DPP v HPW
[2011] VSCA 88
•5 April 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No S APCR 2010 0317
| DIRECTOR OF PUBLIC PROSECUTIONS | Appellant |
| V | |
| HPW | Respondent |
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| JUDGES | NEAVE, MANDIE and TATE JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 10 March 2011 |
| DATE OF JUDGMENT | 5 April 2011 |
| MEDIUM NEUTRAL CITATION | [2011] VSCA 88 |
| JUDGMENT APPEALED FROM | DPP v HPW (Unreported, County Court of Victoria. Judge Shelton, 17 August 2010). |
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CRIMINAL LAW – Crown Appeal – Sentence – Respondent pleaded guilty to two representative charges of incest, three other charges of incest, one representative charge of indecent act with child under 16 and two other charges of indecent act with child under 16 – Sentencing judge found causal connection between respondent’s Asperger's Syndrome and offending – Whether that finding open on the evidence – Whether sentence manifestly inadequate – Whether appropriate orders for cumulation made – Appeal allowed – Error in finding of causal connection – Sentence manifestly inadequate – Error in cumulation – Respondent re-sentenced.
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| Appearances: | Counsel | Solicitors |
| For the Appellant | Mr J W Rapke QC and Mr P B Kidd | Mr C Hyland, Solicitor for Public Prosecutions |
| For the Respondent | Mr M J Croucher and Ms D M New | Cameron Lawyers |
NEAVE JA:
I agree with Tate JA that the appeal should be allowed and that the respondent should be re-sentenced in the manner she proposes. I would add only, that even if there had been evidence before the sentencing judge that the respondent had misread ‘cues’ from his young daughter because of his Asperger’s Syndrome, I doubt very much whether this could be regarded as reducing his culpability for acts of incest or indecent assault.
MANDIE JA:
I agree with Tate JA.
TATE JA:
The Director of Public Prosecutions (‘DPP’) has brought this appeal against the sentence imposed upon the respondent, ‘HPW’, under s 287 of the Criminal Procedure Act 2009 on three grounds, the first alleging specific error, the second based on a claim of manifest inadequacy and the third based on the failure of the sentencing judge to make appropriate orders for cumulation. Here, the Crown relies principally upon the complaint that the sentence was manifestly inadequate, a ground which falls under the last category of case identified in the classification of appellable errors made in the exercise of the sentencing discretion in House v The King,[1] namely, where,[2]
although the nature of the [specific] error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
[1](1936) 55 CLR 499.
[2]Ibid, 505. See also Dinsdale v The Queen (2000) 202 CLR 321, 324-5 [3]-[4]; York v The Queen (2005) 225 CLR 466, 468-9; Carroll v The Queen (2009) 83 ALJR 579.
More particularly, the grounds of appeal were as follows:
GROUND 1 The sentencing judge erred in finding a causal connection between the respondent’s Asperger’s Syndrome and the offending in question.
GROUND 2 The sentence imposed on each count of Indictment No. Y03530942, the total effective sentence and the non-parole period fixed are manifestly inadequate in all the circumstances.
GROUND 3 The sentencing judge erred in failing to make any order as to cumulation in respect of charges 3, 4, 5, 6, 7 and 8.
Indictment No Y03530942, referred to in the second ground of appeal, preferred five charges of incest and three charges of indecent act with a child under 16 years, to which the respondent pleaded guilty. He was sentenced as follows:
Charge Offence Maximum Sentence Cumulation 1 Incest 25 years’
imprisonment
4 years’
imprisonment
Base 2 Incest 25 years’
imprisonment
4 years’
imprisonment
3 years
6 months
3 Incest 25 years’
imprisonment
3 years’
imprisonment
Nil 4 Incest 25 years’
imprisonment
3 years’
imprisonment
Nil 5 Incest 25 years’
imprisonment
3 years 6 months’ imprisonment Nil 6 Indecent act
with child
under 16
10 years’
imprisonment
1 year 3 months’ imprisonment Nil 7 Indecent act
with child
under 16
10 years’
imprisonment
1 year 3 months’
imprisonment
Nil 8 Indecent act
with child
under 16
10 years’
imprisonment
1 year 2 months’
imprisonment
Nil
The sentencing judge imposed a total effective sentence of seven years and six months’ imprisonment, with a non-parole period of five years and six months. The sentencing judge directed that 42 months of the sentence imposed on Charge 2 be served cumulatively upon the sentence imposed on Charge 1. He also directed that three years of the sentence imposed on Charge 3, three years of the sentence imposed on Charge 4, 42 months of the sentence imposed on Charge 5, 15 months of the sentence imposed on Charge 6, 15 months of the sentence imposed on Charge 7, and 14 months of the sentence imposed on Charge 8 be served concurrently upon each other and upon the sentence imposed upon Charge 1.
Charges 1, 2 and 8 were representative charges.
Central to the respondent’s plea was that he had been diagnosed as having Asperger’s Syndrome, which was not disputed.
All of the charges related to the conduct of the respondent with respect to one victim, his biological daughter, who was then aged between 11 and 12, in the family home, over a period of about eight months, between 20 April 2009 and 1 December 2009.
Charge 1 represented approximately 18 times in which the respondent penetrated his 11-year-old daughter’s mouth with his penis. The Prosecution Opening on the plea, which the sentencing judge annexed, and incorporated into his reasons, described the conduct leading to this charge as follows:
The complainant described that from the start of term 2 of school when she was 11, her father entered her room and asked her to suck on his erect penis “sort of like a lollipop”. She was told to put her mouth around it and “bring my head back and forward, like I was sucking a lollipop”. She described her father asking her about 20 times to perform this act and that on 2 occasions she said no. She said that sometimes her mouth would get sore and her father would then stop and walk out of the room. The complainant recalls on at least one occasion her brother and step-mother being home. The complainant recalls 3 occasions where “sperm” came out of her father’s penis. On one occasion “ a little bit came into my mouth and I really didn’t like it, so I spat it out, and he caught the rest in a paper towel.” … This was after her father had asked her to swallow his ejaculate. … The last occasion that the [respondent] penetrated the complainant’s mouth was on 25th November 2009 when, after some time, “we heard mum coming, so he put his penis in his clothes again and walked off”.
Charge 2 represented approximately five times when the prisoner penetrated his daughter’s vagina with his fingers.
Charges 3 and 4 were each stand-alone charges of incest arising from the respondent penetrating his daughter’s vagina with his tongue.
Charge 5 consisted of one occasion on which the respondent got his daughter to sit on his lap before he used lubrication on his penis and inserted it into her anus.
She described it hurting at the start “like it was being stretched”. She said that he pulled his penis out a bit and then he put it back in when “my bottom got used to it and that’s when he started going in and out”. She described that after some time the [respondent] just said “… that’s enough, and I got off and he held a towel around his waist and he went to the toilet”.
Charges 6 and 7 were stand-alone charges involving the respondent, on two separate occasions, while sitting on his daughter’s bed, encouraging the family dog to lick his daughter’s vagina. This had led the daughter to continue that behaviour alone for extended periods.
Charge 8 represented approximately eight times when the respondent watched and encouraged his daughter to masturbate herself to orgasm.
She described that it mostly happened in her bedroom but that sometimes it happened when she was in her father’s bedroom and he would say “Why don’t you rub yourself since no-one’s home?”
In his record of interview the respondent admitted sodomising his daughter and when asked why, he responded by saying: ‘Just as an experiment’. He admitted the other forms of sexual abuse, although at first he lied by denying that he had ever placed his fingers in his daughter’s vagina. The offending would happen primarily in the afternoons after his daughter had finished school and when he had finished work for the day. His daughter and son would arrive home at about 4 pm and he would arrive home from work at about 4:30 pm. His partner would not arrive home from work until about 5 pm. There was roughly half an hour before his partner arrived home in which the sexual abuse would typically occur.
The respondent’s son would often be in the house at these times but the respondent determined there was no great risk that his son would see what happened because he also had Asperger’s Syndrome and ‘he’s pretty much in his own little world’. When asked why he did what he did to his daughter he said:
I don’t know. I think it was just sexual gratification for myself.
…
And you’re obviously aware how old [your daughter] is?
Very.
What made you do it?
(NO AUDIBLE REPLY)
Is there some issue you want to tell us about?
I wouldn’t have a clue. Probably a psycho.
Okay. Have you got any questions you want to ask?
A retarded f-in’ psycho.
With respect to the incidents with the dog, the respondent was asked in his Record of Interview:
Did you encourage the dog to do that?
Yes I did.
…
Don’t you think that’s pretty disgusting?
Yes.
And how many times would you say that’s occurred?
Twice to my knowledge.
With respect to the performance of oral sex by the daughter upon the respondent, he admitted that at times he would say to his daughter such things as, ‘You’ll make me feel special’. He was asked how many times a week something would occur between him and his daughter and he responded ‘probably twice a week’. He was asked if he was aware of what offences he had committed by his conduct and he said ‘Yes’. He was asked if he was aware that what he did was wrong and he replied ‘Yes, I am’.
At the plea in mitigation the respondent relied upon a psychological report by Dr Marged Goode; a psychological evaluation by Dr Simon Kennedy, clinical and forensic psychologist; and an article by Mr Anthony Warren, ‘Asperger’s Syndrome and Autistic Spectrum Disorders in the Courts’.
In sentencing the respondent in the manner described above, the sentencing judge recognised that ‘sexual offending against children is a matter of the utmost seriousness’. He referred to remarks which he said were made in an earlier case in the Supreme Court and which he endorsed:
It ought to be unnecessary to recount the morbid features of incest, the most prominent of which include the exploitation by the stronger will of the adult of the weaker will of the child. The physical and psychological subordination of the child to the perverted indulgences of the adult, the gross breach of trust placed in the offender by the victim and the community, and the irreparable fundamental damage to the victim.
To this could be added the observation of Batt JA in R v SBL[3] in considering the effect of numerous sexual offences committed by an offender against his two nephews:[4]
The evidence of the effect of the respondent’s conduct upon the victims in this case is illuminating and extremely disquieting: besides the traumatic effect of the conduct upon them, it has confused them as to the boundaries of their bodies and as to questions of decency and propriety.
[3][1999] 1 VR 706.
[4]Ibid 726 [70].
Where a person in a position of familial trust abuses that trust, the effect may well be, as here, to ‘confuse them as to the boundaries of their bodies’, as is apparent from the daughter’s continuing with the learned aberrant behaviour on her own. Indeed, the sentencing judge concluded that the respondent’s ‘depraved, horrendous conduct will have lifelong and profound adverse consequences for [his] daughter’. He noted the deep confusion the daughter suffered from, as illustrated by what she said:
I really trust my Dad and I didn’t see any of this was bad. Of course, it made me feel good and Dad was encouraging me about it and everything and, yeah, it made me feel good, so I didn’t see it as a problem until now I see the enormity of it and Dad is not a bad person. He’s just made a mistake. He’s not perfect. Nobody is. So I don’t think he deserves to be in gaol or anything like that. He’s just made a mistake.
His Honour appeared to recognise the significance of the fact that Charges 1, 2 and 8 were representative charges. He noted the observation made by Nettle JA in DPP (Vic) v EB where his Honour said:[5]
[A]s the judge said, counts 1 to 5 were representative counts which made it appropriate to impose a higher sentence in relation to those counts than would be the case in relation to an isolated count. Admittedly, that notion is not without its conceptual difficulties because of the principle that a prisoner is not to be punished for uncharged acts. But as Batt JA explained in R v SBL, the fact that a count is a representative count serves to preclude it being said in mitigation of penalty that it was but an isolated offence, and, additionally, it enables the offence to be seen in its full circumstantial context. Thus a representative offence is likely to attract a greater sentence than an isolated offence.
[5](2008) 186 A Crim R 314, 318 (emphasis added, footnotes omitted).
In R v SBL, Batt JA said: [6]
Not only does the fact that a count is agreed to be representative preclude its being said in mitigation that the offence was isolated, it affirmatively enables the offence to be seen in its full circumstantial context. The offender is not, by a loading of the sentence, to be punished for the represented offences, but the sentence for the representative offence may reflect the fact that it, the offence counted, occurred in the wider context. Consistently with the view which I have expressed about agreed representative counts, regard may in the present case be had to the adverse effect upon the victims of the whole of the conduct, which effect might not have been produced, or produced to the same extent, by the offences counted alone.
[6][1999] 1 VR 706, 726 [70].
It is in this sense that each representative charge was relied upon by the Crown before the sentencing judge, both as precluding an assertion that it was an isolated offence and as enabling the offence to be seen in its full circumstantial context.
The sentencing judge accepted ‘that there is some causal connection between [the respondent’s] Asperger’s Syndrome and [the respondent’s] offending’. He referred to the significant difficulty people with Asperger’s have in ‘processing cues, affective cues’, and said:
Here, it appears that you have misinterpreted your daughter’s cues. That, of course, does not excuse your behaviour.
The finding of causation was necessary to the sentencing judge’s reasons because, as Redlich JA stated in Romero v The Queen,[7] the finding of a causal link is required between a mental impairment, intellectual disability, or psychological disorder and the subject criminal offending, before the impairment, disability or disorder can be relied upon to reduce the offender’s moral culpability or moderate the need for denunciation and deterrence. He said:[8]
[A]s this Court has cautioned in Ashe v The Queen and in Director of Public Prosecutions v Patterson, it is always necessary to consider how the particular condition affected the mental functioning of the offender at the time of the offence, and how it is likely to affect him in the future. The question must always be whether, in the particular case, it has been shown that the offender’s moral culpability or the significance of general or specific deterrence is reduced because of the intellectual disablement. It must therefore be determined whether the applicant’s disablement had the effect, in the language of Verdins, of impairing the offender’s ability to exercise appropriate judgment, or impairing the offender’s ability to make calm and rational choices, or to think clearly at the time of the offence.[9]
[7][2011] VSCA 45 (with whom Buchanan and Mandie JJA agreed).
[8]Ibid [13] (footnotes omitted).
[9] In R v Verdins (2007) 16 VR 269, 275 [26], this Court stated that impaired mental functioning at the time of the offending may reduce the offender’s moral culpability if it had the effect of –
The respondent’s history
The respondent was aged 47 at the time of sentencing. He had no prior convictions.
He was adopted at birth, as was his sister. He had a good relationship with his adoptive parents and with his sister, all of whom were present in court at the time he was sentenced. He found school difficult and was socially isolated there. He joined the army at the age of 22 and spent four years in the army reserves and 18 years in the regular army. He rose to the rank of sergeant. He suffered serious injuries in the course of his employment in 1999 and was then confined to office duties. He was discharged from the army in 2007 for not handing back some hand grenades, and had engaged in a similar offence in the 1980s. The incidents appear to have been treated as minor, as he was re-employed by the army doing similar work but as a civilian without the status of army rank.
He had two children, a daughter (the victim) and a son, during a marriage which lasted from the mid-1990s up until 2002, when he and his wife divorced. He was drinking heavily at the time. His wife had a stroke and she became neglectful of the children, the stroke appearing to affect her emotional stability. She left him with the children and she seldom saw them. He was the sole parent and custodian guardian of the two children. He remained close to his former wife’s family.
After his marriage broke up, he formed a relationship with RJ. That relationship involved bestiality and anal sex. In the examination made by Dr Kennedy, the respondent drew a link, in his eyes, between RJ and his daughter, which formed the basis of a fantasy for him:
[HPW] indicated that the sexual offences began in April 2009. He reported that he had seen [his daughter] masturbating herself on her bed when she was aged 11 years. He reported that this excited him. He indicated that he felt that in some ways she reminded him of [RJ], his previous partner, who was very slight and thinly built. This began a process of him masturbating to the fantasy of his daughter. Prior to this, there had been no contact.
The first sexual contact was when [HPW] walked into [his daughter’s] bedroom, and asked her to give him oral sex. He stated that she obliged. He indicated that there was no touching, no prelude or any sexual contact before then. There is no evidence of formal grooming. He stated that she did not refuse. He indicated that it appeared as if she was enjoying it.
The sexual contact occurred between April and November 2009. [HPW] reported that this involved oral sex, him touching her, anal penetration on one occasion, and on one occasion he encouraged a dog to lick her vagina. He encouraged her to masturbate, and there was oral sex of him on six to eight occasions, and oral sex of her on one occasion. [HPW] ejaculated once into her mouth. The contact was sporadic and generally after work. He initiated it. He reported there was no intercourse, and he would masturbate later.
It was related to sexual gratification, and [HPW]’s description would suggest there was impulsivity. The sexual abuse ended in November 2009. He stated that he realised what he was doing. He reported up to this point, there was no particular connection that he had been abusing his daughter. As indicated, he drew the link between his previous relationship with [RJ] and his daughter … His description of his relationship with [RJ] would suggest that they had unusual and experimental sexual experiences around 2002 including her having sex with her dog, some bondage and some anal sex. It is clear that he continued to use this as part of his fantasy.
Before the sentencing judge, the DPP relied on statements made by the daughter to police officers that she was introduced to masturbation by her father.
The relationship with RJ came to an end when the respondent moved to Puckapunyal. He did not have a partner for some years until meeting his current partner, TM, with whom he was living when the sexual abuse of his daughter occurred. Their sexual relationship was limited between 2007 and 2009. He was drinking approximately 15 standard drinks per night. There was conflict over his drinking and he tried to hide the amount of alcohol he was consuming from his partner as he did not want her to know.
The respondent had always suffered bouts of depression and anxiety. He drank to deal with those issues and at one stage had been prescribed antidepressants. He had not suffered sexual abuse himself.
The relevance of the respondent’s Asperger’s Syndrome
It was not disputed before his Honour that the respondent suffered from Asperger’s Syndrome, a developmental disorder which must have been present from childhood. This went undiagnosed until after the criminal charges had been laid. The respondent’s son had been diagnosed with an autism spectrum disorder and he saw a similarity in some of his own behaviour in childhood.
In February 2010, Dr Goode assessed the respondent as having an autism spectrum disorder. She elaborated as follows:
He [the respondent] has significant deficits in social interaction; restricted behaviour, interests and activities; clinically significant impairment in social or other important areas of functioning; no apparent language impairment; and no apparent cognitive impairment. He is somewhat atypical in his awareness of his deficiencies in empathy and friendship skills.
Dr Goode’s report had the limited purpose of assessing whether the respondent had autism spectrum disorder, specifically, Asperger’s. It did not, and did not purport to, address the question of the respondent’s criminal conduct.
The paper authored by Mr Warren indicated some of the manifestations of the disorder:
People with autism spectrum disorder invariably have significant difficulty processing cues, affective cues. You can understand why, not understanding how relationships work and certainly the impact of their behaviour for other people, people with Asperger’s may be associated with offending behaviour such as harassment, assault, stalking behaviours or offences. There is a very significant lack of capacity for shared enjoyment and of interest, although that can be acquired with appropriate interventions to an extent, sometimes to a very great extent. … [This] has an impact on the person’s awareness of their emotional processes and responses and has huge implications for capacity to establish a friendship and for later relationship forming. It also contributes to isolation, and because of those emotional impacts is a big co-contributing factor to co-occurring disorders especially anxiety and depression during adolescence and childhood.
It is noteworthy that the form of offending behaviour mentioned as associated with Asperger’s is the type of behaviour which would not be criminal were consent to be given.[10] This, of course, is not the case with respect to the offending to which the respondent has pleaded guilty.
[10]In Dr Kennedy’s report there is mention of persons with Asperger’s being ‘charged with criminal difficulties, particularly in the sexual domain’.
The Warren paper also discussed statistical probabilities:
We know that 15% of siblings who have a sibling with Asperger’s disorder are at risk too, or likely to have Asperger’s disorder.
This statistic was relied on by the respondent’s counsel, in the plea in mitigation, when it was conceded that while suffering from Asperger’s, HPW was nevertheless ‘at the high functioning level. In other words his cognitive abilities, his intelligence have not been compromised in that sense by the Asperger’s’. It was said of his daughter that ‘should it be a situation that [she] is suffering from a mild form of autism spectrum disorder or Asperger’s, that she too is at the very high functioning end’. The possibility that the daughter may also have been suffering from Asperger’s, on which there was no evidence, was relied on in the plea to suggest she may have been misreading her father. The respondent’s counsel, on the plea, in the first mention of any behavioural ‘cues’, said:
Should she suffer from Asperger’s she may well not only have been misreading the cues from her father which he almost certainly was as an Asperger sufferer has been misreading from her … he quite clearly has said there was no guile on his part. He believed that she was treating it as part of her daily activity.
The sentencing judge queried the reliance on the risk that the daughter also had Asperger’s, saying:
But there’s nothing before me to suggest that [the daughter] does have Asperger’s.
Nevertheless, in his reasons for sentence, he remarked:
[T]here is a greater risk that the victim here may have Asperger’s Syndrome.
The relevance of this observation was nowhere explained in the sentencing judge’s reasons although it is made immediately before the conclusion that the respondent may have misinterpreted his daughter’s cues. The observation is thus made in a context where the sentencing judge focuses upon the daughter’s behaviour, and the respondent’s understanding of his daughter’s behaviour, from which he sought to draw inferences.
The Warren paper discussed how Asperger’s can lead to law breaking behaviour. Under the heading ‘Theory of Mind/Mind Blindness’, it reads:
Difficulty imagining what others are thinking (their beliefs, desires, emotions)
·Difficulties:
·Understanding intentions and motives of others;
·Understanding effect of their behaviour on others;
·Predicting the behaviour of others;
·Understanding deception;
·Adhering to social norms, social and legal rules (lack understanding of their importance);
·Understanding pretend, fact and fiction.
The theory of mind idea is that the person would have great difficulty imagining what others are thinking. So their empathy, their social cognition is significantly impaired, and some of the difficulties would be understanding the intentions and motives of others. So that could feed into offending behaviour, such as minor assault and harassment. Understanding the effect on others varies from extreme naivety through to just not being aware of the effect that they have – that they are distressing others.
… Difficulties adhering to social norms and to understanding legal rules will lead to offences such as assault, trespass, riding on the wrong side of the road and so on.
Dr Kennedy’s report drew on the report of Dr Goode with which he was furnished, saying, ‘[m]y understanding is that she has specific expertise in the area of diagnosis of Autism Spectrum Disorder’. He specifically referred to that aspect of the disorder that involves a deficiency in empathy. He said:[11]
In this case, victim empathy should be commented on for specific reasons, particularly in relation to [HPW]’s cognitive distortion associated with the offences. In this matter, he has reported that while carrying out the sexual offences he considered that [his daughter] was experiencing the sexual abuse in a matter-of-fact way as if the activities were normal, and nothing more than her daily activities.
Discussion of this issue occurred at some length. I should note that [HPW] did not appear to be attempting to minimise this behaviour in this [sic], but was attempting to explain how he saw [his daughter’s] response to the sexual abuse. He thought at the time for her, it was “something to do … as if it was an activity such as playing cards or watching TV” that had no impact on her at an emotional level. When asked about his understanding of the effects of the sexual abuse on [his daughter], he reported in a very distinct way that the impact has been “huge … I think I’ve ruined her … she’ll never be able to see me in the same light … it will be very difficult for her with partners in the future”.
I note in this context, for the first time in the evaluation, [HPW] broke down and cried intensely for a couple of minutes, and was unable to speak.
[11]Emphasis added.
Dr Kennedy was thus able to contrast the victim empathy that the respondent had been able to develop after his offending (which was treated by the sentencing judge as indicative of genuine remorse) with the lack of empathy shown at the time of the offending. Most importantly, Dr Kennedy identified the lack of empathy associated with Asperger’s as manifest, in the circumstances of the case, in the respondent’s failure to understand the distress he was causing his daughter. This was referred to as the respondent’s ‘cognitive distortion’. The distortion led him to believe that his daughter’s response to the sexual abuse was not to experience any emotion.
It is noteworthy, given the sentencing judge’s reasons, that Dr Kennedy’s report does not suggest that the respondent’s deficient empathy was manifest in any misreading of his daughter’s behavioural ‘cues’ as ones of encouragement towards him. Rather, the report suggests that – save for the one occasion in which it records that the respondent ‘indicated that it appeared as if she was enjoying it’ – that he believed that the offending had no impact on his daughter emotionally as if the abuse was a matter-of-fact activity, like watching TV.
Dr Kennedy also referred to academic work on Asperger’s Syndrome[12] and applied it to the circumstances of the case:
[There is a] focus on deficient empathy, which is clearly relevant in this case, interpersonal naivety which appears to be the case in this matter, sexual frustration which is clearly relevant in this case, and immediate confession, which from my understanding, is also present. Additionally, there are sexual preoccupations, which do appear relevant in this case.
[12]Daniel C Murrie, Janet I Warren, Marianne Kristiansson, and Park E Dietz, ‘Asperger’s Syndrome in Forensic Settings’, (2002) 1(1) International Journal of Forensic Mental Health 59.
He elaborated further:
[D]espite the complexity and the possibility that [HPW]’s behaviour could be reinterpreted in the more routine fashion as the behaviour of a sexual offender, in my opinion, it is highly likely that his behaviour is best explained by the presence of an Autism Spectrum Disorder. The fact that there has been no grooming process distinguishes him from the standard sexual offender profile. Additionally, there are no other aspects that would necessarily fit him with being a sexual offender.
[HPW] is a man who has been able to establish victim empathy. Based on this evaluation, I have no doubt about his remorse. It is clear that he had a sound relationship with both his children prior to the offences, and accepts that he has ruined their lives. He is aware and understanding of the court’s likely position on his offences. It is likely in this matter, that [HPW]’s alcohol abuse has been one factor in disinhibition around his sexual behaviour in the context of sexual frustrations in his relationship around the time of the offences, in conjunction with the social and cognitive problems associated with Asperger’s Syndrome.
Thus, the evidence of Dr Kennedy, after having examined the respondent and questioned him in an attempt to understand his mental state at the time of the offending, gave little or no support to the account which formed the foundation of the plea and which was accepted by the sentencing judge, namely, that the respondent misread his daughter’s behaviour as providing encouragement to him, by means of hints or signals, to engage in the sexual offending. There was no description of any particular behavioural cues by the daughter which the respondent believed were intended to encourage him. Even the respondent’s account that he had seen his daughter masturbating herself on her bed when she was aged 11 (an account contradicted by the daughter’s statement that it was her father who had taught her to masturbate) was not accompanied by a statement that he thought she was doing this knowing that he was watching her. There was an absence of any suggestion, to take a hypothetical example, that she might have undressed with the door open so he could see her. Rather, the respondent’s account of the manner in which he initiated and carried out the sexual contact was of conscious, impulsive, stark action aimed at achieving his own sexual gratification and carried out in a context of deception, typically occurring in a narrow window of opportunity, between the respondent’s arrival home from work and the arrival of his partner.
Dr Kennedy’s opinion, read as a whole, suggested that the sexual offending occurred in a context in which (1) the respondent had sexual preoccupations with his daughter, fantasising about her in a manner reflective of his previous unusual sexual relationship with an earlier partner of whom his daughter reminded him; (2) he was sexually frustrated with his current partner; (3) his level of alcohol abuse led to disinhibition; and (4) his deficient empathy meant that he believed that his sexual offending was having no emotional impact on his daughter. Dr Kennedy’s opinion did not provide a proper evidentiary base supporting the finding of the sentencing judge that the respondent ‘may have misinterpreted [his] daughter’s cues’.
The respondent’s counsel on the plea referred to the account the complainant gave to police officers of the circumstances in which the offending took place, and made the following submission:
Throughout, unfortunately the cues which she gives to [HPW] are exactly that; that, “This is good, I’m enjoying this; this is not bad, it’s part of my daily activity”. And on the occasions when she has said, “No” … he ceased it immediately and that obviously is a situation which we can be thankful for but the fact is that when she said, “No”; because she didn’t fancy it that day this is a child who was not incapable or being prevented from expressing her opinion at the time and unfortunately her opinion frequently was, “It gave me pleasure; I enjoyed it”. And she is a child reaching puberty whether that’s early or not she is certainly reaching puberty.
She went on to suggest that the daughter had made a variety of ‘concessions’ about the sexual activity:
My statements are very plain and simple to your Honour; the submissions are that this is a child who has this thing distressing her; was not afraid to come forward with those words. She had not been threatened. There was nothing that would have prevented her; she was open and candid in her VATE tape and she made very many concessions about the way the circumstances took place. Unfortunately those concessions have put [HPW] with Asperger’s Syndrome in the position of misinterpreting cues.
Indeed, the plea went so far as to suggest that the respondent engaged in the sexual offending because he believed that his daughter enjoyed it.
Now, here we have heard from [HPW] in his record of interview saying he believed that [his daughter] considered what was happening as part of her daily activities. That she wasn’t distressed by it, that it was something in which he was partaking because she was actually enjoying it.
The italicised sentence was a misrepresentation of the record of interview. At no point in that interview did the respondent say that he engaging in the sexual activity with his daughter because she enjoyed it, or that it occurred at her initiative. Rather, he responded to the question ‘why did you do it?’ with the answer: ‘for my own sexual gratification’. The record of interview showed, by the respondent’s frank answers, that it was his own sexual arousal that motivated him to behave in the way he did. His record of interview did not suggest that he believed that his daughter was making sexual overtures to him, or that he believed that she was hinting or signalling to him that she would like him to engage in the sexual offending. The respondent’s evidence in the record of interview did not suggest that his conduct consisted in anything other than his initiating sexual contact by approaching his daughter and seeking sexual favours from her, sometimes coaxing her when she was reluctant and sometimes telling her that it would make him feel ‘special’.
At its highest, the respondent’s record of interview which might support this part of the plea is the following exchange:
Obviously you were encour- encouraged the dog to do it?
Yes.
What enjoyment was – what enjoyment did you –
(RECORDING CUTS OUT DUE TO LOW VOLUME AS DISPLAYED ON DVD SCREEN)
… … sexual - (INDISTINCT DUE TO POOR RECORDING)
Right. So you thought your daughter would enjoy it too?
(INDISTINCT DUE TO POOR RECORDING)
At best, this might suggest that the respondent believed that his daughter might take pleasure from the bestiality to which he had subjected her. It would hardly seem to support the foundation of the plea that was made.
It would seem that the respondent’s counsel on the plea took the comments made by the daughter to the police officers[13] and treated them as though they were statements made by the respondent about his state of mind; indeed, as though they were the explanation the respondent proffered for his conduct. Counsel then sought to characterise that explanation (which the respondent hadn’t given) as one infused by the ‘mind blindness’ and deficient empathy from which those inflicted with Asperger’s Syndrome suffer to account for the sexual offending by reason of a misinterpretation of the daughter’s behaviour as providing cues of encouragement. This account, which the sentencing judge accepted, had no secure evidentiary foundation arising from the circumstances of the case; it was not supported by Dr Kennedy’s report, and, indeed, it was inconsistent with the bulk of the respondent’s own evidence. It was also relevant that the respondent admitted that he knew that what he was doing was wrong.
[13]Extracted at paragraph 23 above.
In my opinion, the sentencing judge’s finding that there was ‘some causal connection between [the respondent’s] Asperger’s Syndrome and [the] offending’ cannot be disconnected from the analysis he made of the nature of that causal connection. The reasons reveal no other analysis of the causal connection than the sentencing judge’s observation that the respondent ‘may have misinterpreted [his] daughter’s cues’. It is true that there was evidence before the sentencing judge from Dr Kennedy that ‘it is highly likely that [the respondent’s] behaviour is best explained by the presence of an Autism Spectrum Disorder’ but, for the reasons given above, that observation could not be read as supporting the causal connection as analysed by his Honour in terms of the daughter’s behavioural cues.
On appeal, the respondent observed, correctly, that there had been no objection to the tender of Dr Kennedy’s report, the DPP did not seek to lead any evidence challenging Dr Kennedy’s opinion nor did he ask for Dr Kennedy to be made available for cross-examination. In those circumstances, it was submitted that the finding of a causal connection, based as it was on Dr Kennedy’s report, was plainly open to the sentencing judge.
In my opinion, for the reasons I have given, the finding by the sentencing judge of the existence of a causal connection was arrived at in a particular way and it revealed an understanding about the behaviour of the daughter that was not open on the evidence, including on the basis of Dr Kennedy’s report. In my opinion, it was not open for the sentencing judge to find the causal connection in the manner that he did; the causal connection as found by the sentencing judge between the respondent’s Asperger’s and the sexual offending was an error. [14]
[14]For a consideration of other instances in which a court has considered an offender with Asperger’s see Hopper v The Queen [2003] WASCA 153; Chandler v The Queen [2010] VSCA 338; R v George (2004) 149 A Crim R 38.
In my opinion, Ground 1 is made out.
However, in the event that I am wrong in that conclusion, and in light of the recognition that this is a Crown appeal where the principal complaint is one of manifest inadequacy, I shall proceed to consider the two remaining grounds.
Manifest inadequacy
Ground 2 of the appeal alleged that the individual sentences imposed, the total effective sentence and the non-parole period resulted in a manifestly inadequate sentence. The maximum penalty for the offences to which the respondent pleaded guilty was 25 years’ imprisonment for incest (on which there were five charges) and 10 years’ imprisonment for indecent act with a child under 16 (on which there were three charges).
The DPP pointed to the particular circumstances of the offending as justifying a more severe penalty. In particular, he relied on the following circumstances:
· the commission of the sexual offences was against a natural daughter;
·the offending continued over eight months;
·the offending commenced when the victim was 11 years old;
·the respondent initiated the offending by asking his daughter to perform oral sex on him;
·on at least one occasion, the respondent asked his daughter to swallow his ejaculate;
·digital penetration of the victim;
·encouraging his daughter to masturbate in his presence;
·committing lingual penetration of his daughter’s vagina;
·anally penetrating his daughter with his penis;
·the respondent encouraging the family dog to lick his daughter’s vagina and the consequences of this offending (leading the daughter to indulge in such acts while she was alone);
·the offending was committed on some occasions while the respondent’s son was at home.
Moreover, it is also relevant to this ground that the evidence showed that the offending took place in a narrow window of opportunity, in a context of deception, between the respondent’s arrival home from work and the arrival of his partner.
Furthermore, it is significant, in the manner explained above, that three of the charges were representative in nature: Charge 1 (the 18 times in which the respondent penetrated his 11-year-old daughter’s mouth with his penis); Charge 2 (the five times in which the prisoner penetrated his daughter’s vagina with his fingers) and Charge 8 (the eight times in which the respondent watched and encouraged his daughter to masturbate). There was an attempt on the plea to characterise the entire offending as involving ‘an isolated incident’. This was the very characterisation precluded by the representative nature of some of the charges. The representative nature of three of the charges meant, as mentioned above by reference to what Nettle JA said in DPP (Vic) v EB,[15] that they were likely to attract a greater sentence than an isolated offence. While his Honour rejected the submission that the criminal activity constituted an isolated incident, and noted the representative character of Charges 1, 2 and 8, the DPP submitted that this was not reflected in the individual sentences. I agree.
[15](2008) 186 A Crim R 314, 318.
A significant aggravating feature of the offending was the breach of trust involved in the commission of offences by a parent (and the sole legal guardian) against a young child. There was a core breach of trust at the heart of the offences, and the impact of that breach must be reflected in the sentencing. So too the sentencing must reflect the impact experienced by victims of this type of offending, to which I have referred and of which Batt JA spoke of in R v SBL[16] as engendering a confusion ‘as to the boundaries of their bodies’. The evidence of the continuing aberrant behaviour of the daughter on her own reflects precisely this confusion, for which the respondent is responsible. In addition, the on-going nature of the offending demanded a high penalty.
[16][1999] 1 VR 706, 726 [70].
In respect of Charges 3-8, the respondent was designated and sentenced as a ‘serious sexual offender’. Thus the protection of the community was to be the principal purpose for which the sentence was to be imposed for those charges.[17]
[17]Sentencing Act 1991, s 6D(a).
On the other hand, the factors in favour of mitigation include the significant admissions the respondent made when interviewed by the police; his early plea of guilty; the genuineness of his remorse (well supported by the report of Dr Kennedy); the fact that he had previously been a man of good character, with no prior convictions; his own personal history, including his bouts of depression and anxiety; and his Asperger’s Syndrome. Putting to one side the doubts I have expressed about the sentencing judge’s finding that there was a causal connection between the respondent’s Asperger’s and the offending which enabled him to reduce the moral culpability of the respondent, in my opinion, even if the finding of causal connection was open, the sentencing judge placed too much weight on the respondent’s disorder. He said:
I accept that there is reduced moral culpability on your part, on account of your Asperger’s Syndrome and that denunciation by the court is not so relevant a sentencing objective.
Likewise, general deterrence and specific deterrence should be moderated as a sentencing consideration.
In my opinion, taking account of the respondent’s Asperger’s Syndrome should not have led to a significant moderation in the respondent’s sentence. The nature and gravity of the offending, most particularly, the range and repetitive nature of the offending, and the inclusion of such demeaning behaviour as bestiality, called for a sentence that reflected the sentencing purposes of denunciation and deterrence. I am reinforced in that opinion by the remarks made by the Chief Justice and Redlich JA in WCB v The Queen[18] where they spoke of how important it is that sentencing practices reaffirm properly informed values of the community, most especially in relation to the protection of children. As their Honours said:[19]
In the case of sexual exploitation of children, which involves ‘a derogation from the fundamental human rights of immature, dependent and vulnerable persons’, the sentence constitutes an important reaffirmation by society of those values. … In R v Sposito, the Full Court spoke of the breach of trust placed in the offender by the community and society’s responsibility to protect its children from sexual abuse. In Wayland Crockett J gave express recognition to the rising tide of public indignation concerning sexual offences against children and the court’s obligation to respond to legitimate community concern. In R v Wakime, Winneke P, after referring to the capacity of crimes against children to erode decent family life and the trust and confidence of its victims, repeated that this court ‘ought not to turn its back on the tide of community anger and resentment towards crimes which involve the despoliation of children’. In DPP v Riddle Vincent JA considered that ‘just punishment, public denunciation and general deterrence’ assumed considerable significance as sentencing considerations given the fact that the community had been required to face and respond to an appalling incidence of child abuse. In DPP v Toomey, Vincent JA referred to the fact that sexual abuse of children is regarded by the reasonable person as extremely serious, not only by reason of its potential and actual impacts on the individual victims, but also because of the damage occasioned to the community generally.
[18][2010] VSCA 230.
[19]Ibid [36] (footnotes omitted).
With respect to the question of whether the respondent’s Asperger’s will render the experience of prison more burdensome for the respondent, the sentencing judge made a number of observations. He said:
Paradoxically, it appears that, in some respects, your Asperger’s Syndrome will make it easier for you to serve a prison sentence. The routine of prison life has been borne easily enough by you to date, I am told, while on remand for eight months. Apparently, prisoners come to you for advice and you are their spokesperson with the authorities.
However, I would anticipate that the lack of empathy and poor social interaction, which are part and parcel of Asperger’s Syndrome, could cause some problems in the prison scene.
Although the reasons indicate that, with respect to life within a prison, the difficulties associated with Asperger’s may not all be to the respondent’s disadvantage, nevertheless I consider that the respondent’s Asperger’s should be seen in this context as a mitigatory factor which may render the service of his sentence in prison more burdensome.
Both the DPP and the respondent pointed to the available sentencing statistics which reveal that for incest the median sentence is four years’ imprisonment[20] and, for indecent act with a child under 16, the median sentence is 18 months’ imprisonment.[21] The respondent relied on additional statistics which reveal that, of those sentenced to imprisonment for multiple counts of incest and related offences during the period 2004-05 to 2008-09, the average total effective sentence ranged from five-and-a-half to just seven-and-a-half years’ duration.[22] The average non-parole period ranged from three-and-a-half years to four years and nine months.[23]
[20]Sentencing Advisory Council, Sentencing Snapshot No. 99 – Sentencing Trends for Incest in the Higher Courts of Victoria, 2004-05 to 2008-09 (2010).
[21]Sentencing Advisory Council, Sentencing Snapshot No. 81 – Sentencing Trends for Indecent act with a child under 16 in the Higher Courts of Victoria, 2003-04 to 2007-08 (2009).
[22]Sentencing Advisory Council, Sentencing Snapshot No. 99 – Sentencing Trends for Incest in the Higher Courts of Victoria, 2004-05 to 2008-09 (2010) 7.
[23]Ibid 7.
However, the DPP submitted that, in addition to the inherent limitations of the utility of statistics in this area that are ordinarily acknowledged,[24] there is the additional limitation that the nature of the offences here are ones that reflect a great variety of conduct, most particularly with respect to the offence of indecent act with a child under 16. Moreover, the crimes committed by the respondent were very grave examples of both incest and indecent act with a child, yet, with the exception of Charges 1 and 2, the representative charges of incest, the sentences imposed were well below the median sentences for those offences and on those representative charges were only equal to the median. The sentences imposed on the indecent act charges were all below the median despite the fact that, on any view, the offending was at the most serious end of the scale. The depravity of the offences in the circumstances of the case called for a suitable sentence above the median.
[24]Hili v The Queen (2010) 85 ALJR 195, 206-7 [54]-[55]; Hudson v The Queen [2010] VSCA 332.
The respondent relied on the case of GJW v The Queen[25] to argue that the range proffered by the prosecutor before the sentencing judge, namely, 14-17 years’ imprisonment with a non-parole period of 11-14 years, was excessive. In GJW the appellant had been convicted of 14 counts of incest and four counts of committing an indecent act with or in the presence of a child under 16, namely, the daughter of GJW’s de facto wife when she was aged between 11 and 13. He was sentenced to a total effective sentence of 11 years and 10 months, with a non-parole period of eight years. An appeal was allowed, in part, because of a failure by the sentencing judge to differentiate between the relative gravity of the facts giving rise to each of the incest counts. He thus failed to differentiate the criminality involved. The appeal was also allowed because the principle of totality required a shorter head sentence. GJW was re-sentenced to 10 years with an eight year non-parole period.
[25][2010] VSCA 193.
On the appeal, the DPP conceded that the range that had been submitted by the prosecutor as appropriate before the sentencing judge could not be supported by current sentencing practices, including the case of GJW. Nevertheless, he submitted that an important distinguishing feature between the circumstances of this case and GJW lay in the respondent encouraging his daughter to engage in inappropriate sexualised behaviour (especially, behaviour that included the family dog). In addition, GJW was not concerned with any charges of a representative nature.
On the appeal, the DPP submitted that an appropriate sentencing range would be between ten to thirteen years as a head sentence and a non-parole period of seven to 10 years.
Ultimately, the question of manifest inadequacy of sentence is, as Gleeson CJ and Hayne J said in Dinsdale v The Queen,[26] a conclusion. Their Honours said: [27]
A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than non-custodial) or because the sentence imposed is manifestly too long or too short.
[26](2000) 202 CLR 321, 325 [6].
[27]Ibid 325 [6].
In my opinion, I consider that the individual sentences imposed by the sentencing judge are manifestly inadequate. The sentences do not adequately recognise the debased and humiliating nature of the offending, the core breach of trust, or the effect of the offending on the respondent’s daughter. Nor did the sentences give sufficient weight to denunciation and deterrence.
Cumulation
Ground 3 alleged that the sentencing judge erred in failing to make any order as to cumulation in respect of charges 3, 4, 5, 6, 7 and 8.
The sentencing judge cumulated three and a half years (42 months) out of the four year sentence imposed on Charge 2 and made no other cumulation orders in respect of the remaining charges. The respondent submitted that, while, ordinarily, one would have expected some cumulation of some of the sentences imposed on Charges 3-8, the sentencing judge’s decision to direct concurrency in relation to those sentences was justified when regard is had to the heavy – indeed, excessive – amount of cumulation of the sentence on Charge 2 and to the principle of totality and the factors in mitigation. While there could have been a different exercise in cumulation, it may well have produced precisely the same total effective sentence.
The DPP conceded that the cumulation order in respect of Charge 2 (incest by digital penetration) was high but he argued that cumulation was also warranted in respect of at least Charges 3 (incest by lingual penetration), 5 (incest by sodomy), 6 (indecent act with dog), and 8 (indecent act by watching and encouraging daughter to masturbate). It was argued that the offending the subject of these charges added to the overall criminality because they materially added to the defilement of the young girl.
In light of the respondent’s status as a serious sex offender, the statutory presumption of cumulation in s 6E of the Sentencing Act 1991 applied.[28] The predecessor to s 6E, s 16(3A), was considered by the High Court in R H McL v The Queen.[29] In the joint judgment of McHugh, Gummow, and Hayne JJ, their Honours emphasised the purpose and importance of a statutory presumption of cumulation, when they said:[30]
The need for judges not to compress sentences is especially important where the accused person is a “serious sexual offender” within the meaning of s 16(3A) of the Sentencing Act, and similar provisions. 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 16A(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.
[28]This 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.’
[29](2000) 203 CLR 452.
[30]Ibid 476-7 [76] (emphasis added).
Although the DPP accepted that the sentencing judge made mention of the presumption of cumulation, the principle of totality and the approach to be taken in sentencing for multiple offences, he submitted that the failure to cumulate, especially on charges 3, 5, 6 and 8, was an error.
I agree. In my opinion, the sentencing judge gave insufficient weight to the legislative policy behind the statutory presumption of cumulation. Although the degree of cumulation on charge 2 was high, the total effective sentence has been unduly compressed and the effect of the sentencing was that the respondent was not required to spend an additional single day in prison for licking his daughter’s vagina, or getting the family dog to do so, or sodomising her or encouraging her to masturbate herself for his sexual gratification. I consider that the orders for cumulation were not appropriate given the presumption under s 6E of the Sentencing Act and the nature of the offending.
Ground 3 is made out.
I would allow the appeal.
Re-Sentencing
As, in my opinion, the appeal should be allowed, the sentencing discretion is thus re-opened and it is for this Court to re-sentence the respondent.
The respondent was sentenced after the commencement of ss 289(2) and 290(3) of the Criminal Procedure Act 2009, which precludes the Court taking double jeopardy into account in deciding whether a Crown appeal should be allowed or in re-sentencing a respondent to a Crown appeal. [31]
[31]As to the approach taken by an appellate court to the abolition of double jeopardy in Crown appeals, see the decision of this Court in Director of Public Prosecutions v Karazisis [2010] VSCA 350, [52]-[123] (Ashley, Redlich, Weinberg JJA) and the New South Wales Court of Criminal Appeal in R v JW [2010] NSWCA 49.
Having regard to all relevant aggravating and mitigating factors, I would re-sentence the respondent as follows:
Charge Offence Maximum Sentence Cumulation 1 Incest 25 years’
imprisonment
4 years
3 months’
imprisonment
Base 2 Incest 25 years’
imprisonment
4 years
3 months’
imprisonment
21 months
3 Incest 25 years’
imprisonment
3 years
6 months’
imprisonment
6 months 4 Incest 25 years’
imprisonment
3 years
6 months’
imprisonment
6 months 5 Incest 25 years’
imprisonment
4 years’
imprisonment
9 months 6 Indecent act
with child
under 16
10 years’
imprisonment
2 years’
imprisonment
9 months 7 Indecent act
with child
under 16
10 years’
imprisonment
2 years’
imprisonment
6 months 8 Indecent act
with child
under 16
10 years’
imprisonment
2 years
6 months’
imprisonment
6 months
This amounts to a total effective sentence of nine years and six months’ imprisonment. I would fix a non-parole period of six years and six months.
Neither the total effective sentence nor the non-parole period entirely reflects the range proposed by the DPP. This is so because of the weight I consider should be accorded to the features in mitigation, particularly the remorse the respondent has experienced in arriving at some understanding of the gravity of his conduct, the effect on his daughter’s life, and the manner in which she will view him in the future.
Pursuant to s 6AAA of the Sentencing Act 1991, I declare that, but for the respondent’s guilty pleas, I would have re-sentenced the respondent as follows:
Charge Offence Maximum Sentence Cumulation 1 Incest 25 years’
imprisonment
4 years 9
months’ imprisonment
Base 2 Incest 25 years’
imprisonment
4 years 9
months’ imprisonment
2 years 6 months 3 Incest 25 years’
imprisonment
4 years’
imprisonment
1 year 4 Incest 25 years’
imprisonment
4 years 6
months’ imprisonment
9 months 5 Incest 25 years’
imprisonment
4 years 6
months’ imprisonment
1 year 3 months 6 Indecent act
with child
under 16
10 years’
imprisonment
2 years 6
months’ imprisonment
1 year 7 Indecent act
with child
under 16
10 years’
imprisonment
2 years 6
months’ imprisonment
9 months 8 Indecent act
with child
under 16
10 years’
imprisonment
2 years 6
months’ imprisonment
1 year
Save for the respondent’s guilty pleas, I would have ordered a total effective sentence of 13 years’ imprisonment. I would have imposed a non-parole period of nine years.
- - -
(1) impairing the offender’s ability to exercise appropriate judgment;
(2) impairing the offender’s ability to make calm and rational choices, or to think clearly;
(3) making the offender disinhibited;
(4) impairing the offender’s ability to appreciate the wrongfulness of the conduct;
(5) obscuring the intent to commit the offence; or
(6)contributing (causally) to the commission of the offence.
13
8
0