DPP v Hopson
[2016] VSCA 303
•8 December 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2016 0062
| DIRECTOR OF PUBLIC PROSECUTIONS | Appellant |
| v | |
| IVOR HOPSON (A PSEUDONYM)[1] | Respondent |
[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the respondent.
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| JUDGES: | REDLICH and WHELAN JJA, and BEALE AJA | |
| WHERE HELD: | MELBOURNE | |
| DATE OF HEARING: | 6 October 2016 | |
| DATE OF REASONS: | 8 December 2016 | |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 303 | |
| JUDGMENT APPEALED FROM: | DPP v Hopson [2016] VCC 293 (Judge Cohen) | |
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CRIMINAL LAW – Director of Public Prosecutions’ appeal against sentence – Multiple charges of incest, indecent act with child under 16 and knowingly possess child pornography – Sentenced to eight years’ imprisonment with a non-parole period of five years and nine months – Significant prior convictions – Need for specific deterrence –Sentenced as a serious sexual offender – Presumption of cumulation – Principal sentencing purpose is the protection of the community – Tension between s 6E Sentencing Act 1991 and the principle of totality – Specific error in relation to degree of concurrency ordered by sentencing judge – Manifest inadequacy – Appeal allowed – Respondent re-sentenced to 11 years and six months’ imprisonment with a non-parole period of eight years and six months – Reid (a Pseudonym) v The Queen (2014) 42 VR 295 – R H McL v The Queen (2000) 203 CLR 452 – Gordon (a Pseudonym) v The Queen [2013] VSCA 343.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr C Boyce SC | Mr John Cain, Solicitor for Public Prosecutions |
| For the Respondent | Ms H Spowart with Ms E Broughton | Victoria Legal Aid |
REDLICH JA
WHELAN JA
BEALE AJA:
Introduction
This is an appeal by the Victorian Director of Public Prosecutions (the Director) against the sentence imposed on the respondent for several sexual offences.
We are satisfied that the total effective sentence and the non-parole period imposed by the sentencing judge were, as a result of the extent of the orders for concurrency, affected by specific error and are manifestly inadequate.
Nothing about the conduct of the Director before the sentencing judge warrants the exercise of the residual discretion to dismiss the appeal.
In the words of s 289 of the Criminal Procedure Act 2009, we are therefore satisfied that there is an error in the sentence first imposed and that a different sentence should be imposed.
Accordingly, we allow the appeal and resentence the respondent by reducing the amount of concurrency ordered by the sentencing judge in respect of the state sentences, producing a total effective sentence of 11 years and six months’ imprisonment with a non-parole period of eight years and six months’ imprisonment (as compared with the current sentence of eight years imprisonment with a non-parole period of five years and nine months). Pursuant to s 6AAA of the Sentencing Act 1991, we declare that, but for the respondent’s plea of guilty, we would have imposed a total effective sentence of 15 years and six months’ imprisonment and a non-parole period of 11 years and six months. We make a declaration of 674 days of presentence detention.
Sentence
On 10 March 2016, the respondent (now aged 47), pleaded guilty to two charges of indecent act with a child under 16, six charges of incest, using a carriage service to access child pornography (a Federal offence) and two charges of knowingly possess child pornography. Following a plea on 10 March 2016, the respondent was sentenced on 18 March 2016. However, due to the sentence including a sentence for one Federal offence, the structure of the sentence did not provide the non-parole period intended by the sentencing judge. On 8 April 2016, after hearing submissions as to how she might best give effect to her sentencing intentions, the sentencing judge resentenced the respondent as follows:
Charge on Indictment Offence Maximum Sentence Cumulation 1 Indecent act with a child under 16 [Crimes Act 1958, s 47(1)] 10 years
[Crimes Act 1958, s 47(1)]3 months N/A 2 Indecent act with a child under 16 [Crimes Act 1958, s 47(1)] 10 years [Crimes Act 1958, s 47(1)] 8 months N/A 3 Incest (child of de facto)[Crimes Act 1958, s 44(2)] 25 years [Crimes Act 1958, s 44(2)] 4 years 7 months 4 Incest (child of de facto) [Crimes Act 1958, s 44(2)] 25 years [Crimes Act 1958, s 44 (2)] 58 months Base 5 Incest (child of de facto) [CrimesAct 1958, s 44(2)] 25 years [Crimes Act 1958, s 44 (2)] 4 years 7 months 6 Incest (step-child) [Crimes Act 1958, s 44(1)]
(Representative Charge)25 years [Crimes Act 1958, s 44(1)] 4 years 7 months 7 Incest (step-child) [Crimes Act 1958, s 44(1)]
(Representative charge)25 years [Crimes Act 1958, s 44(1)] 4 years 7 months 8 Incest (step-child) [Crimes Act 1958, s 44(1)] 25 years [Crimes Act 1958, s 44(1)] 54 months 9 months 9 Use carriage service to access
child pornography [Criminal Code Act 1995 (Cth), s 474.19]15 years [Criminal Code Act1995 (Cth),s 474.19] 6 months Concurrent
(commenced 18 March 2016)10 Knowingly possess child pornography [Crimes Act1958, s 70(1)] 10 years [Crimes Act 1958, s 70(1)] 3 months 1 month 11 Knowingly possess child pornography [Crimes Act1958, s 70(1)] 10 years [Crimes Act 1958, s 70(1)] 2 months N/A Total Effective Sentence: 8 years Non-Parole Period: 5 years 9 months Pre-sentence Detention Declared: 409 days 6AAA Statement: 12 years with non-parole period of 8 years 6 months. Other orders: Pursuant to s 6F of the Sentencing Act 1991, the respondent was sentenced as a serious sexual offender in respect of Charges 1–8, 10 and 11.
Pursuant to s 34 of the Sex Offenders Registration Act 2004, the respondent was placed on the sex offender register, with a reporting period of life.
Forfeiture order in respect of charges 10 and 11.
Grounds of Appeal
The Director appealed on the following grounds:
Ground 1 – The total effective sentence and non-parole period imposed on Indictment No F10406993 are manifestly inadequate in that in fixing sentence the learned sentencing judge –
(a)made orders for concurrency in respect of all the individual sentences imposed that, in combination with the fact that all the individual sentences are objectively low, resulted in a total effective sentence and non-parole period that are manifestly inadequate in all the circumstances;
(b)made orders for concurrency that fail to reflect that the respondent was to be sentenced as a “serious offender” on all charges;
(c)in setting the total effective sentence and non-parole period, failed to give sufficient weight to the sentencing principles of protection of the community, just punishment, denunciation, general deterrence and specific deterrence;
(d)failed to have sufficient regard to the seriousness of the offences, the context within which the offences were committed, and the impact the offences had on the complainant;
(e)failed to have sufficient regard to the respondent’s prior convictions and that the respondent had offended relatively soon after he had been released from a prison sentence for similar offending; and,
(f) misapplied the principle of totality.
Ground 2 – The learned sentencing judge erred by applying the sentencing principle of totality in a manner that undermined the legislative policy inherent in section 6E of the Sentencing Act 1991 by applying the sentencing principle of totality as if that section was not on the statute book and, in particular, by ordering excessive concurrency as between all individual sentences imposed on Indictment F10406993.
Section 6E of the Sentencing Act 1991 provides:
Every term of imprisonment imposed by a court on a serious offender for a relevant offence must, unless otherwise directed by the court, be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed on that offender, whether before or at the same time as that term.
There was no Notice of Appeal from the Commonwealth Director of Public Prosecutions in respect of the sentence imposed on the Federal offence of using a carriage service to access child pornography (Charge 9). Consequently, during the hearing of the appeal, the Director advised that his appeal did not extend to the orders made by the sentencing judge in relation to that charge.
No attack was made by the Director on the individual sentences for each State offence. They were said to be within the range of sentences open to the sentencing judge. However, the extent of the orders for concurrency had, according to the Director, resulted in sentencing error.
Circumstances of Offending
The respondent commenced a relationship with the victim’s mother in around 2003 or 2004.
Between 1 July 2004 and 31 August 2004, the victim — who has a mild intellectual disability — lived with her mother and the respondent at his home.
During this period, when the victim was aged 11 years and the respondent 35 years, the respondent began coming into the victim’s room and touching her inappropriately. On one occasion, he put his hand down the victim’s top and touched her breasts on the skin (Charge 1 — indecent act with a child under 16).
On another occasion the respondent put his hand down the victim’s pyjama pants and underpants and touched the victim between her legs on the front of the vagina (Charge 2 — indecent act with a child under 16). The respondent then put his hand back between the victim’s legs, and began to move his fingers in and out of her vagina (Charge 3 — incest (child of de facto)).
One night when the victim was lying in bed listening to music, the respondent came into her room, got on top of the victim and put his penis into the victim’s vagina (Charge 4 — incest (child of de facto)).
One or two weeks later the respondent went into the victim's bedroom and pulled the victim’s pants down, laid her down and put his penis in her vagina (Charge 5 — incest (child of de facto)).
Shortly afterwards, the victim was removed from the home by the Department of Human Services.
The victim made a statement of complaint to police on 7 August 2008. The respondent was interviewed by police but denied any wrongdoing. Charges were not authorised at that time.
On 22 November 2008, the respondent and the victim’s mother were married. This was the respondent’s second marriage, the relevance of which will become apparent later.
Towards the end of 2011, after a period of living independently, the victim (aged 18 at that time), moved back to the family home to live with her mother and the respondent.
Between 9 September 2011 and 20 December 2011, the respondent and the victim had penile/vaginal intercourse at the family home. The respondent instigated this in a text message to the victim asking for sex (Charge 6 — incest (step child)). Charge 6 was a representative charge, representative of one other occasion during the same period when the respondent and victim had penile/vaginal intercourse at the family home.
Between 26 December 2012 and 31 December 2012, when the victim was aged 19, the respondent and victim had penile/vaginal intercourse at the family home (Charge 7 — incest (step child)). Charge 7 was a representative charge, representative of 15 occasions when the respondent and victim had penile/vaginal intercourse over a period of approximately two years and five months, that is, from September 2012 to 3 February 2015.
Between 1 June 2013 and 3 February 2015, when the victim was aged 20 to 21, the respondent told the victim to go into the bathroom where he put his penis into the victim’s anus (Charge 8 — incest (step child)). The victim said that it hurt and so the respondent removed his penis.
On 3 February 2015, a Commonwealth warrant was executed at the respondent’s house and several electronic devices were seized under warrant. Images and video footage of the respondent engaging in sexual intercourse with the victim were discovered. This led to the investigation in relation to the charges concerning the victim.
Forensic analysis of the respondent’s desktop computer identified that between April 2014 and January 2015, 2,310 downloads from a site called Pre-Teen Hard Core (PTHC) had occurred. In addition, between August 2014 and January 2015, 14 incomplete downloads were identified from PTHC (Charge 9 — using a carriage service to access child pornography). The desktop computer contained 62 images of child exploitation material (CEM) (Charge 10 — possess child pornography). The respondent’s mobile phone contained one Category Four CEM movie containing sexual intercourse between adult males and female children aged two to 10 years old. This movie was saved on 28 January 2015 (Charge 11 — possess child pornography).
The respondent was arrested and interviewed at the completion of the execution of the search warrant. The respondent provided various email accounts and other usernames and passwords. The respondent denied using the internet to search for CEM and stated that the desktop computer was left on all the time, and was used by other occupants, but they did not know the passwords.
A further interview was conducted on 3 February 2015 where the respondent made admissions to having sexual intercourse with the victim. The respondent stated that he did not know that a sexual relationship with an adult step-daughter was illegal, but that he knew it was wrong.
Prior Convictions
The respondent has a number of highly relevant prior convictions. From the early to the mid-nineties, he repeatedly sexually abused his three young step daughters from his first marriage. These offences were the subject of two Magistrates’ Court cases and one County Court case, resulting in significant terms of imprisonment.
At Moe Magistrates’ Court on 24 September 1996, in respect of one charge of indecent assault, he was sentenced to imprisonment for three months, wholly suspended for 24 months, and a community based order (CBO) for 24 months. In addition to 500 hours of unpaid community work, the CBO required him to undergo assessment and treatment and, most relevantly, to participate in a sex offender assessment program. As things turned out, the respondent did not undertake such a program in the community but did so when he was subsequently imprisoned. According to the respondent’s counsel at the plea hearing in relation to the instant offences, the indecent assault that was dealt with in September 1996 was committed against one of his stepdaughters from his first marriage.
At Moe Magistrates’ Court on 3 March 1997, in respect of four charges of indecent assault, seven charges of indecent act with or in the presence of a child under 16, two charges of intentionally or recklessly causing injury and four charges described on the respondent’s criminal record as ‘take actions – child significant harm’, the respondent was sentenced to a total effective sentence of 24 months with a non-parole period of 18 months. According to the respondent’s counsel at the plea hearing for the instant offences, the victims of these offences were his three step daughters from his first marriage and one of their friends.
At Moe Magistrates’ Court on 6 April 1998, in respect of a breach of the CBO imposed on the respondent in September 1996, the CBO was cancelled and the respondent was sentenced to imprisonment for 12 months, three months of which was suspended for 24 months. The nature of the breach of the CBO was not revealed in the information provided to this court.
Whilst still in custody on the Magistrates’ Court sentences, the respondent was dealt with at Morwell County Court on 22 September 1998, in respect of 10 charges of incest, one charge of attempted incest, four charges of indecent act with or in the presence of a child under 16 and one charge of intentionally causing injury, for which he was sentenced by Judge Crossley to a total effective sentence of four years and six months with a non-parole period of two years and three months. According to the sentencing remarks of Judge Crossley, the victims of these offences were again the respondent’s three stepdaughters from his first marriage and they were aged between nine and 11 during the offending period which extended from early 1992 to the end of 1996.[2]
[2]According to the respondent’s counsel at the plea hearing for the instance offences, the incest counts dealt with by Judge Crossley related to only one of the step daughters but the respondent sexually abused them all.
In respect of Judge Crossley’s sentence, the respondent was released on parole on 23 October 2001. The head sentence expired on or about 23 March 2003. This was followed by the commencement of the instant offending 16 months later.
Judge Crossley declared that the respondent fell to be sentenced by him as a serious sexual offender in respect of each count pursuant to Part 2A of the Sentencing Act 1991. That is also the case in relation to each of the instant offences.
Sentencing reasons
As regards the seriousness of the respondent’s offences, the sentencing judge placed them into three groups, beginning with Charges 1 to 5 which were committed when the victim was only 11 years of age. In relation to this first group, she indicated that she would have regarded Charge 1 (touching the victim’s breasts on the skin) as of ‘relatively low seriousness’ had it been an isolated act but went on to say that ‘it was clearly a forerunner of much more serious offending and given [the respondent’s] past history [he] ought to have been particularly alert to not crossing any such boundaries’. The sentencing judge categorised the acts of incest when the victim was 11 (Charges 3 to 5) as ‘at a medium level of severity for offences of this nature’,[3] noting that the respondent’s conduct ‘did not bear some of the more serious features of aggravation unfortunately found in some other cases.’[4] Her Honour was there referring to features of aggravation mentioned by Priest JA in Reid (a pseudonym) v R,[5] such as overt threats of violence, the infliction of physical harm and conduct of an especially degrading or humiliating nature.[6]
[3]DPP v Hopson (a Pseudonym) [2016] VCC 293, [31] (‘Sentence’).
[4]Ibid [31].
[5][2014] VSCA 145; (2014) 42 VR 295, especially at [88], [107].
[6]Sentence [30].
In relation to the second group of offences (Charges 6 to 8) which were committed by the respondent when the victim was aged between 18 and 21 and included two representative counts, the sentencing judge observed that ‘public abhorrence of sexual activity with a young woman of adult age is generally lower than for a much younger child’.[7] She went on to say that, ‘yours are not at the highest level of seriousness for offences of this nature, but involve a clear breach of …. trust … even after she was 18’.[8] It is implied in the sentencing reasons that she placed the second group of offences, which had to be viewed in the context of the earlier offending[9] against the victim, in the mid-range of seriousness but regarded them as less serious than the incest offences committed when the victim was only 11.[10]
[7]Ibid [32].
[8]Ibid [34].
[9]Ibid [33].
[10]Although the sentences imposed by her for the second group of offences are commensurate with the incest sentences for the first group.
In relation to the third group of offences, which included the two charges of possession of child pornography, the sentencing judge said ‘I do not infer that the images included any of the worst level of child exploitation or depravity, but do infer that the number of images over the period will have very considerable numbers of children being exploited for the trade in such images’.[11] It is implied by the sentencing judge’s reasons that she regarded the possession of child pornography offences as being mid-range examples of the offence.
[11]Sentence [43].
The sentencing judge did not expressly make a finding as to the respondent’s prospects of rehabilitation. Whilst she found that the respondent had shown some remorse and now appreciated that he had underlying problems to address if he was not to reoffend,[12] she stated that specific deterrence was a very important sentencing factor which suggests that she was guarded about his rehabilitative prospects. That she regarded specific deterrence as very important was unsurprising given the respondent’s prior convictions for similar offending, his failure (on his own admission to consultant psychologist Carla Lechner) to fully engage with a custodial sex offender program previously provided to him, the gravity of his offending against the victim of the instant offences and the fact that he has been diagnosed as a paedophile.
[12]Ibid [72].
The sentencing judge referred to the report of consultant psychologist Carla Lechner which was tendered by the defence. She noted that the respondent fulfilled ‘the criteria of a diagnosis of paedophilic disorder’.
In relation to Ms Lechner’s assessment that the respondent was a moderate risk of reoffending, the sentencing judge did not at any stage say that she accepted the assessment. In her sentencing reasons she commented that Ms Lechner ‘did not explain the methodology for that assessment’.[13] During the plea hearing the sentencing judge said of Ms Lechner’s risk assessment:
There are limits to that. She doesn’t explain what …. assessment tools she’s used and she also doesn’t appear to know the extent of the prior similar offending. I now know its properly described as all being against previous step-daughters of a not dissimilar age to the age that this was, at least for …. charges one to five.
[13]Ibid [58].
As regards the application of s 6E of the Sentencing Act 1991, the sentencing judge said:
As you fall to be sentenced as a serious sex offender for each of these offences the sentences are required under s 6E to be cumulative except to the extent that I order concurrency. There will be a considerable amount of concurrency in this case. In particular to allow for the principle of totality. That means that the overall offending for which the overall ultimate sentence is imposed must be considered, and that the sentence should not be so crushing as to remove any hope for you to set your sights on for the future.
In my view, although certain offending can be grouped together, as I have said there are three distinct courses of conduct which required recognition and the issues of cumulation or concurrency I have taken into account in that regard.[14]
[14]Sentence [83]–[84].
Submissions on Appeal
The Director submitted that while the individual sentences imposed on the respondent were within the lower end of the range of available sentences,[15] the total effective sentence was manifestly inadequate. The Director submitted that the sentencing judge, in making the orders for concurrency, erroneously gave the principle of totality full effect and that this error also vitiated the non-parole period imposed.
[15]The Director submitted that current sentencing practices for incest restrained it from submitting that the individual sentences were manifestly inadequate.
The respondent’s relevant prior criminal history of sexual offending against children, risk of re-offending, diagnosis as a paedophile and lack of engagement in rehabilitation meant that specific deterrence and community protection loomed large in the sentencing exercise. Further, as the respondent was to be sentenced as a serious sexual offender, the sentencing court was bound to regard the protection of the community as the principal sentencing purpose.[16] The respondent’s serious sexual offender status meant that there was a legislative presumption under s 6E of the Sentencing Act 1991 that the individual sentences imposed would be served cumulatively, unless otherwise directed by the court. The Director relied upon RH McL v The Queen[17] in support of its assertion that as a consequence of the application of s 6E the principle of totality must not be given full effect.[18] It was submitted that in addition to the objective gravity of the offending, matters which should guide a trial judge in resolving the tension between the application of the principle of totality and s 6E include where the offender falls on the spectrum of serious offenders and the offender’s prospects of rehabilitation.
[16]Section 6D, Sentencing Act 1991.
[17](2000) 203 CLR 452.
[18]Ibid 476–7, [76].
In response to the respondent’s contention that the Court should exercise its residual discretion to dismiss the appeal because the Director had not raised the matters now relied upon with the sentencing judge, the Director submitted that there was nothing more that the Director needed to say at the plea hearing, the operation of s 6E having been brought to the sentencing judge’s attention by the respondent’s counsel. On 8 April 2016, when the sentencing judge was discussing the proposed sentence restructure with the parties, it would have been improper for the Director to complain that the total effective sentence was inadequate. Such a submission would have infringed the High Court decision in Barbaro v The Queen.[19]
[19][2014] HCA 2; (2014) 253 CLR 58.
The respondent submitted that the Director had failed to establish that the total effective sentence imposed and the non-parole period fixed by the sentencing judge were manifestly inadequate. The sentencing judge had sufficient regard to the respondent’s prior convictions, the respondent’s plea of guilty, the seriousness and context of the offending, and the impact it had on the victim. The sentencing judge gave sufficient weight to the principles and purposes of sentencing and properly regarded protection of the community as the primary sentencing purpose.
The respondent relied on Ashley JA’s remarks in Gordon (a pseudonym) v The Queen[20] to support his contention that s 6E, while creating a presumption of cumulation, preserves the discretion of the sentencing judge to order cumulation or concurrency and does not limit the trial judge’s discretion.[21] In resolving the tension between s 6E and the principle of totality, the respondent submitted that the seriousness of the offending, the offender’s personal characteristics and circumstances and his or her prospects of rehabilitation are all relevant considerations. In the present case, the sentencing judge was aware that the respondent was a serious sexual offender and of the requirements of s 6E, and made no error in her application of the totality principle. There is nothing unusual about the orders made for either cumulation or concurrency.
[20][2013] VSCA 343.
[21]Ibid [59]–[63].
The respondent noted that at the plea hearing, the Director did not make any submissions in relation to cumulation, the application of s 6E, or how the principle of totality might be applied or modified. Consequently, it was submitted that even if error is shown, the Court should exercise its residual discretion to dismiss the appeal. The Director should have raised the matters now relied upon at the plea hearing or at the time of the sentencing judge’s restructuring of the sentence.
Legal Principles
The authorities provide limited assistance as to how the tension between s 6E and the totality principle is to be resolved in a given case.
In R v H McL[22], in relation to the predecessor of s 6E which was in the same terms, McHugh , Gummow and Hayne JJ said:
Section 16(3A) gives effect to a legislative policy that serious offenders are to be treated differently from other offenders. It was plainly intended to have more than a formal effect, which is the effect it would frequently have if its operation was subject to the full effect of the totality principle. Given the terms of s 16(3A), the scope for applying the totality principle must be more limited than in cases not falling within that section. The evident object of the section is to make sentences to which it applies operate cumulatively rather than concurrently. The section gives the judge a discretion to direct otherwise. But the object of the section would be compromised and probably defeated in most cases if the ordinary application of the totality principle was a sufficient ground to liven the discretion. Since the relationship between s 16(3A) and the totality principle does not arise in this appeal, it is enough to say that sentencing judges need to be astute not to undermine the legislative policy inherent in s 16(3A) by applying the totality principle to the sentences as if that section (or s 6E which replaced it) was not on the statute book.[23]
[22](2000) 203 CLR 452.
[23]Ibid 477 [76] (emphasis added).
In Gordon (a pseudonym) v The Queen[24], Redlich JA said:
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 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. However, it may at least be said that as the objective gravity of the total offending increases, so will the degree of cumulation which is ordered, thereby producing a total effective sentence which will more closely correspond with both the legislative policy underlying s 6E and the principle of totality.[25]
[24][2013] VSCA 343.
[25]Ibid [74] (emphasis added).
In Gordon, Redlich JA identified one relevant consideration, namely, the objective gravity of the offending: he indicated that as the objective gravity of the offending escalates, so too would the degree of cumulation.[26]
[26]Another way of expressing the same idea is to say that as the objective gravity of the offending increases, the degree of concurrency to be ordered will be reduced. In our view it is preferable to express it this way because, under s 6E of the Sentencing Act 1991 there is a presumption of complete cumulation when sentencing an offender as a serious offender. Given this presumption, it is concurrency or partial concurrency which must be ordered.
In our view, the risk of the offender re-offending and the likely seriousness of any reoffending must also be relevant considerations. Where a court determines that an offender’s prospects of rehabilitation are poor, or less than reasonable, the need to protect the community by imposing a longer sentence is more pronounced.
Analysis
Given the respondent’s priors, the respondent’s moral culpability in offending against the victim was of a high order, especially in respect of the first group of offences. If there was ever a time when the respondent was ignorant of the serious harm he was doing by committing these sorts of offences against young children, that was not the case when he offended against this victim when she was only 11 years of age. Judge Crossley made the following observations when sentencing the respondent in 1998 for similar offences against his three stepdaughters from his first marriage:
You did what you did for pure sexual self-gratification, with no concern for what effects there might be in the children in your care. You must have understood the probable consequences of your actions upon such young and vulnerable children, but did not concern yourself with those consequences. Those children have in fact suffered very considerably as a result of what you did to them.[27]
[27]DPP v Ivor Hopson (a Pseudonym) (Sentence) [1998] VCC (Crossley J, 23 September 1998) 1–2 (emphasis added).
Whilst serving the sentence imposed by Judge Crossley, the respondent underwent a sex offender’s program. Notwithstanding that, on his own account, he was simply ‘going through the motions’ when he participated in that program, it would have reinforced the point made by Judge Crossley as to the serious harm occasioned by such offending. And yet within about 16 months of the expiration of the sentence imposed by Judge Crossley, the respondent engaged in similar offending against the victim. His high moral culpability takes his offending against her when she was only 11 into the upper range of seriousness for this kind of offending. The sentencing judge was incorrect to regard this offending as at ‘a medium level of severity’: the absence of the kind of aggravating features mentioned in Reid did not justify this categorisation.[28]
[28]Reid (a pseudonym) v The Queen [2014] VSCA 145; (2014) 42 VR 295. At least two points should be made about Reid. First, the focus of Priest JA was on the type of features that take offending into the worst category of offending, what might be described as the upper end of the upper range of seriousness. Second, Priest JA did not purport to provide an exhaustive list of the aggravating features that take offending into the upper range of seriousness.
As for the second and third group of offences, they are all serious offences but they are appropriately viewed as mid-range examples of such offences. In relation to the second group of offences, whilst they occurred over a period of several years and in the context of the earlier offending relationship with the same victim, the fact that the victim was by then an adult, aged between 18 and 21, prevents them falling in the upper range of seriousness.
As discussed earlier, an assessment of objective gravity of the offending bears upon the application of s 6E. In relation to first group of offences, the gravity of the offending alone made it inappropriate to order substantial concurrency. But that was not the only relevant consideration.
Given his priors and the diagnosis of paedophilia, the sentencing judge was understandably guarded about the respondent’s prospects of rehabilitation. She did not accept the psychologist’s assessment that there was only a moderate risk of the respondent re-offending, and was perfectly justified in not accepting it. Further, if the respondent does reoffend upon release, it is likely, given the diagnosis of paedophilia, that such reoffending will be perpetrated against the most vulnerable members of the community – young children.
Turning to the degree of concurrency ordered by the sentencing judge, the first point to note is that, in respect of each sentence, save for that on Charge 10, the degree of concurrency exceeded 80 per cent of the sentence. Of particular note are the orders for concurrency in respect of the first group of charges (Charges 1 to 5) which we view as falling within the upper range of such offences. The sentences on Charges 1 and 2 — indecent acts — were both made 100 per cent concurrent with the base sentence on Charge 4 (penile/vaginal penetration). The sentences on Charge 3 and Charge 5 — both incest counts, the former involving digital/vaginal penetration, the latter penile/vaginal penetration — were both made 86 per cent concurrent.
There is much force in the Directors submission that, if the respondent had not fallen to be sentenced as a serious sexual offender, he could not have done any better from the application of the totality principle. To quote RH McL v The Queen[29], the degree of concurrency ordered by the sentencing judge, particularly in relation to the first group of offences, ‘undermine[d] the legislative policy inherent in [s 6E] by applying the totality principle to the sentences as if that section was not on the statute book’.[30] For these reasons, the orders for cumulation were manifestly inadequate producing a total effective sentence that was wholly inadequate.
[29](2000) 203 CLR 452.
[30]Ibid 477 [76].
There is no reason in this case to exercise the residual discretion to dismiss the appeal even though both grounds of appeal are made out. At the plea hearing the prosecution drew the sentencing judge’s attention to the fact that the respondent fell to be sentenced as a serious sexual offender on each count. In that regard, the prosecution had done all that was required of it. The prosecution was entitled to assume that the sentencing judge was familiar with R v H McL, which was published in 2000, and Gordon (a pseudonym) v The Queen[31] which was published in 2013. Nothing more needed to be done by the prosecution as regards s 6E. It would have been improper at the further hearing before the sentencing judge on 8 April 2016 for the prosecution to revisit the issue: that hearing was convened by the sentencing judge solely to hear submissions as to how she might give effect to her original sentencing intention, which was frustrated by the complexities associated with sentencing in respect of state and federal charges.
[31][2013] VSCA 343.
Sentence
Having found that there was specific error which also resulted in a sentence that was manifestly excessive, we would resentence the respondent as follows:
Charge on Indictment Offence Maximum Sentence Cumulation 1 Indecent act with a child under 16 [Crimes Act 1958, s 47(1)] 10 years [Crimes Act 1958, s 47(1)] 3 months 1 month 2 Indecent act with a child under 16 [Crimes Act 1958, s 47(1)] 10 years [Crimes Act 1958, s 47(1)] 8 months 3 months 3 Incest (child of de facto)[Crimes Act 1958, s 44(2)] 25 years [Crimes Act 1958, s 44(2)] 4 years 2 years 4 Incest (child of de facto) [Crimes Act 1958, s 44(2)] 25 years [Crimes Act 1958, s 44 (2)] 58 months Base 5 Incest (child of de facto) [CrimesAct 1958, s 44(2)] 25 years [Crimes Act 1958, s 44 (2)] 4 years 3 years 6 Incest (step-child) [Crimes Act 1958, s 44(1)]
(Representative Charge)25 years [Crimes Act 1958, s 44(1)] 4 years 4 months 7 Incest (step-child) [Crimes Act 1958, s 44(1)]
(representative charge)25 years [Crimes Act 1958, s 44(1)] 4 years 4 months 8 Incest (step-child) [Crimes Act 1958, s 44(1)] 25 years [Crimes Act 1958, s 44(1)] 54 months 6 months 9 Use carriage service to access child pornography [Criminal Code Act 1995 (Cth), s 474.19] 15 years [Criminal Code Act1995 (Cth), s 474.19] 6 months Concurrent
(commenced 18 March 2016)10 Knowingly possess child pornography [Crimes Act1958, s 70(1)] 10 years [Crimes Act 1958, s 70(1)] 3 months 1 month 11 Knowingly possess child pornography [Crimes Act1958, s 70(1)] 10 years [Crimes Act 1958, s 70(1)] 2 months 1 month Total Effective Sentence: 11 years 6 months Non-Parole Period: 8 years 6 months Pre-sentence Detention Declared: 674 days 6AAA Statement: 15 years 6 months with non-parole period of 11 years 6 months. Other orders: Pursuant to s 6F of the Sentencing Act 1991, the respondent was sentenced as a serious sexual offender in respect of Charges 1-8, 10 and 11.
Pursuant to s 34 of the Sex Offenders Registration Act 2004, the respondent was placed on the sex offender register, with a reporting period of life.
Forfeiture order in respect of charges 10 and 11.
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