Computer Games) Enforcement Act 1995; and -
One count of possessing child pornography (count 21) contrary to s.70 of the Crimes Act 1958.

The maximum penalties prescribed by Parliament for the offences charged are as follows:

Indecent act in the presence of a child under 16, 10 years' imprisonment;
Indecent act with a child under 16, 10 years' imprisonment;
Incest, 25 years' imprisonment;
Attempted incest, 20 years' imprisonment;
Produce child pornography, 10 years' imprisonment;
Transmission of child pornography, 10 years' imprisonment;
Possession of child pornography, 5 years' imprisonment.

The sentences imposed in the County Court were as follows:

On counts 1, 8, 11 and 15, 3 months' imprisonment;
On counts 4, 7, 9, 12, 13, 16 and 18, 3 months' imprisonment;
On counts 2, 3, 5, 6, 10 and 14, 7 months' imprisonment;
On count 17, 7 months' imprisonment;
On count 19, 12 months' imprisonment;
On count 20, 6 months' imprisonment;
On count 21, 6 months' imprisonment.

After cumulation orders were made in respect of counts 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17 and 18, a total effective sentence of six years resulted. The Court fixed a minimum term before the respondent could be eligible for parole of four years.

On 27 October 2003 the Director gave notice of appeal on two grounds. The first ground is: that the sentences imposed in respect of each count, the total effective sentence and the non parole period are each manifestly inadequate. Six particulars identified errors in the sentencing process. The second ground is: That the sentencing judge erred by imposing short terms of imprisonment for individual counts and ordering substantial cumulation to achieve the total effective sentence contrary to the principles in D.P.P. v. Grabovac[1]
[1][1998] 1 V.R. 664.

When the hearing of the appeal commenced, the Court received a report from the sentencing judge in which he said:

"As to ground 2, my attempt to comply with R. v. Grabovac involved two considerations in this case:
1.That the videotape revealed that the offences considered individually lay at the low end of the spectrum of seriousness created by the definition of vagina in s.38 (sic 35); and
2.That representative counts should receive a longer sentence than others."

Mr Coghlan submitted that the degree of seriousness of the incest offences could not be considered affected by the statutory definition of "vagina". Section 35 of the Crimes Act 1958 provides that vagina includes the external genitalia. Some of the conduct of the respondent in the penetration offences would be incest using the plain ordinary meaning of vagina. I agree with Mr Coghlan that, insofar as some of the incestuous conduct relied upon the extended meaning of vagina, that did not reduce in any way the seriousness of that conduct.

In his sentencing remarks the judge did not advert to the two matters he raised in the report. The second matter, that representative counts should receive a longer sentence than others, was not given effect in the sentences imposed. There were eight representative counts of indecent acts. The sentences imposed were the same as the sentences imposed on the other counts of indecent acts. There were three representative counts of incest. The sentences imposed on the other three counts of incest were the same as those imposed on the representative counts. However, the two considerations the judge referred to in the report did not, in my opinion, justify the judge failing to comply with the sentencing principles stated in Grabovac.

It is enough to describe briefly the circumstances of the offending. The facts reveal sexual depravity of the highest order, corruption of an infant child and breach of trust by the child's grandfather. Not only did the respondent use M for his personal sexual gratification, he did so for those who derive sexual gratification from child pornography. The first 18 counts in the presentment were laid as a result of the contents of a videotape found in a video camera in the respondent's bedroom on 4 April 2003 when the police executed a search warrant as a result of a complaint made by M's mother. Many of the 18 counts were representative counts to which pleas of guilty were made. The whole picture of the offending captured on the video film had to be given proper effect for the purpose of imposing a just sentence[2]. The counts 19 to 21 are concerned with the videotape and use made of it by the respondent in March and April 2003.
[2]R. v. SBL [1999] 1 V.R. 706.

The tape contained video footage of five separate sessions during which the respondent filmed himself having sexual relations of varying sorts with M in his bedroom. Counts 1 to 3 arise from the session which appears first on tape. Counts 4 to 7 are from the second session. Counts 8 and 9 are from the third session. Counts 10 to 14 are from the fourth session. Counts 15 to 18 are from the fifth session. The offences, counts 1 to 18, took place at Croydon between 1 June 2002 and 30 November 2002 when the respondent was living in a house with M and her parents.

A summary of the offending was tendered to the sentencing judge and the judge viewed the video. Relevant parts of the summary describing the circumstances of the offending are in Annexure A, which is attached to this judgment.

In the court below the prosecutor informed the judge that the level of the offending was very high. Six counts of incest involved the respondent using his penis, tongue and finger to substantially penetrate the vagina of M. Sometimes the act caused M to cry out in pain.

Aggravating features of the offending were the respondent's use of a video camera to film each session and in his transmitting pornographic images to deviant persons who derive sexual satisfaction from child pornography.

Count 19 relates to the respondent's conduct in using a video camera to film the five sessions of indecent acts with M over a period of six months.

Count 20 relates to the transmission by the respondent of two pornographic images depicting the respondent and M by e-mail to another address on 21 March 2003.

Count 21 relates to a considerable number of pornographic images and video files found in the respondent's home on 4 April 2003.

The plea material before the judge included a victim impact statement written by the mother of M. It illustrates all too vividly the harm already apparent in the victim. She wrote:

"The effects of these crimes on M are:
- during the time this was happening she was constantly wetting her bed;
- she wouldn't sleep in her own bed and still won't. She will only sleep in my bed;

- she has problems controlling her emotions;
- she has recently started asking other young male family members "to sex her";

- she suffers from nightmares; and
- M is having regular counselling so she can learn when and where it is appropriate to talk about what has happened to her."

The parents' lives have been affected and they feel the need to constantly protect M. There is a distinct possibility that M's personality and psyche will be permanently damaged by her experiences with her grandfather, a person she loved and could trust. M had her innocence taken from her in very depraved circumstances.

A forensic psychologist's report dated 29 September 2003 was tendered on behalf of the respondent. The report was read and taken into consideration by the judge.

The psychologist stated that the respondent met the recognized criteria for paedophilia, sexually attracted to females, limited to incest. He also met the criteria for a schizoid personality disorder. The psychologist considered that alleged sexual molestation by his parents were significant antecedents to his offence behaviour, including his interest in incest. In terms of the respondent's rehabilitation the psychologist considered the respondent would require a sex offender treatment programme and a period of strict supervision in the community. The psychologist also opined that the crimes were opportunistic and lacked consideration for the effects on the child.

During the plea the judge observed that "it would be necessary for the court to pass a sentence reflective of community denunciation and righting the wrong by way of retaliation." Later, he observed:

"… the problem is merely one of trying to fix an appropriate head sentence and deal with the arithmetic which has been made necessary by the Court of Appeal saying that you've got to sentence appropriately on each count, or at any rate retain some relativity of seriousness on each count."

These words suggest that the judge had an awareness of R. v. Grabovac[3], a decision of this Court, although no specific reference was made to the case.
[3]R. v. Grabovac, supra.

Mr Coghlan, who appeared for the Office of Public Prosecutions, acknowledged that an appeal by the Director is brought in rare and exceptional circumstances. He submitted that the appeal is brought because the sentence reveals such manifest inadequacy, or inconsistency in sentencing standards, as to constitute error in principle.[4] He further submitted that the conduct seen in the video represents examples of the most serious offending of its kind which could come before the courts. He submitted that the highest individual sentence was 12 months on count 19, an extremely low sentence for producing pornography featuring the respondent's conduct with M. Mr Coghlan also criticized each sentence of seven months for incest and attempted incest as being manifestly inadequate. He argued that much higher sentences are called for on every count, measured in years, not months. He also argued that should this Court impose appropriate sentences on each count with some moderate accumulation, a just sentence would be reached. Mr Coghlan submitted that the respondent's overall conduct is aggravated by the videotape which was used to lure the victim into participation in the lewd conduct, to gratify the respondent's perversions and to gratify strangers who appreciate child pornography.
[4]R. v. Clarke [1996] 2 V.R. 520 at 522.

In the circumstances described above, counsel for the respondent had little room to argue that the sentencing discretion did not miscarry.

Mr Danos, counsel for the respondent, argued that if the individual sentences were inadequate, the total effective sentence was within range. In my opinion, the inadequate individual sentences imposed cannot be allowed to stand because the proper method of sentencing on multiple offences of a serious nature was ignored. The sentencing discretion must be reopened.

The main argument presented by Mr Danos is that ameliorating factors, such as the early plea of guilty, preparedness to undertake medical treatment, desisting from further offending and the short period of offending entitled the judge to impose a total effective sentence of six years. Mr Danos submitted that the sentencing judge was mindful of the "totality principle" in selecting the total sentence.[5]
[5]Mill v. R. (1988) 166 C.L.R. 59.

In my opinion, when the sentence was imposed, the sentencing judge fell into errors of principle because he did not heed what this Court said in Grabovac and proceeded to impose manifestly inadequate terms of imprisonment on every count. The cumulation orders produced a manifestly inadequate head sentence. In the circumstances of the offending, a sentence of three months' imprisonment on each of the counts 1, 4, 7, 8, 9, 11, 12, 13, 15, 16 and 18 did not reflect the seriousness of the offending, the effect of the crimes on M and her mother and the aggravating factors. The sentence of seven months' imprisonment on each of counts 2, 3, 5, 6, 10, 14 and 17 (incest) did not reflect the seriousness of the offending, the depravity and breach of trust involved and the effect of the offending on M and her mother. The same observations can be made of the sentences imposed on the pornography counts, 19, 20 and 21. They were each manifestly inadequate.

It is regrettable that this Court has to repeat the principles of sentencing so clearly stated in Grabovac. The Director's appeal in Grabovac was concerned with sentences imposed in the County Court in relation to multiple counts of obtaining property by deception and other offences. Modest sentences were imposed on the counts ranging between one and 12 months. Parliament had prescribed maximum terms of imprisonment for the offences charged varying between seven-and-a-half years and twelve-and-a-half years' imprisonment.

The leading judgment delivered by Ormiston, J.A. was agreed in by Winneke, P. and Hedigan, A.J.A. The relevant passages for the purposes of the present appeal are:

"This case again raises the proper process to be adopted in sentencing persons who have pleaded guilty to or who have been found guilty of multiple offences having regard to accepted principles as to totality, proportionality and the like. I concede that difficulties are posed for judges in sentencing such offences. Those difficulty arise not so much out of the requirements, statutory and otherwise, as to concurrency (see especially s.16 of the Sentencing Act) but, rather, in the application of principles relating to cumulation which in some cases may be exacerbated by specific statutory requirements for cumulation which fortunately do not arise in the present case. The ordinary principles as to cumulation require that the sentencing judge should as far as practicable identify separate events, 'episodes', or 'transactions' giving rise to specific counts or groups of counts and to recognize them by ordering at least a degree of cumulation. This is to avoid the appearance that an offender may commit a series of crimes after the first such crime with effective impunity if all sentences for a series of unconnected offences were to be served concurrently. Difficulty arises not so much in providing for a degree of cumulation, but in having proper regard to the principle of totality and in avoiding the imposition of an inappropriately crushing sentence.
The necessity to have regard to the totality principle has been recognized for many years and is reflected in many cases but it was explicitly recognized by the High Court in the leading case of Mill v. R (1988) 166 C.L.R. 59. The problem lies not so much in requiring judges to stand back and review the aggregate sentence in order to see whether it is just and appropriate, but in the short-cuts which may be adopted to effectuate a proper and fair result. Doubtless that influenced the learned judge in this case to decide, first, that a total effective term of three years was appropriate and then to impose and adjust the constituent sentences accordingly. In my opinion the latter procedure can and does frequently lead to inadequate and inappropriate consideration being given to the sentences on the separate counts, as has here occurred."[6]

Later, his Honour said:
"It remains therefore for me to express my conclusions as to the proper method to be adopted in sentencing of multiple offences. In general a Court should avoid imposing artificially inadequate sentences in order to accommodate the rules relating to cumulation. In other words, as the High Court said, where practicable when applying accepted rules of sentencing as to totality, proportionality and the like and in order to fashion an appropriate total effective head term in relation to a series of offences, it is preferable to achieve a satisfactory result by passing appropriate individual sentences and to make those sentences wholly or partially concurrent, rather than by an order or orders for the cumulation of unnecessarily reduced individual sentences. Nevertheless, a rule of this kind can only be a precept or guideline to be applied as and when practicable. In particular, though concurrency is to be preferred, a degree of cumulation ought to be ordered where sentences represent separate episodes or transactions which ought to be recognized, though at all times avoiding the impose of a 'crushing' sentence."[7]

[6]R. v. Grabovac, supra at page 676.

[7]At p.680.

Because the sentencing judge departed from the proper method to be adopted in sentencing on multiple offences, manifestly inadequate sentences were imposed. Right-thinking members of the community would be shocked to know that individual sentences of seven months' imprisonment were imposed upon a grandfather aged about 50 for repeated acts of incest with his grand-daughter when the maximum penalty for incest is 25 years. Similarly, the other inadequate sentences imposed for indecency and pornography would shock the public conscience.

In my opinion a total sentence substantially higher than that imposed will not offend the totality principle having regard to there being five separate episodes of offending over six months and the aggravating features of the offending.

I am of the opinion that the sentencing judge should have imposed considerably higher sentences on every count. After count 2 the respondent became a serious sexual offender, requiring the court below in determining the length of the sentence to regard the protection of the community from the offender as the principal purpose for which the sentence was being imposed. In order to achieve that purpose s.6D of the Sentencing Act 1991 permitted the court below to impose a sentence longer than that which was proportionate to the gravity of the offence considered in the light of its objective circumstances. However, having regard to the view I have formed as to the gravity of these offences, it is unnecessary to exercise this power.

The total effective sentence of six years and the minimum term of four years is manifestly inadequate. The re-sentencing process will produce a considerably higher maximum and minimum term of imprisonment taking account of the restraints placed on appellate courts in determining appeals by the Director.[8]
[8]Griffiths v. R. (1977) 137 C.L.R. 293; Malvaso v. R. (1989) 168 C.L.R. 227; Everett v. R. (1994) 181 C.L.R. 295; R. v. Vallis [1996] 1 V.R. 269; R. v. Clarke [1996] 2 V.R. 520 at 522-3; R. v. O'Rourke [1997] 1 V.R. 246 at 251 and 255; DPP v. Carter [1998] 1 V.R. 601.

The process also will maintain consistency in sentencing, particularly in cases involving serious sexual offending against children by lineal relatives.[9]
[9]Lowe v. The Queen (1984) 154 C.L.R. 606 at 611; R. v. Carey [1984] 4 V.R. 13 at 18; R. v. Clarke (supra); DPP v. D.J.S. [2003] VSCA 9; R. v. Fairley [2004] VSCA 15 at [5] Chernov, J.A.

I propose that the following sentences be imposed. Counts 1, 4, 7, 8, 9, 11, 12, 13, 15, 16 and 18 (indecent acts in the presence of and with a child under the age of 16) - three years on each count. Counts 2, 3, 5, 6, 10 and 14 (incest) - five years on each count. Count 17 (attempted incest) - three years. Count 19 - two years. Count 20 - two years. Count 21 - 18 months. Orders for cumulation will be made as follows taking into account the five video recordings which indicate offending on separate dates. For the purposes of cumulation the sentence on count 2 will be the base sentence. I consider that one year of the sentence imposed on count 4, two years of the sentence imposed on count 5, six months of the sentence imposed on count 9, six months of the sentence imposed on count 17, and one year of the sentence imposed on count 19 should be served cumulatively upon each other and upon count 2. The total sentence is, therefore, 10 years' imprisonment. I would propose that a period of seven years is to be served before the respondent becomes eligible for parole. The Court will declare that 343 days served in custody before today will be reckoned as already served under this sentence.

In my opinion both grounds are made out and the appeal of the Director should be allowed and the sentences set aside. In their place the sentences I have proposed should be substituted.

CHARLES, J.A.:

I agree.

BONGIORNO, A.J.A.:

I agree with the proposed sentences of O'Bryan, A.J.A. and his reasons for them and have nothing to add.

CHARLES, J.A.:

The orders of the Court today are as follows:

1.The Director's appeal is allowed. The sentence imposed below is set

aside.

2. In lieu thereof the following sentences are imposed:
on counts 1, 4, 7, 8, 9, 11, 12, 13, 15, 16 and 18 - three years' imprisonment on each count; on counts 2, 3, 5, 6, 10 and 14 - five years' imprisonment on each count; on count 17 - three years' imprisonment. on counts 19 and 20 - two years' imprisonment; on count 21 - 18 months' imprisonment respectively.
3.The Court orders that one year of the sentence imposed on count 4, two years of the sentence imposed on count 5, six months of the sentences imposed on each of counts 9 and 17 and one year of the sentence imposed on count 19 be served cumulatively upon each other and upon count 2.
4.The total effective sentence is therefore ten years' imprisonment. The Court directs that the respondent serve a period of seven years before becoming eligible for parole.
5.The Court declares that as at today the period of 343 days be reckoned as already served under this sentence and directs that the making of this declaration be entered in the records of the Court.
6.The Court declares that the respondent is sentenced as a serious sexual offender in respect of all counts after count 2 of the presentment.

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ANNEXURE “A”

Count No.	Offence	Particulars
1.	Indecent act in the presence of a child under 16 (representative count)	*First video recording* commences with the fully clothed complainant sitting on a chair. The accused then appears on camera and starts masturbating his penis in the complainant’s presence. The accused continues to masturbate for almost the entire video recording.
2.	Incest (penis into vagina)	The complainant and the accused then move to the bed and the complainant pulls her underpants down to her ankles. The complainant then lays on her back and the accused positions her so that her vagina is in view of the camera. The accused then rubs his penis on the complainant’s vagina penetrating the outer lips of her vagina.
3.	Incest (tongue into vagina)	The accused then uses his hand to hold open the complainant’s outer vaginal lips and he then licks the complainant’s vagina. He penetrates the outer vaginal lips with his tongue.
Indecent act in the presence of a child under 16 (part of count 1)	The accused then masturbates his penis over the complainant’s vagina until he ejaculates on the outside of her vagina. The accused then wipes the ejaculate from the complainant’s vaginal area and then pulls her pants back up. Shortly thereafter the recording ceases.
4.	Indecent act with a child under 16 (representative count)	*The second video* recording commences with the complainant playing on the bed naked. The accused then grabs the complainant and pulls her legs apart so that her vagina is in view of the camera.
Indecent act with a child under 16 (part of count 4)	The complainant then continues playing on the bed. At this time she has a remote control device in her hand which she is playing with. The accused then grabs the complainant and again pulls her legs apart so that her vagina is exposed to the camera.
Indecent act with a child under 16 (part of count 4)	The complainant then continues playing with the remote control. The accused then grabs the complainant and for a third time he pulls her legs apart exposing her vagina to the camera.
Indecent act with a child under 16 (part of count 4)	The complainant continues playing and the accused then grabs her for the fourth time and pulls her legs apart. This time he also uses his hand to open up the outer lips of her vagina.
5.	Incest (fingers into vagina) (representative count)	The complainant then continues playing on the bed. The accused then rubs the complainant’s vagina with his finger penetrating her outer vaginal lips.
Incest (fingers into vagina) (part of count 5)	The complainant then continues playing on the bed. The accused then pushes the complainant on her back and pulls her legs apart and uses his hand to open the outer lips of her vagina. He then uses his fingers to rub the complainant’s vagina penetrating the outer lips.
6.	Incest (tongue into vagina) (representative count)	While the complainant is still lying on her back the accused licks her vagina penetrating the outer lips with his tongue.
Indecent act with a child under 16 (part of count 4)	While the complainant is lying on her stomach the accused says to her “Show your pussy”. The accused then rubs his hand between her legs and pulls her legs apart. At this time he is saying to her “Open your legs right up so the camera can see.”
Indecent act with a child under 16 (part of count 4)	The complainant continues to lay on her stomach and the accused pulls her legs apart and rubs her vaginal area with his finger. At this time he is saying, “I can see it.” Not clear whether there is penetration.
Incest (fingers into vagina) (part of count 5)	While the complainant is still lying on her stomach the accused tells her to show her pussy and open up her pussy. He then opens her legs and rubs her vagina with his finger penetrating the outer vaginal lips.
Incest (tongue into vagina) (part of count 6)	The complainant rolls onto her back and the accused pulls open her legs and licks her vagina penetrating the outer vaginal lips with his tongue. Just prior to this the accused says, “Right that’s it I’m going to suck it”.
7.	Indecent act with a child under 16 (representative count)	The accused instructs the complainant to open her vagina with her hands. She complies with his request.
Incest (tongue into vagina) (part of count 6)	The accused then licks her vagina penetrating the outer vaginal lips with his tongue.
Indecent act with a child under 16 (part of count 7)	The accused then instructs the complainant to put her finger inside her vagina and move it in and out. The complainant complies with his request and the accused tells her that she is a good girl.
Incest (fingers into vagina) (part of count 5)	The accused then asks the complainant if she wants Poppie to do it. The accused then uses his little finger to penetrate the complainant’s vagina and he moves his finger in and out of her vagina.
Incest (tongue into vagina) (part of count 6)	The accused then withdraws his finger and begins licking the complainant’s vagina with his tongue penetrating the outer vaginal lips.
Incest (fingers into vagina) (part of count 5)	The accused then re-inserts his finger into the complainant’s vagina and moves it in and out. The accused then removes his finger and the complainant continues playing on the bed and shortly thereafter the recording ceases.
8.	Indecent act in the presence of a child under 16 (representative count)	*The third video recording* commences with the accused lying on the bed naked. He starts masturbating his penis in the complainant’s presence and coaxes her to get onto the bed with him. The complainant is also naked. Throughout much of the video recording the accused masturbates himself.
9.	Indecent act with a child under 16 (representative count)	The accused then picks the complainant up and sits her onto his semi erect penis. There doesn’t appear to be penetration of the complainant’s vagina however his penis does rub against the outside of her vagina. The complainant then yells “No” and gets off the accused.
Indecent act with a child under 16 (part of count 9)	The accused starts masturbating again. He then grabs the complainant and sits her on his chest. He then turns the complainant around so that she is facing the camera and rubs his fingers on the outside of her vagina. At this time the accused also rubs his penis against the outside of her vagina. There doesn’t appear to be penetration of the vagina. The complainant then gets off the accused.
Indecent act with a child under 16 (part of count 9)	The accused then starts masturbating again and then grabs the complainant and pulls her onto his body. He then rubs his hand between the complainant’s legs and then pulls her genitals towards his face. The complainant then rolls away from the accused.
Indecent act with a child under 16 (part of count 9)	The accused starts masturbating again and then grabs the complainant and pulls her onto his chest area. He then places his penis between the complainant’s legs and then rubs the complainant’s body against his penis.
Indecent act with a child under 16 (part of count 9)	The accused then plays with the complainant for a time. The complainant then lies on the accused’s chest and he caresses her body. During this time the complainant tells the accused that she needs to do wees and the accused asks the complainant several times to do it on him but she refuses. Shortly thereafter the recording ceases.
10.	Incest (tongue into vagina) (representative count)	*The fourth video recording* commences with the complainant sitting on the bed wearing a pink top but no underwear. The accused says to the complainant “Do you want Poppie to suck it?” The complainant says “No” and the accused then says “Yes you do”. The accused then joins the complainant on the bed. He is naked from the waist down. He then starts licking the complaint’s vagina with his tongue penetrating the outer vaginal lips.
Incest (tongue into vagina) (part of count 10)	The accused licks the complainant’s vagina for a second time while she is lying on her back on the bed. He penetrates the outer vaginal lips with his tongue.
Incest (tongue into vagina) (part of count 10)	The accused then picks the complainant up off the bed and holds her vagina up to his face and licks her vagina.
11.	Indecent act in the presence of a child under 16 (representative count)	The accused then masturbates his penis in the complainant’s presence. At this time the complainant is sitting with her legs straddled across the accused’s chest. The accused masturbates on and off throughout the remainder of the video recording.
Incest (tongue into vagina) (part of count 10)	The accused then places the complainant so that she is sitting on his face. He then licks her vagina while masturbating his penis. This act continues for several minutes. The accused then stops what he is doing to attend to a baby that can be heard crying in the background.
12.	Indecent act with a child under 16.	The accused then returns to the bed and kisses the outside of the complainant’s vagina while she is lying on her back on the bed.
Incest (tongue into vagina) (part of count 10)	The accused then places the complainant so that she is sitting on his face and he licks and penetrates her vagina with his tongue. While doing this he also masturbates his penis. This act continues for several minutes during which the complainant changes positions from facing the camera to facing away from the camera. The complainant then gets off the accused and moves away from him for a time.
Incest (tongue into vagina) (part of count 10)	The accused then places the complainant so that she is once again sitting on his face. He then licks her vagina and masturbates his penis.
13.	Indecent act with a child under 16 (representative count)	The accused then asks the complainant if she is going to play with Poppie’s cock. The complainant says “No” and the accused replies “Poppie plays with your pussy all the time, you have to play with his cock”. The complainant says “No” and the accused then gets her to kiss his penis twice.
Incest (tongue into vagina) (part of count 10)	The accused then places the complainant so that she is sitting on his face and he licks her vagina.
Incest (tongue into vagina) (part of count 10)	The accused then moves the complainant so she is lying on her back and he then licks her penetrating the outer vaginal lips. At this time the accused is also masturbating his penis.
Indecent act with a child under 16 (part of count 13)	The accused then instructs the complainant to open up her vagina with her hands. She complies with his request.
Incest (tongue into vagina) (part of count 10)	The accused then licks her vagina penetrating the outer lips. He is also masturbating at this time.
14.	Incest (penis into vagina)	The accused then asks the complainant “Do you want to fuck?” He then penetrates the complainant’s vagina with his penis. The complainant says “That hurts me.” To which the accused replies “I know that’s because it wants to go in”. The recording then ceases.
15.	Indecent act in the presence of a child under 16 (representative count)	*The fifth video recording* commences with the complainant on the bed dressed in a top but no underwear. The accused then joins her on the bed. He is naked from the waist down. The complainant then sits on the accused’s chest with her legs straddled either side. The accused starts masturbating his penis and he then asks the complainant to “Suck Poppie”, but she refuses. The complainant then removes her top so that she is totally naked.
16.	Indecent act with a child under 16	The accused continues to ask the complainant to suck him but she refuses. He then says to the complainant “Play with Poppie’s cock” and he makes her fondle his penis.
17.	Attempted Incest (penis into vagina)	The accused then starts masturbating again and the complainant moves away from him. He then grabs the complainant and sits her on his erect penis. It is not clear whether there is penetration of the outer vaginal lips but the accused places his penis between the complainant’s legs and for a short period of time he appears to be pushing his penis against her vagina. The complainant says “No” and then gets off the accused.
18.	Indecent act with a child under 16	The accused then rolls on top of the complainant and appears to thrust his penis in and out of the complainant’s vagina. The complainant becomes distressed and screams several times “Get off me Poppie”. The accused continues for a short time before rolling his body off the complainant. It is unclear as to whether there is any penetration as the accused’s body completely covers the complainant’s body during what appears to be simulated sex.
Indecent act in the presence of a child under 16 (part of count 15)	The accused then masturbates his penis in the complainant’s presence while she is sitting with her legs straddled over his chest. At this time the accused says “give me your pussy in my mouth. Let me suck it.” The complainant refuses and tells the accused that she needs to go to the toilet. The accused then asks her to urinate on him but the complainant refuses. The accused continues asking the complainant to urinate on him for several minutes and he continues to masturbate until the recording ceases.
19.	Produce child pornography (representative count)	This charge relates to the five separate occasions when the accused made a video recording of him and the complainant engaging in sexual acts.
20.	Transmission of child pornography	Police from the computer crime squad conducted an examination of the accused’s computer e-mail system. They located an e-mail sent from the accused’s e-mail account on 21/3/03 which contained the following message: “hi here is a sample be careful.” Attached to the e-mail were two graphic images. Both of the images depicted the complainant and the accused and were of a pornographic nature.
21.	Possess child pornography	Police seized from the accused 35 computer disks. The disks were analysed and found to contain 141,718 images depicting child pornography and 458 video movie images depicting child pornography. The children shown in the images and movies range in age from 3 years to 16 years. Police also seized 5 hard disk drives which were analysed and found to contain approximately 12,836 graphic images which constitute child pornography and approximately 1001 movie files of which approximately 10% constitute child pornography. Police also located 7 graphic images depicting the complainant and the defendant engaging in sexual conduct.

[2004] VSCA 35

11 March 2004