DPP v Howard

[2021] VSCA 298

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0043

DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
v
HECTOR HOWARD (a pseudonym)[1]	Respondent

[1]To ensure that there is no possibility of the identification of the victim of sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the respondent.

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JUDGES:	MAXWELL P, T FORREST and WALKER JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 October 2021
DATE OF JUDGMENT:	4 November 2021
MEDIUM NEUTRAL CITATION	[2021] VSCA 298
JUDGMENT APPEALED FROM:	[2021] VCC 354 (Judge Trapnell)

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CRIMINAL LAW – Director’s Appeal – Sentence – Sexual penetration of a child or lineal descendant – Involving a child in the production of child abuse material – Manifest inadequacy – Whether current sentencing practices involving pleas of guilty are of assistance in formulating sentence after trial – Sentence of nine years and seven months’ imprisonment with non-parole period of seven years manifestly inadequate given objective gravity and uplift called for in Dalgliesh – R v Verdins (2007) 16 VR 269, Director of Public Prosecutions v Dalgliesh (a pseudonym) [2016] VSCA 148 applied; Crimes Act 1958 ss 50C, 51B – Appeal allowed – Resentenced to 13 years’ imprisonment with non-parole period of 10 years.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Ms D I Piekusis QC, with Mr J Dickie	Ms A Hogan, Solicitor for Public Prosecutions
For the Respondent	Mr D A Dann QC, with Mr D J Carolan	Dribbin & Brown Criminal Law

MAXWELL P
T FORREST JA
WALKER JA:

1. On 12 December 2019, after a lengthy trial, a jury convicted the respondent of three charges of sexual penetration of a child or lineal descendant (charges 2, 3 and 4).[2]  The victim was his biological daughter.  He had previously pleaded guilty to a charge of involving his daughter in the production of child abuse material (charge 5).[3]  The respondent also pleaded guilty on 20 March 2020 to three transferred summary charges of contravening a family violence intervention order (‘FVIO’). 

   [2]Contrary to the Crimes Act 1958 s 50C (‘Crimes Act’).

   [3]Contrary to ibid s 51B.

1. The respondent was sentenced on 26 March 2021 as follows:

Charge on Indictment K10475684	Offence	Maximum	Sentence	Cumulation
2.	Sexual penetration of a child or lineal descendant	25 years	6 years	1 year
3.	Sexual penetration of a child or lineal descendant	25 years	7 years	Base
4.	Sexual penetration of a child or lineal descendant	25 years	6 years and 6 months	18 months
5.	Involving a child in the production of child abuse material	10 years	3 months	1 month
Related Summary Offences
6.	Contravention of a family violence intervention order	2 years	$300 fine	-
7.	Contravention of a family violence intervention order	2 years	$300 fine	-
8.	Contravention of a family violence intervention order	2 years	$300 fine	-

Total Effective Sentence:  9 years and 7 months’ imprisonment

Non-Parole Period:  7 years

Pre-Sentence Detention Declaration:  620 days

Section s 6AAA Statements: On charge 5:  4 months and 14 days’ imprisonment;  on summary charges 6, 7 and 8:  With conviction, a fine of $450 on each charge

Other relevant orders:  Sentenced as a serious sexual offender on charges 4 and 5. Pursuant to s 34 of the Sex Offenders Registration Act 2004, reporting for life

1. This is an appeal by the Director of Public Prosecutions (the ‘Director’) against the sentences imposed by his Honour.  The single ground of appeal is expressed as follows:

The individual sentences on each of charges 2–5, the orders for cumulation and the total effective sentence and non-parole period are each manifestly inadequate.

1. Manifest inadequacy is a difficult ground to establish.  Mere leniency is insufficient.[4]  The sentence must be wholly outside the range available in the legitimate exercise of the sentencing discretion.[5]  The appellant bears an onus of demonstrating that the alleged sentencing error is ‘clear and egregious’.[6]

   [4]DPP v Osborn [2018] VSCA 207, [3], [92] (Beach and Weinberg JJA).

   [5]          DPP v Karazisis (2010) 31 VR 634, 662–3 [127] (Ashley, Redlich and Weinberg JJA).

   [6]DPP v Torun [2015] VSCA 15, [56] (Whelan and Beach JJA, Ashley JA agreeing at [1]).

1. For the reasons that follow, we are satisfied that the Director has discharged that onus.  The sentence simply did not reflect the gravity of this appalling offending.  The appeal will be allowed and the respondent resentenced to 13 years’ imprisonment with a non-parole period of 10 years.

Circumstances of offending

1. The judge’s reasons for sentence are careful and comprehensive.  It is convenient to adopt his summary of the offending:

For the purposes of sentencing you, I accept the following facts in relation to the four indictment charges which are before me.

Megan Ramsey[7] is your biological daughter.

[7]A pseudonym.

You and Megan’s mother, Courtney Ramsey,[8] had been in a relationship.  Courtney cut all ties with you when Megan was aged 4.  When Megan was aged 14, she contacted you via Facebook [M]essenger.

[8]A pseudonym.

Megan subsequently met you and later your other children and wife.  Between August 2017 and March 2018, Megan spent regular time with you at your home and work and at her home, and there was contact between you and Megan via text and other messages.

Charge 2

On a date between 31 August 2017 and 30 November 2017, you sexually penetrated Megan’s mouth with your penis at your home.  You and Megan were at your home when, as Megan was washing her hands, she turned to see you with your pants down.  You told her to ‘suck you off’ and you grabbed her hair and pulled her down until she was kneeling on the floor in front of you.  You began to bob her head up and down on your penis until you ejaculated in her mouth.

Charge 3

On a date between 30 November 2017 and 13 March 2018, you penetrated Megan’s vagina with your penis at your workplace.  After you and Megan had exchanged text messages, you told Megan to travel to meet you at your workplace.  When Megan arrived, you took her to a first aid room and told her to lie on the bed.  She lay on the bed and you removed her top and began to massage her.  You grabbed Megan by the jaw and started to choke her.  She flipped around and you continued to choke her.  She passed out for a couple of seconds and when she woke up you were on top of her.  You penetrated Megan’s vagina with your penis.  You held her down on the bed by her shoulders and ejaculated in her vagina.

It is apparent from Megan’s description of this offence, which I accept, that you engaged in unprotected penile–vaginal sexual intercourse with her.  This is an aggravating circumstance, in the sense that it increases the objective gravity of your offending conduct in committing the crimes the subject of Charges 3 and 4, and it increases your moral culpability.  As is the serious non-sexual violence you perpetrated on Megan in the course of committing this offence, which resulted in her momentary loss of consciousness.

Charge 4

On a date between 30 November 2017 and 31 July 2018, you penetrated Megan’s vagina with your penis at her home.  You instructed her to go into her bedroom and lay down on the bed.  You took off your clothes and told Megan to take hers off, which she did.  You told her to lay face down on the bed.  You penetrated her vagina with your penis.  You reached your hand forward and gripped her hair and pulled her hair back.  You let go of her hair and pulled both of her arms behind her back and ejaculated inside her vagina.

Once again, it is apparent from Megan’s description of this offence, which I accept, that you engaged in unprotected penile–vaginal sexual intercourse with her on this occasion.  This is an aggravating circumstance, as is the non-sexual violence you perpetrated on Megan in the course of committing this offence.

Megan made her first complaint on 25 September 2018 and a family violence intervention order was obtained against you the next day.  Megan participated in a VARE interview on 22 October 2018, which implicated you in the present offences.[9]

[9]DPP v Howard (a pseudonym) [2021] VCC 354, [5]–[14] (Judge Trapnell) (citations omitted) (‘Reasons’).

1. We pause this narrative to observe that these three charges of sexual penetration of a child or lineal descendant were single incident charges, rather than representative or course of conduct charges.  Evidence of other acts of a sexual nature, including penetration, was admitted in proof of the three indicted charges, but formed no part of them. 

1. The judge continued in his factual summary:

Charge 5

Charge 5 is a rolled-up charge comprising identifiable discrete criminal acts occurring on 16 and 20 January 2019.  In sentencing you on this charge, I must consider all the circumstances of the offence and your circumstances, and the totality of the harm described in the charge.

Between 13 January 2019 and 21 January 2019, you engaged in a series of text messages with Megan in which you intentionally involved your child in producing child abuse material, consisting of images of her genital region and images of her naked and engaged in a sexual pose.  The five images were sent by Megan to you at your request on 16 and 20 January 2019.

This contact was initiated by Megan after you became aware she had made allegations against you that you had sexually assaulted her.  The messages were in part initiated by Megan because of perceived police inaction regarding her complaint and as part of an attempt by Megan to get you to admit your sexual conduct and your perception of having had a sexual relationship with her.

Within a short period, you engaged in conduct that involved your child in the production of child abuse material.  For example, you sent Megan a request to send you a ‘pic after cum of your hot pussy’.  When Megan replied she had some photos she could send, you replied, ‘Shoot.  I will have geez.’  Megan then sent you sexualised photographs of herself.

You then sent Megan a message saying, ‘Send a deep pic of your clit so I can cum.’  Megan sent a photograph of her genitals, to which you responded that it was the ‘best pic of all time omg pure porn’.  You later encouraged Megan to delete the messages.

The relevant photographs are blacked out in the trial exhibit because they constitute child abuse material.  Nonetheless, in assessing the gravity of your offending conduct, I have had regard to the description of the photographs contained in Plea Exhibit P4.  They have not been officially categorised in accordance with the Interpol Baseline 4 Tier Categorisation System (IB4TCS) or the Australian National Victim Identification Library (ANVIL) classifications.  However, from the descriptions of the images, I sentence you on the basis they fall in the lowest ANVIL category, being ‘Level 1 — Depictions of children with no sexual activity’.

An aggravating feature of Charge 5 is that at the time of committing the offence a family violence intervention order was in place, which your offending conduct breached.  However, since you have pleaded guilty before me to three specific related summary offences in relation to these breaches, you will not be doubly punished by the imposition of an increased penalty on Charge 5.  Instead, you will be separately sentenced on Summary Charges 6, 7 and 8.

Other relevant evidence

On 19 February 2019 you were arrested and interviewed in Queensland, and eventually extradited to Melbourne.  On arrival, you were remanded in custody.

About a month after committing the offence in Charge 2, you started to threaten Megan.  You said that if she ever left you her family ‘would be in trouble’ and you would hurt Megan’s cat called ‘Tina’.[10]  Megan gave evidence, which I accept, that you said:  ‘You’ll never get out of this … and your family will pay if you ever leave me.’  This caused Megan to fear repercussions for her family if she did not go along with your demands.  You also told Megan that if she went to the police, they would not believe her, and they would think she was ‘disgusting’.

During your evidence before the jury in your trial you said Megan was driving the sexual relationship and she was threatening you with blackmail.[11]

[10]A pseudonym.

[11]Reasons [15]–[24] (citations omitted).

1. The summary offences occurred after May 2018.  The respondent and his wife had moved to Queensland with one of the respondent’s other children.  As a result of a complaint made by Ms Ramsey to, firstly, her cousin, and then to police, the respondent was the subject of a FVIO.  This order was served on the respondent in early October 2018.  The respondent was thus restrained from communicating with Ms Ramsey.  On 13, 15 and 21 January 2019 the respondent, in contravention of the FVIO, communicated by text message with the complainant.  The content of these messages and the complainant’s responses is set out at [16]–[21] of the judge’s reasons for sentence, which passage dealt with charge 5 — involving a child in the production of child abuse material.  In his reasons, the judge was astute to avoid double punishment between charge 5 and the summary charges.

The plea hearing

1. The plea hearing took place on 20 March 2020.  A document titled ‘Summary of Defence Plea’ was tendered on the plea.  It set out the following:

·The respondent was then 48 years old (born on 25 January 1972).

·His parents are alive;  he has two brothers and two sisters.

·He was educated at Tottenham Technical School and then did ‘sheet metal work’ at Footscray TAFE College.

·He has worked in labouring and warehouse-type jobs since then.  Recently, he has been a warehouse operator in Townsville.

·He and his wife, Connie,[12] married in 1990.  They have four children aged 26, 25, 20 and eight.

·He commenced a relationship with the complainant’s mother in about 2000.  The complainant was born in 2002.

·He resumed his relationship with Connie before the complainant was born.

·He was arrested in Townsville in February 2019 and remanded in custody.  He was bailed in July 2019 and returned to custody after the jury verdict on 12 December 2019.

·His prior convictions are not directly relevant.

·In relation to charge 5, he made admissions and indicated a preparedness to plead guilty at an early stage.

·He has an insight into his alcohol addiction and has completed programs while in custody.  He is capable of rehabilitation.

·He has a gambling addiction and has had severe emotional conflict in relationships.

[12]A pseudonym.

1. During the oral plea hearing, the respondent tendered a report prepared by Mr Bernard Healy, clinical psychologist.  The respondent submitted that factors in his upbringing may explain ‘his lack of judgment in committing these offences’:

·The respondent abused alcohol from at least 2011–2019, and during the period of offending.

·He was sexually abused by one of his brothers (as were his two sisters) between the ages of 11 and 13.  This was not reported to police.

·He was bullied and rejected at school.

·He sustained head injuries in three road accidents when he was aged 10, 13 and in his 20s.  After the third accident he was admitted to Footscray Psychiatric Hospital and prescribed major anti-psychotic medication.

·There may be some subtle higher-level cerebral impairment.

·He has an elevated level of depression, probably longstanding.

·He has a full-scale IQ of 85 and is of below-average intellectual capacity.

·He has diminished powers of delayed recall.

1. In the plea hearing the respondent essentially repeated these written submissions with some expansion.  The respondent’s work history has been stable and consistent.  His prior convictions were old, largely assault-related, and concerned offences committed while he was intoxicated.  One prior conviction in 1998 of fraudulently obtaining a Commonwealth benefit was jointly committed with his wife and both served three months’ imprisonment as a result.  The respondent’s counsel conceded that there was no diagnosis of traumatic brain injury in Mr Healy’s report, or of any mental illness, or personality disorder.

1. Towards the end of the hearing on 20 March 2020, counsel for the respondent requested an adjournment to enable his solicitors to engage a neuropsychologist in order that the respondent could be tested for an acquired brain injury.  On the further plea, reports were tendered from Dr Martin Jackson, neuropsychologist, and Dr Danny Sullivan, psychiatrist.  Counsel for the respondent contended that the only Verdins factor that seemed to be engaged was that of increased ‘custodial hardship’.[13]  The respondent’s sister gave evidence about the custodial difficulties created by the then evolving pandemic.  Counsel contended that expressions of remorse described in Dr Sullivan’s report ought be accepted by the judge.

   [13]R v Verdins (2007) 16 VR 269, 276 [32] (Maxwell P, Buchanan and Vincent JJA) (‘Verdins’).

1. In written plea submissions, the prosecution contended that the respondent’s offending was ‘extremely serious, involving a high degree of moral culpability’.  It was submitted that incest is an ‘inherent crime of violence which always involved physical subordination, even when there are no overt features of physical abuse’, and in oral submissions the prosecutor contended that, due to the nature of the offence, it should be accepted that, ‘without any evidence of any [specific] impact’, the crime ‘must have an impact on the person [who is] affected’.

1. Nevertheless, the victim impact statements of the complainant and her mother were tendered on the plea.  These, it was submitted, ‘attest[ed] to the substantial and ongoing impact of the crimes’ on both.  In discussion at the plea, it was conceded that, given the complainant’s existing mental health struggles, including social anxiety and self-harming, it was ‘difficult to disentangle exactly’ the impact of the offending itself.  It was submitted, however, that the complainant’s ‘particular vulnerability’ (comprising both her mental health issues and her eagerness to establish a relationship with her father and siblings) and the respondent’s clear knowledge of this, were aggravating features of this offending.  It was submitted that the respondent exploited this vulnerability, repeatedly and over an extended period.  The complainant had shared with the respondent her excitement at the prospect of establishing a relationship with him and siblings, and also that she had previously been sexually abused and suffered from anxiety.  The respondent threatened to destroy Ms Ramsey’s chance to establish these familial relationships and to harm others to whom she was close if she were to tell anyone about his abuse of her.  He manipulated her by encouraging her to see their relationship as romantic, and by denigrating her appearance, knowing that she struggled with body image issues.

1. The respondent’s offences of incest (charges 2, 3 and 4) were further aggravated by the following features:

·The offending was accompanied by violence, in particular with respect to charge 3, when the respondent choked the complainant.

·The respondent ejaculated inside the complainant’s mouth and vagina, and did not wear a condom.  He exposed her to the risk of pregnancy (which, he told her, he wanted to happen) and to sexually transmitted disease.

·The respondent, to ‘a degree’ organised and planned his offending, using different locations and adapting as circumstances changed. 

1. In relation to charge 5 (involving a child in the production of child abuse material), the prosecutor submitted that the respondent’s offending was aggravated by the fact of its having taken place after the respondent was aware that the complainant had made allegations to police that he had sexually assaulted her, and while a FVIO was in place against him.

1. It was conceded that the respondent was entitled to some discount for his plea of guilty to charge 5.  However, it was submitted that this should be limited:  it was not an early plea, and it could only be viewed as ‘very limited, if any, evidence of remorse or insight into his offending’, given the evidence the respondent gave with respect to this conduct, seeking to place blame for it on the complainant.

1. It was submitted that specific deterrence was a relevant sentencing consideration in the respondent’s case.  His prospects of rehabilitation must be affected by his ‘ongoing, persistent offending’ and his continued denial of charges 2, 3 and 4.  It was conceded, however, that, while the respondent did have a criminal history, this did not include sexual offending.

1. It was submitted that just punishment and denunciation had particular importance in this case given the gravity of the offending and the respondent’s high moral culpability.

1. The prosecutor submitted that current sentencing practices was a relevant factor, but just one of a number of such factors to be considered in the sentencing calculus.  The judge was pointed to the declaration by this Court in Director of Public Prosecutions v Dalgliesh (a pseudonym)[14] (which was later affirmed by the High Court) that sentences for incest offences should be increased.[15]  While the prosecution submitted several recent cases in which sentence was passed for this kind of offending in order to assist the Court to some extent in identifying an appropriate range,[16] it was submitted that there was a lack of directly comparable cases to aid this exercise.  In particular, all of the cases cited by the prosecutor involved pleas of guilty.

   [14][2016] VSCA 148 (‘Dalgliesh’).

   [15]Ibid [128]–[131] (Maxwell ACJ, Redlich and Beach JJA).

   [16]Nelson (a pseudonym) v The Queen [2020] VSCA 36 (‘Nelson’);  DPP v Shearer (a pseudonym) [2019] VSCA 47 (‘Shearer’);  DPP v Tewksbury (a pseudonym) [2018] VSCA 38 (‘Tewksbury’);  Grantley (a pseudonym) v The Queen [2018] VSCA 112.

1. Other matters that, it was submitted, the judge must take into consideration were:

·The maximum penalty for each of charges 2, 3 and 4 was 25 years’ imprisonment,[17] and the maximum penalty for charge 5 was 10 years’ imprisonment.[18]

·Mandatory registration and reporting obligations under the Sex Offenders Registration Act 2004 applied to the respondent for life.[19]

·His Honour had to impose sentences of imprisonment on charges 2, 3 and 4, and a combination sentence was not open to him, pursuant to s 5(2G) of the Sentencing Act 1991 (‘Sentencing Act’).

·Standard sentencing provisions did not apply, the jury’s verdicts not having specified that any of the offending occurred after the commencement of those provisions on 1 February 2018.[20]

·The respondent was to be sentenced as a serious sexual offender on charges 4 and 5, meaning that any term of imprisonment imposed on those charges must, unless otherwise directed by the Court, be served cumulatively upon the other sentences of imprisonment.[21]  Although the power was enlivened, the prosecution did not ask his Honour to impose a sentence longer than would be proportionate to the objective gravity of those offences in order to achieve the principal purpose of community protection.[22]

[17]Crimes Act s 50C(1).

[18]Ibid s 51B(1).

[19]See Sex Offenders Registration Act 2004 s 34(1)(c).

[20]Ibid ss 5A–5B, as inserted by Sentencing Amendment (Sentencing Standards) Act 2017.

[21]Sentencing Act s 6E.

[22]Ibid s 6D.

Judge’s reasons for sentence

1. The judge took into account the victim impact statements provided by the complainant and her mother.  The complainant’s statement disclosed that her self-harming had escalated during the offending, leaving her with significant scarring and nerve damage.  The complainant also reported contemplating suicide during the offending.[23]  Ongoing psychological effects of the offending included post-traumatic stress disorder, depression and anxiety, as well as fear of leaving her home and experiencing panic attacks in public areas.[24]

   [23]Reasons [26].

   [24]Ibid [27].

1. The complainant was unemployed at the time of sentence, which she attributed to self-consciousness about her physical scarring and anxiety.  She struggled to maintain friendships ‘as she has a strong distrust for people outside her family and struggles to feel empathy’.[25]

   [25]Ibid [27]–[28].

1. The judge noted that the complainant’s mother’s victim impact statement described the strain the offending had placed on her relationship with her daughter.  The complainant’s mother also experienced ongoing psychological impacts of the offending, including anxiety and depression and daily intrusive thoughts that she had failed to protect her daughter.

1. Noting the Court of Appeal’s observations in Dalgliesh that ‘the absolute prohibition on sexual activity with a child is “founded on a presumption of harm”’,[26] and in R v KHB[27] that it is ‘a well-known fact that young victims of incest carry the scar for their lives’,[28] his Honour said:

Accordingly, I take into account the relevant matters regarding the impact of your crimes on [the complainant] and [her mother] in sentencing you.  Clearly, your offending had had a profoundly traumatic effect upon [the complainant] and a serious impact upon her mother.[29]

[26]Dalgliesh [2016] VSCA 148, [47] (Maxwell ACJ, Redlich and Beach JJA), quoting Clarkson v The Queen (2011) 32 VR 361, 364 [3] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA).

[27][2004] VSCA 219.

[28]Ibid [105] (Gillard AJA).

[29]Reasons [34].

1. In assessing the seriousness of the offending, the judge noted the maximum penalty for the offence of sexual penetration of a child or lineal descendant (charges 2, 3 and 4) carries a maximum penalty of 25 years’ imprisonment and that this is the highest fixed maximum penalty in the criminal calendar.  This reflected, his Honour stated, the seriousness with which the legislature, and by extension, the community, regards sexual crimes against children.[30]  In this context, his Honour regarded charges 2, 3 and 4 as being of mid-range seriousness, though his Honour also described the conduct subject of those charges as ‘truly appalling’.[31]

   [30]Ibid [35].

   [31]Ibid [37].

1. His Honour noted the sentencing uplift called for in respect of incest offences by this Court in Dalgliesh.[32]

   [32]Ibid [48], quoting Dalgliesh [2016] VSCA 148, [131].

1. In regard to charge 5 (involving a child in the production of child abuse material), the judge noted the maximum penalty of 10 years.  His Honour considered that this was a serious example of a serious offence.  His Honour again noted the respondent’s knowledge that the complainant was ‘particularly vulnerable’.  He described the respondent’s conduct as ‘opportunistic and abhorrent’.[33]

   [33]Reasons [38].

1. The judge noted that any sexual offending against children is ‘regarded by courts as extremely serious and usually calls for the imposition of condign punishment’,[34] and in particular in cases of incest, quoting expressions of this condemnation from R v Sposito,[35] Dalgliesh,[36] and Director of Public Prosecutions v Walsh (a pseudonym).[37]

   [34]Ibid [39].

   [35](Victorian Court of Appeal, Marks, Hampel and McDonald JJ, 8 June 1993) 4–6.

   [36]Dalgliesh [2016] VSCA 148, [43].

   [37][2018] VSCA 172, [1] (Maxwell P and McLeish JA).

1. The judge stated that general deterrence, denunciation and just punishment were to be given ‘significant weight’ in his sentencing exercise,[38] stating that general deterrence and denunciation in particular ‘must loom large in [his] instinctive sentencing synthesis’.[39]  The offending was aggravated by the ‘grave breaches of trust’ it involved, in respect of both the complainant and her mother, and the respondent’s ‘profound disregard of [his] parental responsibilities’.[40]  The conduct the subject of charge 4 took place in the complainant’s home ‘where [the respondent] had a duty to protect her and she had a right to feel safe’.[41] 

   [38]Reasons [43].

   [39]Ibid [165].

   [40]Ibid [44].

   [41]Ibid [45].

1. Further matters of aggravation were that the respondent showed no remorse, maintaining his denial of the conduct the subject of charges 2, 3 and 4, blaming the complainant, and claiming that she had threatened to blackmail him and destroy him and his family.  This was evidence, in the judge’s view, of a complete lack of insight into the reasons for his offending.[42]

   [42]Ibid [46].

1. The judge also took into account the following aggravating features:

·The respondent emotionally manipulated the complainant, in turn encouraging her to view their relationship as romantic, and ‘using what the prosecutor described as “cruel and derogatory language about her appearance”, despite knowing she suffered from “body image problems”’.[43] 

·Each of charges 2, 3 and 4 involved ‘non-sexual violence’, including choking.

·The respondent ejaculated in the complainant’s mouth (charge 2) and in her vagina (charges 3 and 4), and did not use a condom, putting her at risk of pregnancy or sexually transmitted disease.[44]

·The respondent’s offending was not spontaneous, involving ‘organisation, planning and grooming’.[45]

[43]Ibid [50].

[44]Ibid [51].

[45]Ibid [52].

1. The judge took into account protection of the community,[46] and noted that, in respect of charges 4 and 5, for which the respondent fell to be sentenced as a serious sexual offender, he was compelled to regard community protection as the principal purpose for the sentences on those charges. While this left it open to his Honour to impose a sentence longer than would be proportionate to the objective gravity of those offences, he indicated that we would not do so given that the prosecution had not sought it.[47]

   [46]Ibid [47].

   [47]Ibid [167]. See Sentencing Act pt 2A, sch 1 cll 1(a)(iv), 1(a)(xvih).

1. The judge summarised the respondent’s personal circumstances.  In addition to those recounted at [10] of these reasons, his Honour noted:

·The respondent has little contact with his father, who was a heavy drinker and emotionally and physically abusive to him as a child, and no contact with the brother who sexually abused him.

·His mother and sisters were supportive of him, and his sisters provided outlines of the respondent’s personal history and one of them also a character reference.

·The respondent still blamed himself for his role, at the age of eight, in a motorcycle accident that resulted in his brother, Simon, spending many years in a coma and eventually dying.

·His school years were difficult, repeating Year 6 and attending two different secondary schools, both of which expelled him.  He was ‘often in trouble at school and [was] bullied because of [his] impoverished home life and poor academic skills’.

·He completed a two-year apprenticeship in sheet metal and has had a good work history which ‘augurs well for [his] future employment’.

·He has had a ‘turbulent’ relationship with his wife, Connie, including some separations, and at least one assault and ‘controlling behaviour’ on the respondent’s part.  Despite this history, Connie remained supportive of him.

1. His Honour took into account the respondent’s mental health, and four reports, authored by Mr Bernard Healy, consultant clinical psychologist, Mr Martin Jackson, consultant clinical neuropsychologist, and Dr Danny Sullivan, consultant forensic psychiatrist.  On the basis of these reports, his Honour found that only Verdins principle 5 was engaged in the respondent’s case, and stated that he would accordingly ‘make an appropriate allowance for the added burden of custody on you by reason of your mental health conditions, in addition to an allowance for increased custodial hardship caused by COVID-19 restrictions’.[48]

   [48]Ibid [118].

1. The judge accepted that the respondent had no relevant, and no recent, prior convictions.[49]

   [49]Ibid [80].

1. Other matters that the judge accepted had some mitigating impact included:

·The respondent’s plea of guilty in respect of charge 5.  This had entitled the respondent to a utilitarian benefit and indicated an acceptance of responsibility for that offence.[50]  His Honour noted, however, that, viewed alongside other evidence of the respondent’s conduct, including his continued denial of his other offending conduct and his blaming of the complainant for the offending that he did admit, the plea did not demonstrate true contrition or remorse ‘other than what is to be inferred from the plea itself’.[51]

·The respondent’s 620 days in custody in remand under the increased hardship posed by COVID-19 conditions.

·The burdensome effect that the COVID-19 pandemic would have on the respondent’s future incarceration.[52]

·The respondent’s undertaking of courses and treatment programs, including for alcohol addiction, whilst in custody, as well as his employment making car number plates six or seven days per week.[53]

·The 15-month delay between verdict and sentence.  This was a ‘significant mitigating circumstance’, to be given more weight because it was not due to any fault of the respondent’s.[54]

·The respondent’s disadvantaged upbringing.  The judge found that this reduced the respondent’s moral culpability to a limited extent.[55]

[50]Ibid [127]–[128].

[51]Ibid [129].

[52]Ibid [152].

[53]Ibid [136]–[137].

[54]Ibid [148], applying Rodriguez v DPP (Cth) (2013) 40 VR 436, 445–6 [36]–[41] (Warren CJ and Redlich JA).

[55]Reasons [155].

1. The judge assessed the respondent’s prospects for rehabilitation as ‘guarded’, based on his apparent lack of insight into and failure to take responsibility for his offending, continued denial of charges 2, 3 and 4, and persistent offending even after moving interstate.[56]  The respondent’s prospects for rehabilitation were also diminished, in the judge’s view, by his ‘marked tendency to act impulsively without consideration of consequences’.  This, the judge stated, gave added weight to specific deterrence and protection of the community as factors in the sentencing exercise.[57]

   [56]Ibid [139]–[140].

   [57]Ibid [141].

1. The judge had regard to current sentencing practices, though noted that this was only one of a number of relevant sentencing considerations.[58]  His Honour noted the difficulty of gleaning any useful ‘yardstick’ as to the appropriate sentencing range from other cases of incest as those generally involved course of conduct or representative charges, unlike the present case.[59]

   [58]Ibid [157].

   [59]Ibid [159].

1. The utility of other incest cases in gleaning current sentencing practices was further affected by the respondent’s plea of not guilty to charges 2, 3 and 4.  While the judge acknowledged that he could not impose harsher sentences on those charges because of those pleas, they distinguished his own sentencing task from those in most other incest cases:  ‘I must take account of the fact that many incest cases are resolved by guilty pleas and this is reflected in the sentences imposed in those cases’.[60]

   [60]Ibid [162].

1. Finally, the judge took into account the principle of totality.  His Honour stated that the sentence and orders for cumulation would be calculated to reflect the ‘degree of commonality’ between the ‘discrete offences’ forming ‘connected parts of sexual offending … over a relatively short period’.[61]

   [61]Ibid [174].

This appeal

1. The appellant accepted that his Honour’s reasons were conscientious and comprehensive.  The thrust of her submissions was directed at the seriousness of the offending.  The complainant was a highly vulnerable 14-year-old child who, for the first time in her life, had established a relationship with her biological father.  Within a month, he was sexually violating her.  The appellant took us through the circumstances of the offending and highlighted features of aggravation, including the violence of sexual penetration of a child overlaid with physical violence at times during those acts.

1. The appellant further contended that current sentencing practices were of limited assistance as ‘no directly comparable cases were readily identifiable’, and submitted that the sentences imposed on charges 2, 3 and 4 were the sorts of sentences imposed where there was a guilty plea and the associated substantial discount.  The appellant directed us to Nelson, Shearer and Tewksbury. In oral submissions, the appellant eschewed any reliance on s 6AAA declarations as providing assistance in establishing any sentencing range in cases where a plea of not guilty had been maintained at trial.

1. Insofar as charge 5 was concerned, the appellant submitted that this offence took place in January 2019, months after the incest offences and well after a FVIO had been imposed.  This was an aggravating factor in the manufacturing of child pornography charge, as was the fact that the subject of that pornography was the respondent’s daughter.  This was a serious example of this offending and the appellant submitted that the sentence of three months’ imprisonment was manifestly inadequate.

1. The appellant conceded that delay was a relevant factor to be taken into account in the respondent’s favour, as was the increased burden of imprisonment arising from COVID-19.  The appellant also accepted that Verdins principles 5 and 6 were properly engaged and weighed in the respondent’s favour.

1. The respondent agreed that the judge’s sentencing remarks were thorough and careful and noted that there was no complaint of specific error.  He submitted that the judge identified all relevant aggravating factors and plainly took them into account.  He further submitted that the judge correctly identified general deterrence, specific deterrence, community protection and just punishment as relevant to the sentencing exercise;  the respondent also submitted that the judge’s expression that the offending was ‘mid-range’ had not been argued to be a specific error and the Court ought exercise ‘some care’ when considering his Honour’s use of that term.  In discussion, the respondent accepted that, if this Court were to conclude that an increase in sentence was justified, we would not be constrained by the judge’s use of that term.  The respondent’s senior counsel sensibly and realistically conceded that this was ‘terrible offending’.

1. It was then submitted that his Honour appropriately catalogued the factors said to operate to mitigate the sentence to be imposed.  Charges 2, 3 and 4 were three discrete offences, not three rolled-up offences or three representative counts;  the respondent has a disadvantaged upbringing which the judge accepted moderated his moral culpability to some extent;  Verdins principle 5 was engaged and the judge accepted that in this case it was significant.  Delay also was a significant aspect of this case.  For reasons beyond the respondent’s control he was remanded in custody for over 12 months before sentence, and during this time his mental health declined substantially.  The judge also took account of the COVID-19 restrictions and related hardships during the respondent’s time in custody.  Further, the judge accepted that the respondent had undertaken some courses whilst in custody, which informed his prospects for rehabilitation.

1. On the question of current sentencing practices, the respondent submitted that the cases referred to by the appellant do not assist in determining a sentencing range.  The respondent took the Court to Shearer, Tewksbury, Nelson, Carter (a pseudonym) v The Queen[62] and Thrussell v The Queen,[63] and contended that ‘the impression gained from the “comparable cases” cited is that the sentences imposed are quite consistent with current sentencing practice’.

   [62][2018] VSCA 88.

   [63][2017] VSCA 386.

1. As a fallback position, the respondent contended that the Court, if it were satisfied of manifest inadequacy, ought exercise its residual discretion not to intervene in the original sentence.  There were said to be two reasons to justify this:  first, if any ultimate uplift of the total effective sentence were to be marginal, this may amount to ‘tinkering’;  and, secondly, the delay in the hearing of this appeal (six months) may well have further damaged the respondent’s already precarious mental health.

Consideration

1. We are satisfied that the total effective sentence and each individual sentence, are manifestly inadequate, as are the orders for cumulation.  Even giving full weight to the factors operating to mitigate them, those sentences simply do not reflect the objective gravity of this offending.  Further, we are of the view that the sentences on charges 2–4 do not respond to the High Court’s strong affirmation in Dalgliesh of this Court’s equally strong statement that current sentencing practices for the offence of incest did not reflect the objective gravity of this kind of offending or the moral culpability of those offenders.[64]

   [64]DPP v Polat (a pseudonym) [2020] VSCA 174, [34] (Maxwell P and Beach JA).

1. We do not propose to repeat the appalling circumstances that surrounded this offending in any detail.  As we have noted, the respondent’s very experienced senior counsel on this appeal frankly and sensibly accepted that this was ‘terrible offending’.  The respondent knew his young teenage daughter had come to him, for the first time in her life, seeking refuge from a turbulent, abusive outside world.  He groomed her, courted her and, within a month, he was violating her. 

1. The respondent knew of her vulnerability and her propensity to self-harm.  Not only did he engage in unprotected sex with this child (with all the attendant risks), on occasions he accompanied those acts with physical violence.  He grabbed her hair and pulled her head back while penetrating her from behind.  On another occasion he choked her to the point of passing out and then engaged in penile–vaginal sex.  He taunted her, called her a ‘slut’ and a ‘whore’ and told her he was trying to impregnate her.  And then, months later, after the imposition of a FVIO, he procured her to send him graphic, sexualised photographs of her genital area. 

1. This was a continuing, shameless and reprehensible breach of the trust that should exist between every parent and child. 

1. Viewed against the objective gravity of the offending, the factors relied upon in mitigation (set out at [36]–[38] of these reasons) have a limited capacity to ameliorate the appropriate sentence, and certainly not to such an extent as to bring the sentences imposed, or the total effective sentence, within range.

1. Whilst current sentencing practices are a factor to be considered in the sentencing calculus, in this case we have found them to be of little assistance.  In short, examples, ‘post-Dalgliesh’, of sentences imposed for serious offending of this type after a trial are almost non-existent. There is insufficient data to establish sentencing practice in cases where sentence is imposed for such heinous conduct and after conviction at trial. In written submissions the appellant contended that we might look at s 6AAA[65] statements to assist in the establishment of a range. In discussion with senior counsel for the appellant we indicated the limitations of s 6AAA statements and our dissatisfaction with this approach. The submission was sensibly abandoned.

   [65]See Sentencing Act s 6AAA.

1. The appeal must be allowed, the sentences set aside and the respondent will be resentenced by this Court.

Resentence

1. It is unnecessary to restate our conclusions on the objective seriousness of the offending.  We accept that there are factors that operate to mitigate what must be a very long sentence.  In short, those factors include:

·The plea of guilty to charge 5.

·The respondent’s disadvantaged upbringing, which operates to moderate (to some degree) his moral culpability and the need for specific and general deterrence.

·The respondent’s limited criminal history.

·The engagement of Verdins principles 5 and 6.[66]  Whilst on the plea only Verdins principle 5 was pressed, we consider principle 6 is engaged as well, given the evidence of the respondent’s deteriorating mental health since his incarceration.

·The unusual delay from plea to sentence, with the attendant anxiety.

·The respondent’s small steps towards rehabilitation whilst in custody.

[66]Verdins (2007) 16 VR 269, 276 [32] (Maxwell P, Buchanan and Vincent JJA):

5.The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence on the offender than it would on a person in normal health.

6.Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.

1. As we have stated, we will allow the appeal.  The sentences of imprisonment imposed on the respondent on charges 2, 3, 4 and 5 in the County Court on 26 March 2021 are set aside and in their place the respondent will be resentenced as follows:

(a)               Charge 2 — 9 years and 6 months’ imprisonment

(b)              Charge 3 — 9 years and 6 months’ imprisonment

(c)               Charge 4 — 10 years and 6 months’ imprisonment

(d)              Charge 5 — 1 year’s imprisonment

1. Charge 4 will be the base sentence.  One year of the sentences imposed on each of charges 2 and 3 will be cumulative on the base sentence and on each other.  Six months of the sentence imposed on charge 5 will be cumulative on the sentences imposed on charges 2, 3 and 4.  The total effective sentence will therefore be 13 years’ imprisonment.  We will set the minimum non-parole period at 10 years.  We will declare pre-sentence detention to be 843 days.  The respondent will be resentenced as a serious sexual offender on charges 4 and 5.  All other orders made in the County Court on 26 March 2021 in this matter, including the sentences on the related summary offences, will be affirmed.

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