DPP v Jones (a Pseudonym)
[2013] VSCA 330
•21 November 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2013 0010
| DIRECTOR OF PUBLIC PROSECUTIONS | Appellant |
| v | |
| HUGH JONES (A PSEUDONYM)[1] | Respondent |
[1]To ensure that there is no possibility of identification of the victims of the sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.
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| JUDGES | REDLICH, PRIEST JJA and ROBSON AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 3 September 2013 |
| DATE OF JUDGMENT | 21 November 2013 |
| MEDIUM NEUTRAL CITATION | [2013] VSCA 330 |
| JUDGMENT APPEALED FROM | DPP v [Hugh Jones], (Judge Howard, County Court of Victoria at Melbourne) |
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CRIMINAL LAW – Director’s appeal against sentence – Multiple sexual offences against 3 victims – Offences of persistent violence and cruelty – Representative and rolled up counts – Worst category of case – No challenge to individual sentences – Cumulation orders inadequate – Principle of proportionality infringed – Failure to reflect total criminality – Appeal allowed – Sentence increased to 16 years’ imprisonment with non-parole period of 12 years.
SENTENCE – Competency of Director’s appeal – Whether Director can appeal against ‘total effective sentence’ – Whether Director’s appeal was on appeal against sentence for the purposes of s 287 of the Criminal Procedure Act 2009 – Principle of totality considered – Whether ‘manifest inadequacy’ constitutes error – Ludeman v The Queen (2010) 31 VR 606; Lacey v Attorney General (Qld) (2011) 24 CLR 573 considered.
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| Appearances: | Counsel | Solicitors |
| For the Appellant | Mr J R Champion SC with Ms F L Dalziel | Mr C Hyland, Solicitor for Public Prosecutions |
| For the Respondent | Mr P F Tehan QC with Mr S P Kennedy | Tait Lawyers |
REDLICH JA
PRIEST JA:
Introduction
For the reasons that follow, we would allow the Director’s appeal in this case, and would re-sentence the respondent so as to produce a total effective sentence of 16 years’ imprisonment upon which we would fix a non-parole period of 12 years.
The charges and the impugned sentences
On 17 February 2012 the respondent pleaded guilty in the County Court to 16 charges relating to offences of a sexual and violent nature. There were three victims — JW, with whom the respondent had been in a de facto relationship, and JW’s teenaged son, JN, and daughter, CN. The offences occurred between December 2008 and March 2010 after the respondent had moved into a house with the victims.
With respect to the daughter, CN, there were two representative charges of incest[2] (charges 1 and 2); one of producing child pornography[3] (charge 3); two representative charges of indecent act with a 16 or 17 year old child under care, supervision or authority[4] (charges 4 and 5); two charges of procuring an act of sexual penetration with a 16 or 17 year old child under care, supervision or authority[5] (charges 6 and 7); and one charge of intentionally causing serious injury[6] (charge 8).
[2]Crimes Act 1958, s 44(2).
[3]Crimes Act 1958, s 68.
[4]Crimes Act 1958, s 49(1).
[5]Crimes Act 1958, s 58(3).
[6]Crimes Act 1958, s 16.
As to the son, JN, there were was one charge of procuring a child under 16 to take part in an indecent act[7] (charge 13); one rolled-up charge of intentionally causing injury[8] (charge 14); one charge of intentionally causing serious injury (charge 15); and one charge of false imprisonment[9] (charge 16).
[7]Crimes Act 1958, s 47(1).
[8]Crimes Act 1958, s 18.
[9]See Crimes Act 1958, s 320.
So far as the children’s mother, JW, was concerned, there were two charges of rape[10] (charges 9 and 10); one charge of intentionally causing injury (charge 11); and one rolled-up charge of intentionally causing serious injury (charge 12).
[10]Crimes Act 1958, s 38.
Following a plea in mitigation — which took place over six separate days and involved extensive psychological and psychiatric evidence and disputed factual contests about a variety of matters — on 21 December 2012[11] the respondent was sentenced to a total effective sentence of 13 years’ imprisonment with a non-parole period of 10 years. The judge declared pursuant to s 6AAA of the Sentencing Act 1991 that, but for the plea of guilty, he would have imposed a total effective sentence of 16 years’ imprisonment with a non-parole period of 13 years.
[11]The judge first purported to pass sentence the previous day, 20 December 2012, but recalled the sentence in light of the need for further submissions concerning the serious offender provisions of the Sentencing Act 1991.
It is convenient to set out the individual sentences and orders for cumulation[12] in the table immediately following. Those charges where the respondent fell to be sentenced as a serious sexual offender[13] (charges 1 to 7, 9, 10 and 13) or serious violent offender[14] (charges 8, 12 and 15) are designated respectively ‘SSO’ and ‘SVO’. Thus it will be noted that it was only with respect to charges 11, 14 and 16, that the respondent was not sentenced as either a serious sexual offender or serious violent offender so that s 6E of the Sentencing Act 1991 — which requires a sentence imposed on a serious offender to be served cumulatively ‘unless otherwise directed by the court’ — had no application to those three charges.
[12]Although we have referred to orders for cumulation, the sentencing judge made orders for concurrency with respect to all charges where the respondent was sentenced as a serious offender, save for charge 3. (So far as charge 3 is concerned, no order for concurrency was made, so that pursuant to s 6E of the Sentencing Act 1991 the whole of the sentence on charge 3 was to served cumulatively.) Specific orders for cumulation were made in respect of charges 11, 14 and 16, which did not attract the serious offender provisions. For the sake of ease, however, instead of setting out the specific orders for cumulation and concurrency, we have set out the effect of the orders so far as overall cumulation is concerned.
[13]Sentencing Act 1991, Part 2A (ss 6A to 6F).
[14]Sentencing Act 1991, part 2A (ss 6A to 6F).
Charge Offence Maximum Sentence Cumulation 1 – CN Incest 25 years 4 years (SSO) BASE 2 – CN Incest 25 years 2 years 6 months (SSO) 9 months 3 – CN Produce child pornography 10 years 3 months (SSO) 3 months 4 – CN Indecent act with 16 or 17 year old child under care, supervision or authority 5 years 1 year (SSO) 3 months 5 – CN Indecent act with 16 or 17 year old child under care, supervision or authority 5 years 9 months (SSO) Nil 6 – CN Procuring an act of sexual penetration of a 16 or 17 year old child under care, supervision or authority 10 years 2 years (SSO) 1 year 7 – CN Procuring an act of sexual penetration of a 16 or 17 year old child under care, supervision or authority 10 years 2 years (SSO) Nil 8 – CN Intentionally cause serious injury 20 years 18 months (SVO) 9 months 9 – JW Rape 25 years 3 years (SSO) 1 year 10 – JW Rape 25 years 2 years (SSO) 9 months 11 – JW Intentionally cause injury 10 years 6 months 3 months 12 – JW Intentionally cause serious Injury 20 years 3 years (SVO) 18 months 13 – JN Procuring a child under 16 to take part in an indecent act 10 years 6 months (SSO) 3 months 14 – JN Intentionally cause injury 10 years 1 year 6 months 15 – JN Intentionally cause serious injury 20 years 3 years (SVO) 1 year 16 – JN False imprisonment 10 years 18 months 9 months Total Effective Sentence: 13 years’ imprisonment Non-Parole Period: 10 years Pre-sentence Detention Declared: 1017 days 6AAA Statement: TES of 16 years’ imprisonment with NPP of 13 years Other orders: Sex offender registration reporting for life. Forensic sample retention order. Forfeiture order. The sole ground of appeal
By a notice of appeal filed 17 January 2013, the Director appeals against the sentence. There is a single ground claiming manifest inadequacy, expressed as follows:
1.The total effective sentence and non-parole period are manifestly inadequate.
Particulars
In fixing the sentence set out above, the sentencing judge –
(a)Made orders for cumulation and concurrency, in combination with low individual sentences which result in a total effective sentence and a non-parole period which are manifestly inadequate in all of the circumstances;
(b)Made orders for cumulation and concurrency which fail to reflect adequately that the respondent was sentenced as a ‘serious offender’ on 13 of the charges;
(c)In setting the total effective sentence and the non-parole period, failed to give sufficient weight to the principles of protection of the community, just punishment, denunciation, general deterrence and specific deterrence; and
(d)Failed to have sufficient regard to the seriousness of the offences, the context within which they were committed, and the impact they had on the victims.
The ground of appeal attacks the total effective sentence and non-parole period as being manifestly inadequate but does not impugn the individual sentences on any charge as being manifestly inadequate. Rather, they are described as ‘low’. As we will later make clear, in our opinion a number of individual sentences are disproportionately so.
A preliminary submission that the appeal is incompetent
When the appeal was called on for hearing, senior counsel for the respondent, sought to raise what was said to be a preliminary point concerning the competence of the appeal. After some short submissions, the Court indicated that it would entertain the submissions on competence as part of the wider submissions to be made on the merits of the appeal.
Although the position shifted a little during discussion, as we understood it there were originally two limbs to the submissions. The respondent’s first contention was that the ‘sentence’ contemplated by s 287 of the Criminal Procedure Act 2009 (‘CPA’) can only embrace the individual sentences passed on each charge so that an appeal which seeks to impugn the total effective sentence and orders for cumulation and concurrency, is incompetent. Drawing upon Ludeman[15] it was submitted that the total effective sentence and orders for cumulation were not sentences that can be the subject of appeal. Secondly, it was submitted that an appeal by the Director requires the demonstration of ‘error’, and a complaint that a sentence is manifestly inadequate is not one of error. To support these propositions, counsel relied only on two authorities, Ludeman and Lacey.[16] For the following reasons none of these submissions can be sustained.
[15]Ludeman v The Queen (2010) 31 VR 606 (‘Ludeman’).
[16]Lacey v Attorney-General (Qld) (2011) 242 CLR 573 (‘Lacey’).
By s 287 of the CPA the Director may appeal as of right against ‘a sentence’, so long as the conditions specified in the section are satisfied. Section 287 provides:
287 Right of appeal—inadequate sentence
The DPP may appeal to the Court of Appeal against a sentence imposed by an originating court if the DPP –
(a) considers that there is an error in the sentence imposed and that a different sentence should be imposed; and
(b) is satisfied that an appeal should be brought in the public interest.
It will be noticed that the Director may appeal against ‘a sentence’ if he considers that ‘a different sentence’ should be imposed. And s 289 makes plain that the Court of Appeal must allow the appeal if satisfied that there is an error in ‘the sentence’ first imposed, and that ‘a different sentence’ should be imposed.
So far as relevant, s 3 of the CPA defines sentence as follows:
sentence includes –
(a) the recording of a conviction; and
(b) an order made under Part 3, 3A, 3B, 3BA, 3C, 3D, 4 or 5 of the Sentencing Act 1991, other than an order incidental to or preparatory to the making of the order;
Ludeman was said to found the first limb of the submission as to competency. It was concerned with the interpretation of ss 278, 280, 281 and 282 of the CPA. Section 278 — which was in the same form as presently — permitted a person sentenced for an offence by the County Court or Supreme Court to appeal to the Court of Appeal against the sentence imposed if the Court of Appeal gave leave to appeal. By s 280(2) as it then stood, the Court of Appeal could refuse an application for leave to appeal under s 278 in relation to any ground of appeal if there was ‘no reasonable prospect that the Court of Appeal would impose a less severe sentence than the sentence first imposed’. The principal issue in the case was whether ‘the sentence’ was a reference to any individual sentence or referred to the total effective sentence. As might be appreciated, the practical implications were that if ‘the sentence’ was the total effective sentence, the Court of Appeal might refuse leave to appeal even though error attended an individual sentence if of the view that no less severe total effective sentence would be imposed on appeal.[17]
[17]Ludeman, 608–9 [7], 613 [50].
An examination of Part 3, 4 and 5 of the Sentencing Act 1991, shows that any ‘sentence’ under the Act, and in particular, the imposition of a term of imprisonment, requires an ‘order’ of the sentencing court. Section 7 sets out the sentences that may be imposed by way of order under Part 3 of the Act.[18] They include by s 7(1)(a), an order that an offender serve ‘a term of imprisonment’. Also falling within Part 3 is the power to fix a non-parole period as part of ‘the sentence’ (s 11). Section 16 deals with ‘sentences’ by way of orders for concurrency and cumulation.[19]
[18]By s 7(1)(k) sentences imposed and orders authorised under other Acts are also included.
[19]See, for instance, s 16 (3B) and (3C).
The definition of ‘sentence’ in s 3 of the CPA, now and at the time of the decision in Ludeman, was not exclusive. It sets out what a sentence ‘includes’ so that an extended meaning could be given to the ordinary meaning of the word.[20] The definition with its cross-reference to Parts 3, 3A, 4 and 5 of the Sentencing Act, with one exception, makes no reference, however, to the term ‘total effective sentence’. Sub-section 280(1)(b) of the CPA — which was introduced following the decision in Ludeman — constitutes the exception. It now provides that leave to appeal against sentence may be refused where despite error in an individual sentence there is no reasonable prospect that the Court of Appeal would reduce the total effective sentence. The effect of the amendment is that leave may be refused where there is error in an individual sentence but the Court would not alter the combined effect of the sentences that have been pronounced. In that circumstance the court may correct the individual sentence and refuse leave to appeal. The term ‘total effective sentence’, however, remains conspicuously absent from Parts 3, 3A, 4 and 5 of the Sentencing Act 1991.
[20]Zickar v MGH Plastic Industries Limited (1996) 187 CLR 310, 329–30 (Toohey, McHugh and Gummow JJ); compare Sherritt Gordon Mines v Commissioner of Taxation(Cth) [1977] VR 342, 353 (McInerney J); Beqiri v R (2013) 271 FLR 220, 225 [28].
Where the offender is sentenced to terms of imprisonment for more than one offence, s 11(4) of the Sentencing Act refers to ‘the aggregate period of imprisonment’ that the offender will be liable to serve. This, as the joint judgment in Ludeman stated, then reinforced the conclusion that ‘sentence’ where used in Part 6.3, Division 2 of the CPA was an intended reference to the various orders that can be made under Parts 3A, 4 and 5 of the Sentencing Act. It was then viewed as strongly contraindicating ‘the sentence’ be read to include a ‘total effective sentence’ in a ‘multi-sentence case’.[21] Since orders for cumulation are ‘sentences’, the CPA provisions permit a challenge to such orders. As was further observed in the joint reasons in Ludeman, any complaint about totality should be framed by reference to the individual sentences (if any) which are sought to be impugned, as well as any order(s) for cumulation which will be attacked.[22] The fact that this will in substance permit an attack on the ‘total effective sentence’ was said by Ashley and Redlich JJA in Ludeman to be conceptually beside the point. It did not mean that the ‘total effective sentence’ was a ‘sentence’.[23] Essentially for the reasons given in Ludeman, the term ‘sentence’ as it is used in Divisions 2 and 3 of Part 6.3 of the CPA embraced each individual sentence imposed and any consequential order made for cumulation or concurrency, and any non-parole period which was fixed, but not the total effective sentence.[24] The submission that the Director cannot appeal against the terms of imprisonment imposed through orders for cumulation is without merit.
[21]Ludeman, 616 [62].
[22]Ibid [56].
[23]Ibid [65].
[24]Ibid [55].
The correctness of that approach had often been reiterated[25] under the previous statutory regime. In Boucher[26] a bench of five judges stated that:
In our opinion a total effective sentence is not a term of imprisonment to which an offender is sentenced within the meaning of s 10(1). The total effective sentence is nothing more than the term of imprisonment which results from the passing on the same occasion of more than one sentence of imprisonment on an offender once effect is given to the rules of law governing the cumulation or concurrency of sentences and any directions that are given as to cumulation or concurrency. The sentencing judge does not pass a total effective sentence as such. It is the usual, but not the necessary or even invariable, practice, for a judge, when passing a sentence of imprisonment on more counts than one, to state the total effective sentence. This he does as a matter of convenience, in order to inform the prisoner immediately of the length of the effective sentence and in order to reduce the danger that, as a result of some arithmetical or other error, the sentences which he has actually passed and the directions as to concurrency or cumulation which he has actually given will not give effect to his actual intention as to the total sentence to be served. It is not possible to appeal against a total effective sentence: the prisoner can appeal only against the individual sentences of imprisonment and the orders made for concurrency or cumulation.
[25]See R v Bolton & Barker [1998] 1 VR 692, 697; R v Harkness & Ors [2001] VSCA 87, [22]; R v Albanus [2004] VSCA 236, [9].
[26]R v Boucher [1995] 1 VR 110, 116.
This court has long entertained appeals against sentence by prisoners in which it has been asserted that the total effective sentence was manifestly excessive. Ever since the Crown has had a right of appeal, it has been customary for the ground of appeal to impugn the total effective sentence and to particularise which individual sentences or orders for cumulation were the subject of complaint. The term ‘total effective sentence’ has always been viewed as a convenient description of the product of the individual sentences and orders for cumulation which the sentencing judge is by law authorised to order. The competency of such a Notice of Appeal has never been doubted.
Although Ludeman was concerned with ‘sentences’ in the context of leave to appeal, the conclusion as to what constitutes a ‘sentence’ which may be the subject of appeal under the CPA also applies to a Director’s appeal. As was also stated in the joint reasons in Ludeman, the CPA mandates the way in which a complaint about the common law principle of totality must be raised in a particular case.[27]
[27]Ludeman, [56].
Following the amendment to s 280(1)(b) of the CPA, the term ‘sentence,’ as it is used in Divisions 1 and 2 of Part 6.3 of the CPA may now arguably include the ‘total effective sentence’. Whether or not it does so, a ground of appeal complaining as to the ‘total effective sentence’ will not be incompetent so long as the practice is maintained of particularising which sentences that were ordered under the Sentencing Act are the subject of the appeal. That is a practice which must continue to be observed in order to identify which sentences are impugned. Observance of the practice is essential in order for it to be understood whether it is error in the imposition of individual sentences or the orders for cumulation or both that are encompassed by the attack on the total effective sentence. It will not be sufficient that a ground complains that the total effective sentence infringes the principle of totality.
In the present case the ground is so particularised as to make clear that it is only the sentences by way of orders for cumulation that are impugned as producing a total sentence that is manifestly inadequate and which infringes the principle of totality.
As to the second limb of his submission as to competency, the respondent’s counsel relied on Lacey. That case concerned s 669A(1) of the Criminal Code (Qld), which had been amended so that, on an appeal by the Attorney-General against a sentence passed on an offender, the Court of Appeal could ‘in its unfettered discretion vary the sentence and impose such sentence as to the Court seems proper’. Lacey was convicted of manslaughter and was sentenced to ten years’ imprisonment. He appealed against his conviction to the Court of Appeal (Qld) and applied for leave to appeal against his sentence. The Attorney-General also appealed against the sentence on the grounds that it was inadequate or manifestly inadequate. The Court of Appeal held that ‘unfettered discretion’ in s 669A(1) meant that, in exercising its discretion, it must have regard to the sentence imposed below but may come to its own view as to the proper sentence to be imposed. Thus the Court of Appeal increased the sentence without first finding any demonstrated or inferred sentencing error by the judge at first instance.
In allowing Lacey’s appeal, the High Court (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ, Heydon J dissenting) explained that s 669A(1) conferred jurisdiction on the Court of Appeal to vary a sentence only when it was determined that there was an error on the part of the sentencing judge. The ‘unfettered discretion’ is to be construed as conferring upon the Court of Appeal the power to substitute the sentence it thought appropriate once error had been demonstrated.[28]
[28]Lacey, 598 [62].
There is an implicit but erroneous assumption in the submission that ‘error’ as contemplated by the High Court in Lacey is not to be found in case of manifest inadequacy. This assumption is unsupported, and is indeed contradicted by authority, including Lacey itself. Manifest inadequacy in sentence plainly is appealable error at the suit of the Director as demonstrating an error of principle of a kind contemplated in Lacey.[29] Manifest excess or inadequacy in a sentence has long been recognised as falling within the residual category of discretionary errors explained by Dixon J in House.[30]
[29]Dinsdale v R (2000) 202 CLR 321, DPP v Werry [2012] VSCA 208. For further discussion see [60]–[63] below.
[30]House v The King (1936) 55 CLR 499.
Circumstances of the offending
The offending was extremely grave. It involved depravity of an almost unimaginable magnitude. Given the complaint of manifest inadequacy embodied in the sole ground of appeal, however, it is unfortunately necessary that we describe the essential conduct constituting the offences in moderate detail.
In late 2008 the respondent operated a sheet metal business. JW was employed in an administrative capacity. A sexual relationship commenced and the respondent moved in with her and her children at their home in a rural area on the outskirts of Melbourne.
The offences against the first victim, CN, occurred between December 2008 and February 2010, when she was either 16 or had just turned 17. Charges 1 and 2 were representative counts of incest. The first incident occurred in December 2008 when the respondent took CN to the lounge room and penetrated her vagina with his penis (charge 1). CN was a virgin and the penetration caused vaginal bleeding and pain. Over the next year, the respondent had sexual intercourse with her almost every day. At times the respondent forced JW to watch as he had sex with CN in the marital bed. On other occasions the respondent had sexual intercourse with CN in a car when he was supposed to be giving her driving lessons. Between February and March 2009 the respondent put his penis in CN’s mouth while in the back seat of the car during one of the driving lessons (charge 2). Similar conduct happened on an occasion when the respondent was driving the CN home from school, and once when her mother was present in the marital bed.
On three occasions between March 2009 and February 2010 the respondent took six topless photographs of the victim (charge 3).
By about April 2009 CN thought that she was in love with the respondent. CN had commenced sleeping with the respondent and her mother in the marital bed, although the respondent encouraged CN to exclude her mother. However, following an argument — and as a punishment — the respondent made CN watch while he had sex with her mother (charge 4). Charge 4 was representative of this behaviour which occurred on a number of other occasions, including once when the respondent raped JW (charge 9). Following the conduct which made up charge 4, the respondent told the victim to suck her mother’s breast. CN did what she was told (charge 5). The respondent then had vaginal sex with CN in front of her mother (relevant to the incest embraced by charge 1).
Charges 6 and 7 concerned the respondent procuring CN to take part in an act of sexual penetration. In June or July 2009 the respondent told CN to put her fingers into her mother's vagina. She did so (charge 6). Her mother started crying and tried to move out of the way, but the respondent held JW down on the bed so that she could not move. The respondent then made JW put her finger into her daughter’s vagina (charge 7). JW did this because the respondent had told her that he had a weapon nearby and she feared he would shoot her if she did not do what he demanded. Immediately following this, the respondent had CN perform oral sex on him (relevant to charge 2).
By late 2009 CN had turned 17 years of age. She was working in the office of the respondent’s business. The final offence involving CN (charge 8), intentionally causing her serious injury, occurred on Christmas Eve 2009. CN and the respondent were both working late at the office. The respondent told CN that she was sexually inexperienced. She left the office, and when she returned she falsely said that she had just met another man and been with him. The respondent lost his temper and hit CN in the face, knocking her to the ground. He then kicked her a number of times in the stomach and head whilst she lay defenceless on the ground. The respondent accused CN of having cheated on him. Later, he drove her home but assaulted her again in the car. As a result of the attack upon her, CN suffered a chipped tooth, swollen lips, a black eye and bruising to her arms. There was, however, no permanent physical injury.
The offences against the respondent’s de facto partner, JW, occurred between May 2009 and March 2010 when she was 44 years of age. Charges 9 and 10 were counts of rape. After the conduct which constituted Charge 5, and having had intercourse with CN in her mother's presence, the respondent straddled JW and penetrated her vagina with his penis knowingly without her consent (charge 9). Whilst he was doing this he told her to stick her fingernails into his back, which she did. The respondent then told JW that she was not allowed to touch him while he was making love to her daughter or she would have to watch. He then started having intercourse with CN. As JW tried to get off the bed she accidentally touched the respondent, so he turned CN over and had sex with her from behind.
In May 2009, on another occasion when the respondent was having sex with CN, the respondent had his hand between JW’s legs with his fingers in her vagina, knowing she was not consenting (charge 10). If JW was not watching the respondent’s sexual acts with her daughter he would use his fingers to hurt her vagina. JW was scared that the respondent would ‘rip her vagina apart’. The trauma for JW was so great that she would mutilate her arms after each occasion that she was forced to watch the respondent having sex with her daughter. Two days after the incident the subject of charge 10, JW was admitted to a psychiatric hospital, depressed and suicidal.
By early January 2010 the respondent had brainwashed CN into falsely believing that she had been drugged and raped since her early childhood by her mother and her brother, who was then 15 years of age. The respondent also tried to make the son, JN, believe that his mother had raped him as a child. JW and JN were forced by the respondent to write out lengthy confessions that they had been drugging and raping CN, or that the respondent’s former brother‑in‑law was supplying them with drugs and firearms. They were threatened with violence if they did not make these false confessions, which were referred to as ‘scenarios’.
Also in January 2010 the respondent put one of these scenarios to JW, but for the first time she refused to participate. As a result the respondent punched her to the face (charge 11). She blacked out and fell to the floor. JW suffered black eyes, a swollen nose, headaches, blurred vision and facial pain. She attended hospital but because she was fearful gave a false account.
Charge 12 was a rolled-up charge of intentionally causing serious injury. By February and March 2010 the respondent had assumed complete control over the lives of JW and her son, such that hey were not allowed to eat, drink or shower, or to speak or ask questions, unless the respondent first gave them permission to do so.
On many occasions the respondent would force JW and JN to sign false confessions by holding a knife to their throats. One night the respondent woke JW and forced her to come into the master bedroom. With her daughter present the respondent accused JW of raping CN for 17 years in order to support her drug habit. The respondent told JW that the only way to treat people like her was with force. He then punched her severely to the ribs more than three times and pulled her to the ground by her hair. JW suffered tenderness and extensive bruising to the rib region and a pneumothorax, and bruising and carpet burns to her leg and face (part of charge 12).
On another occasion around this time the respondent made further allegations of rape and violence against JW. He got a hunting knife and heated the blade over a gas element until it was red hot. The respondent then put the knife on JW’s bare upper chest. When she cried he burned her arm about seven times. She suffered terrible pain (part of charge 12). Photographs produced on the hearing of the appeal show the horrible burns and scarring inflicted.
The offending against the third victim, JW’s son, JN, occurred between December 2009 and March 2010, when JN was a lad of 15 years. In January 2010, CN had commenced making false allegations that her brother was raping her on a weekly basis, and that her uncle had a gun which he fired at her. The respondent convinced JN that the uncle was a dangerous man who might appear at any time to hurt him. He made JN drop out of both school and cadets claiming that it was for his own safety. The respondent made JN believe that it was dangerous for him to leave the house without the respondent being present to protect him. He then cut the landline telephone and confiscated all mobile phones in the house. He changed the locks and confiscated keys. He sold the television and radio. JW and JN became virtual prisoners in their own home with little or no contact with the outside world. CN was claiming that her mother and JN were drugging the respondent with chloroform and raping him while he was asleep. JN was very confused.
In order to avoid being hurt, JN wrote out false scenarios as instructed by the respondent and CN. He was very upset because his sister was angry and hostile towards him and his mother.
Sometime between Christmas 2009 and March 2010, in the early hours of the morning, the respondent took JW and JN and drove them to a secluded country area. He made them get out of the car and said that the next time he brought them there he would shoot them. On one occasion the respondent told JN that he would burn him with an oxy torch, otherwise he could strip naked and stand in front of his mother.
On another occasion in this period the respondent told JN and his mother to take off their clothes and stand naked in front of each other. For fear of being tortured JN did what the respondent commanded (charge 13).
Charge 14 was a rolled-up charge of intentionally causing injury. Between January and March 2010 the respondent procured CN to hold a knife to her brother’s throat while she accused him repeatedly of having sexually assaulted her. Each time he denied that he had, CN placed the knife closer and closer to his neck until she actually cut him with it, leaving a 0.2 centimetre linear red scar on his throat (part of charge 14). Further, in late February 2010, following a fight between CN and JN, the respondent first stood, then stomped, on JN’s leg. This caused him a lot of pain. He was taken to hospital as it was feared his leg may have been fractured. In order to cover his tracks, the respondent told JN to tell hospital staff that he had fallen off his bike. JN sustained bruising and tenderness to his leg and face (part of charge 14).
Charge 15 was a charge of intentionally causing serious injury. In late February 2010 the respondent and CN woke JN in the early hours. The respondent dragged him to the lounge room where his hands and feet were tied with cable ties, and his mouth was gagged with a tea towel. The respondent made JN lie on his back on his hands for about 30 minutes, thereby cutting off the circulation. Each time he tried to relieve the pressure the respondent stood on his stomach, or the respondent and CN beat him about the head, stomach and genitals. The respondent then held JN down while his sister got a heated knife and burned him twice on his leg. A medical report detailed the multiple injuries suffered by JN, some of which are depicted in photographs (charge 15).
The final offence concerning JN is one of false imprisonment on or about 7 March 2010. In the lead up to the event constituting the false imprisonment, CN falsely asserted that her brother had been getting drugs via his bedroom window from his uncle. She told her brother that he, JN, had tried to use a syringe on her but she had fought back. CN claimed that she had stuck the syringe into him, and he would therefore be undergoing drug withdrawal. JN played along and pretended that he was withdrawing from drugs. The respondent told him that he would have to tie JN up for the night so that he could not go and get the drugs again from his bedroom window. His hands were tied behind his back with plastic cable ties and his ankles with insulation tape. He was bound like this for six hours (charge 16). The respondent then untied JN and told him to complete a simple task to prove that he was no longer drug affected. Before he could do that the respondent pushed JN to the ground and put his foot against his throat and chest. The respondent then hit him to the face with an open hand, and threatened to place him in juvenile detention. JN said he wanted to go to his father’s house. There was then telephone contact with his stepmother who, out of concern for JN’s welfare, contacted police.
To try and confuse any investigation, the respondent also contacted police and an ambulance suggesting that JN had attempted to stab his sister with a syringe filled with chloroform. Police attended the family home on the morning of 8 March 2010. JN was found in a distressed state. Police observed many injuries to his body. He was taken from the home and made full disclosure.
In another attempt at deflection, the respondent contacted police and falsely told them that JW wanted to confess to drugging and raping her daughter and that he had been drugged with chloroform. JW made a fake confession to police.
Two days later, on 10 March 2010, police visited the house and discovered the cable ties and insulation tape used in JN’s false imprisonment. JW was found to be disorientated and frightened. She was admitted to a psychiatric unit where she continued to repeat the false scenarios.
The respondent was arrested and interviewed but made no admissions. He was charged with offences concerning JN and has since then been held in custody.
The plea in mitigation
As we have said, the plea hearing occurred over six separate days and involved extensive psychological and psychiatric evidence, and disputed factual contests about several matters (including whether the respondent was sexually abused by his older brothers during childhood). Extensive findings were made by the judge in his sentencing remarks, none of which are challenged on this appeal. It is thus unnecessary to summarise the submissions of counsel on the plea.
Sentencing remarks
In sentencing the respondent, the judge found that the offending represented persistent, manipulative and domineering conduct. It involved highly disturbing physical and psychological cruelty to — and at times torture of — those the respondent was meant to protect and care for. As a consequence of the offending, each of the three victims suffered terrible physical and psychological effects.
The judge noted that the respondent had a troubled upbringing, which included suffering physical violence at the hands of his alcoholic father. He himself had struggled with alcoholism from the age of 13 and thereafter throughout his life (including at the time of the commission of the offences), although he indicated to one psychiatrist that he had had been ‘largely alcohol free for seven years before the offending’. At school he had done poorly.
As a child, the respondent was subjected to a grossly dysfunctional social and psychological family environment, which involved a combination of violence perpetrated by his father against him and other family members, and sexual abuse committed against him by his two older brothers. Three experts agreed that there was a resulting chronic post traumatic stress disorder which existed at the time of the offending. The post traumatic stress disorder was properly described as a mental impairment for Verdins[31] purposes. Thus the respondent’s moral culpability was somewhat reduced, and general and specific deterrence and denunciation sensibly moderated. The respondent was not, however, acting in the grip of any irresistible and uncontrollable urges. Moreover, it was not contested that he knew what he was doing and that it was wrong. Despite his moral culpability being reduced, it remained significant, so that general deterrence and just punishment were important. The judge noted that while the respondent had sustained a number of injuries over the years, including through electrocution and motor vehicle accidents, it was not suggested that any physical or medical problems would make his imprisonment more burdensome.
[31]R v Verdins (2007) 16 VR 269.
The judge remarked that sentences for offending of this kind must involve recognition of the kind of personal damage that is caused to victims and of the reality that the rehabilitation of the victim may be far more difficult to accomplish than that of the perpetrator.
Community protection and specific deterrence, the judge held, were also matters of importance. It was said that the persistence, intensity and cruelty of many of these crimes were significant factors in support of this conclusion. So too was the fact that the respondent had significant prior convictions for rapes and violence committed in 1996. The respondent had failed adequately to address his alcohol problems and, despite undertaking a sex offenders’ program when he went to prison for the offences in 1996, he had reoffended.
Since the respondent fell to be sentenced as a serious sexual offender with respect to every sexual offence, protection of the community was the principal purpose of sentencing. The judge found, however, that it was unnecessary to impose disproportionate sentences or order full cumulation in order to achieve that purpose. Full cumulation, it was held, would offend against the principle of totality and proportionality and lead to the imposition of a crushing sentence. The judge noted, however, that he must be astute not to undermine the legislative policy underpinning the serious sexual offender provisions. In this case, substantial cumulation was warranted, because there were three victims, a progression of offending involving increasing degradation of the victims as time went on, and offences with significantly different components requiring individual recognition.
Prior to sentencing, the respondent had been on remand for approximately two years and nine months. In that time he had overcome his initial denial of the offences and commenced to demonstrate significant remorse and acceptance of the innocence of the victims. This slow process was incomplete but evidenced maturity, insight and rehabilitation on his part. Considerable delay in the finalisation of the matter was all the more significant due to the rehabilitation achieved in the meantime. In sounding a note of caution, the judge said that the respondent’s progress was encouraging and he had shown some insight and remorse. The judge could not, however, presently conclude that the respondent has good prospects of rehabilitation.
The judge was of the view that the plea of guilty merited a significant discount. It had great utilitarian effect and served the ends of justice as it avoided a lengthy trial and relieved the victims from reliving their trauma and emotional anxiety. The plea was also associated with a degree of remorse.
Significantly, the judge thought that prosecution’s range of 16 to 20 years as a total effective sentence, with a non-parole period of 14 to 16 years, was too high, particularly given the respondent’s mental impairment and its nexus to the offending. The judge did not consider there was sufficient disparity between the head and minimum sentence at the bottom of the range.
The applicable principles
Although it may be assumed that the principles which guide the Court when a complaint is advanced of manifest inadequacy are well understood, it is worthwhile repeating certain aspects of them.
In Dinsdale, Gleeson CJ and Hayne J observed:[32]
Manifest inadequacy of sentence, like manifest excess, is a conclusion. 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. But to identify the type of error amounts to no more than a statement of the conclusion that has been reached. It is not a statement of reasons for arriving at that conclusion. …
[32]Dinsdale v R (2000) 202 CLR 321, 325–6 [6] (emphasis added). See also DPP v Werry [2012] VSCA 208, [52]–[53] (Warren CJ, Maxwell P, Buchanan, Weinberg and Bongiorno JJA).
And Kirby J (with whom Gaudron and Gummow JJ agreed) said:[33]
[33]Ibid, 339–40 [57]–[60] (emphasis added).
The legal process before the Court of Criminal Appeal was, as described, an appeal. This is a creation of statute.[34] An appeal may take several forms, the precise nature in a particular case depending upon the legislation in question.[35] Here, that legislation, by providing for an appeal, required the demonstration of error before the appellate court enjoyed the authority to disturb the decision subject to appeal. In Lowndes v The Queen,[36] this Court remarked that:
‘a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. ... The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice.’
The necessity to show error in such a case is fully accepted by courts deciding appeals against sentence.[37] … Because the imposition of a sentence involves the exercise of judgment and evaluation upon which minds can differ, it bears close similarities to the making of a discretionary decision. Like such a decision, if properly imposed, a sentence will not be disturbed on appeal merely because the appellate court would have reached a different result had the responsibility of sentencing belonged to it.[38] As in the case of appellate review of a discretionary decision, a brake is imposed upon undue appellate disturbance of primary decisions (and unwarranted appeals seeking that relief) by the necessity to identify an error that justifies and authorises appellate intervention. Such an error may involve the adoption by the primary judge of an incorrect principle, giving weight to some extraneous or irrelevant matter, failing to give weight to some material considerations, or a mistake as to the facts.[39]
As on appeal from discretionary decisions, it will sometimes not be possible to identify, with exactness, an error of the foregoing kind; yet the result that is challenged may be so manifestly unreasonable or plainly wrong that the appellate court will be able to infer that, in some unidentified way, there has been a failure to exercise the power properly.[40] In appellate review of sentencing, it will commonly be the case that the appellate court’s authority to intervene will derive from a conclusion that the resulting order is so disproportionate to the matter to which it relates as to afford the foundation for concluding that, in some way, the exercise of the powers of the primary judge has miscarried.[41]
The existence of this residual basis for appellate intervention is well established. In fact, it is inherent in the provision by statute of a facility to appeal against sentence to a court of criminal appeal. It enables such a court to correct ‘idiosyncratic views’[42] of individual judges about punishment for particular crimes or types of crime and to replace a sentence that is manifestly disproportionate to the circumstances. Such disproportion can arise where the punishment imposed is considered to be plainly excessive. But it can also arise where such punishment is judged to be manifestly inadequate.
[34]State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) (1999) 73 ALJR 306, 322 [72]; 160 ALR 588, 609.
[35]Fleming v The Queen (1998) 197 CLR 250, 258–260 [17]–[21]; cf Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281, 297–298 (Glass JA).
[36](1999) 195 CLR 665, 671–672, [15].
[37]See eg R v Tait (1979) 24 ALR 473, 476; Allpass (1993) 72 A Crim R 561, 562; R v Clarke [1996] 2 VR 520, 522.
[38]Cf House v The King (1936) 55 CLR 499, 504–505.
[39]House v The King (1936) 55 CLR 499, 505; Cranssen v The King (1936) 55 CLR 509, 519–520; Harris v The Queen (1954) 90 CLR 652, 655.
[40]House v The King (1936) 55 CLR 499, 505.
[41]Valentini and Garvie (1980) 2 A Crim R 170, 174; Davey (1980) 2 A Crim R 254, 259–261.
[42]Cf R v Osenkowski (1982) 30 SASR 212, 213 (King CJ); cf R v P (1992) 39 FCR 276, 285.
Sentencing, as the High Court has recently repeated, is a discretionary judgment. There is no single correct sentence for an offender and an offence.[43] An appellate court’s power can only be engaged if the court is satisfied that the sentencing judge’s discretion miscarried because in the result the judge imposed a sentence that was below the range of sentences that could be justly imposed for the offending consistently with sentencing standards.[44] Thus we remind ourselves that the Court must be astute not to interfere simply because we would, if sentencing at first instance, have imposed a different sentence. It is only if it is ‘plainly apparent’ that the sentence is inadequate, as being ‘manifestly … too short’, that the Court is entitled to intervene.
[43]Bugmy v The Queen (2013) 302 ALR 192, 198 [24] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).
[44]Ibid. See also Munda v WA (2013) 302 ALR 207, 213 [34] (French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ).
The Director’s submission
In summary, the Director made the following submissions.
First, it was submitted that it is no longer necessary that there be something more than manifest inadequacy for the appeal to succeed, although it was accepted that there remains a residual discretion to refuse to intervene even if sentencing error has been shown.[45]
[45]DPP v Karazisis (2010) 31 VR 634, 658 [103]–[105]. See also Green v The Queen (2011) 244 CLR 462, 479–80 [43]; DPP v Werry [2012] VSCA 208, [60]; Bugmy v The Queen (2013) 302 ALR 192, 198 [24], 204 [48]; Munda v WA (2013) 302 ALR 207, 221 [72].
Secondly, the Director pointed out that the sentence passed was well below the prosecution’s range[46] as put to the sentencing judge (which was a total effective sentence of 16 to 20 years’ imprisonment, with a non-parole period of 14 to 16 years). The original range as put to the sentencing judge was a total effective sentence of 18 to 22 years’ imprisonment, with a non-parole period of 15 to 18 years. It was revised after the sentencing judge indicated to the parties that he might find that the respondent suffered a ‘mental impairment’ — post-traumatic stress disorder — within the meaning of Verdins.
[46]R v MacNeil-Brown; R v Pigott (2008) 20 VR 677.
Thirdly, attention was drawn to the fact that the respondent’s offending against the three victims, together with ‘his psychological manipulation of each of them’, led to the destruction of natural family bonds. The judge considered many of the offences to be serious or very serious examples of such offences; and those not so described ‘were nevertheless part of a long period of violent and perverted conduct’.
Fourthly, it was submitted that despite his Honour’s characterisation of the offending, the individual sentences imposed on most of the charges ‘are at the lower end of the range properly available’. Furthermore, the cumulation between individual sentences was ‘modest’, and does ‘not reflect the additional criminality of the offending against multiple victims, over many months, nor that the respondent was sentenced as a serious offender on 13 of the 16 charges’.
Fifthly, the respondent has prior convictions for the rape of his sister-in-law and intentionally causing her serious injury. It was argued that the circumstances of those offences, together with the judge’s assessment of the respondent’s prospects for rehabilitation was to be regarded with ‘caution’, add to the need for specific deterrence.
Sixthly, it was submitted that factors such as delay, and time spent in protective custody, did not warrant the total effective sentence and the non-parole periods imposed.
Ultimately, the Director submitted that ‘the total effective sentence, and the non-parole period imposed, do not give sufficient weight to the nature and gravity of the offences’.
The respondent’s submissions
Counsel for the respondent made the following submissions (somewhat abbreviated).
First, the sentencing judge found that the respondent had been seriously sexually abused as a child over a number of years. The resultant post-traumatic stress disorder, and his highly dysfunctional background, were significant and that there was a real connection between them and the offending. It is plain that ‘the primary mitigatory factor here was the application of the principles of Verdins’.Thus the judge found that there was a nexus between the appellant’s childhood sexual abuse and the offending so that the first, third and fourth principles of Verdins were
the psychiatrist, Dr Lester Walton, that:
· the respondent suffered from a fundamental lack of trust in others and a lack of a capacity to really understand the feelings of others;
· this arose from an early distortion in personality development, a confusion about his own individuality and was related to the incest and violence in his family;
· the respondent suffered from a chronic post traumatic stress disorder which reached right back to his childhood, and as a result, his value systems were distorted;
· the respondent followed in his father’s footsteps, thus what he regards as acceptable is distorted because the way he was treated as a child, and means that he lacks the mental capacity to define appropriate boundaries between an adult and a child;
· the respondent is in an absolute minority on this score so far as adult sex offenders are concerned;
· it was difficult to quantify the extent of the contribution of the impairment to the offending;
· the respondent’s dysfunctional background in itself could not adequately explain the offending, the matter being more complex;
· although he was not clinically psychotic, the respondent was suffering from intense delusional beliefs; and
· the extent of the impact of his distorted, dysfunctional family environment was possibly quite strong because the respondent came to dominate his victims.
Secondly, it was put that the judge took into account a number of other factors in mitigation, including the respondent’s low intellect, the long period spent on remand, his depression, his developing remorse and rehabilitation, delay, the time spent in protection and his guilty pleas.
Thirdly, the principle of totality was invoked. It was submitted that ‘orders for cumulation and concurrency are quintessentially discretionary’; and that although minds might differ as to the length of some of the individual sentences and as to the manner in which the total effective sentence was arrived at, in the end the total effective sentence and the non parole period passed are not ‘plainly unjust’ and do not warrant appellate intervention.
Representative charges and ‘rolled-up’ charges
As we have observed, the sole ground of appeal does not invite scrutiny of the individual sentences which are only said to be ‘low’. The orders for cumulation, however, and their combined effect is impugned. It is therefore necessary to consider the nature of the offending against each victim on each charge, and whether the orders for partial cumulation on the individual sentences produced in total a sentence that was manifestly inadequate and which infringed the principle of totality.
First, it is to be recognised that there were representative and rolled-up charges. Charges 1 and 2 were representative charges of incest, and 4 and 5 of indecent act with a 16 or 17 year old child under care, supervision or authority, involving CN. Each of Charges 12 and 14 were rolled-up charges involving respectively JW and JN. It is necessary to notice the distinction between representative charges and rolled-up charges.
The essential difference between a representative charge and a rolled-up charge is that the representative count is a single instance of conduct which occurred in a wider context, but a rolled-up charge envelops more than one offence under the umbrella of a single charge. Charles JA described the difference between a
representative count and a rolled-up count in Jones:[47]
… [Counsel for the applicant] submitted that where an offender is to be sentenced in respect of an offence which is representative of a number of offences, the sentencing judge is not entitled to impose a sentence in respect of other crimes, but may take such other crimes into account in determining whether or not the offence for which the offender is being sentenced is an isolated offence. He submitted that in sentencing on a rolled-up count the discretion is to be exercised in the same way as it is when a count is treated as a representative count. …
I do not accept the submission that in sentencing on a rolled-up count the discretion is to be exercised in the same way as when a judge is sentencing on a representative count. It is of course correct that when sentencing on a representative offence the judge is not entitled to impose sentence in respect of other crimes. But in my view, a rolled-up count is entirely different from a representative count. In [counsel for the respondent’s] written submissions for the Crown, it was submitted, I think correctly, that rolled-up counts are a collection of counts bundled together into a single count, a procedure which can only occur by agreement with the defence and only for the purpose of a plea of guilty. If a rolled-up count were not included by agreement with the defence (demonstrated as here by the plea of guilty) the count would be vitiated for duplicity. [Counsel for the respondent] argued that reasons of public policy dictate the use of rolled-up counts on a plea of guilty to avoid burdening the presentment with multiple counts. The practice simplifies the task of the sentencing judge and works to the advantage of the prisoner. In the present case, for example, the filed-over presentment contained count 28, rolling up 24 discrete offences of theft which had appeared in separate counts on the original presentment. The use of rolled-up counts operates considerably to the advantage of an accused who intends to plead guilty. For in this case on the original presentment there were 24 counts of theft, for each of which the maximum sentence was ten years, providing a theoretical maximum sentence of 240 years. The compression of these counts into a single count of theft not only considerably eased the task of the sentencing judge, but may be thought by an appellant to give him a considerable benefit in return.
[47]R v Jones [2004] VSCA 68, [12]–[13] (citations omitted; emphasis added). See also R v Beary (2004) 11 VR 151, 156-7 [11]–[14] (Callaway JA).
The individual sentence on charge 1 — which was representative of penile-vaginal incest perpetrated on CN over a period of a year — attracted a sentence of four (4) years’ imprisonment, the statutory maximum being 25 years. And charge 2 — which was representative of multiple instances of oral copulation with CN — attracted a sentence of two (2) years and six (6) months’ imprisonment. In each case, the respondent fell to be sentenced as a serious sexual offender. Charges 3 and 4 were representative charges of indecent acts with CN, involving respectively several instances where CN was made to watch while the respondent had sex with her mother and occasions where CN was made to suck her mother’s breasts. Sentences respectively of one (1) year’s imprisonment and nine months’ imprisonment were imposed for these offences.
Charge 12 was a rolled-up charge of intentionally causing serious injury to JW. It attracted a sentence of three years’ imprisonment, the statutory maximum being 20 years. The conduct embraced by the charge included inflicting a severe beating resulting in injuries which included a pneumothorax, and an occasion where JW was burned with a heated knife resulting in permanent scarring.
The second rolled-up charge on the indictment was charge 14, involving JN. It was a charge of intentionally causing injury, and included instances where his throat was cut with a blade and where his leg was stomped on with sufficient force that he was taken to hospital. A sentence of one years’ imprisonment was imposed.
In oral argument the Director was constrained to acknowledge that the drafting of the ground of appeal and his submissions in the written case necessarily entail the concession that the individual sentences on each charge are not outside the range of those properly open in the sound exercise of the sentencing discretion. Rather, in his written submissions it was put that the individual sentences imposed on most of the charges ‘are at the lower end of the range properly available’. The ground of appeal thus focuses upon the orders for cumulation and concurrency, which in combination with low individual sentences are said to have resulted in a total effective sentence and a non-parole period which are manifestly inadequate in all of the circumstances.
During oral argument submissions were also advanced as to whether some of the individual sentences were manifestly inadequate and not in conformity with current sentencing practice. Although this question is irrelevant to the disposition of the appeal, to avoid any future misunderstanding, we should make clear that certain sentences, which we shall identify, paying due heed to the matters in mitigation, are disproportionately low as to demonstrate error in point of principle and are manifestly inadequate.
The sentence of four (4) years’ imprisonment on charge 1, which was representative of penile-vaginal incest on an almost daily basis for over a year, where the maximum available sentence is 25 years’ imprisonment, and in circumstances in which the respondent was to be sentenced as a serious sexual offender, is disproportionate to the offending.
Further, the sentence of three (3) years’ imprisonment on charge 12 for intentionally causing serious injury embraced two discrete episodes of offending, one of which resulted in a pneumothorax, and the other of which lasting disfigurement to JW’s chest and arm from a heated knife perpetrated with wanton cruelty. The maximum sentence for this offence is imprisonment for 20 years, and the respondent was to be sentenced for this offence as a serious violent offender. The sentence passed on this charge is manifestly inadequate.
Moreover, the sentences on the two rape counts — charges 9 and 10 — where the maximum available was 25 years’ imprisonment, where the respondent had been sentenced a decade earlier on three counts of rape, and where he was to be sentenced as a serious sexual offender on each charge is manifestly inadequate.
Finally, the sentence on charge 15 is also grossly inadequate and disproportionate to the nature of the offending. A youth who should have been able to rely on the respondent for protection, was subjected to cruelty and was intentionally seriously injured. The facts to which we have earlier referred disclose conduct calculated to be destructive of the natural bonds which should exist between brother and sister, in which CN was encouraged to commit acts of torture on JN. A sentence of three years’ imprisonment for this offending is disproportionately low and demonstrates error.
The application of principle requires a sentencing judge to avoid imposing artificially inadequate sentences in order to accommodate the mandates of cumulation. Where there are multiple charges on an indictment, a judge should, pass appropriate and proportionate sentences on each individual count. After the sentences for each individual charge have been arrived at, the totality principle requires the sentencing judge to have regard to the aggregate sentence that should be imposed to reflect the totality of the criminal conduct.[48] A sentencing judge, having imposed proper individual sentences on each count, and having arrived at orders to effect cumulation or concurrency as between the individual sentences, must then stand back and examine the total effective sentence to ensure that it reflects the overall criminality for which the offender is being sentenced and so as to ensure that it is not crushing. If necessary, this may be achieved by adjusting the orders for total or partial cumulation or concurrency, or by lowering the individual sentences.[49]
[48]Mill v The Queen (1988) 166 CLR 59, 62–3.
[49]We acknowledge that there are differing views as to whether there is any single correct approach. In our view, however, the correct approach is for the sentencing judge to pass appropriate individual sentences, and – depending on the sentencing regime being applied – order total or partial cumulation or concurrency. A court should, in our opinion, avoid imposing artificially inadequate sentences in order to accommodate totality: see R v Lomax [1998] 1 VR 551; DPP v Grabovac [1998] 1 VR 664.
In assessing whether the orders for cumulation and concurrency have resulted in a total effective sentence and non-parole period which both are manifestly inadequate, however, we approach the orders for partial cumulation on the basis of that the individual sentences that have been imposed fall toward the low end of the range of sentences that adequately reflect the respondent’s degree of criminality on each charge.
Resolution of the appeal
We have previously set out in moderate detail the extensive and careful findings made by the sentencing judge. Although, as the Director put it in oral argument, the judge ‘ticked all the boxes’, we have come to the view that the total effective sentence — produced by inadequate cumulation between individual sentences — and the non-parole period are manifestly inadequate. The judge, in some fashion that is not readily apparent from his reasons, but which is apparent when regard is had to the orders for cumulation, and the resultant total effective sentence and non parole period has fallen into error.
The respondent was born 17 January 1967. He was aged between 41 and 43 years at time of the offending, 45 years at the time of sentence, and is now aged 46 years of age.
During an attack on his sister-in-law on 5 November 1996, he raped her by penetrating her vagina with his penis on two occasions and digitally once, and intentionally caused her serious injury. He pleaded guilty to three counts of rape and one count of intentionally causing serious injury, and on 24 March 1998 was sentenced to be imprisoned for four and a half (4½) years, with a non-parole period of three (3) years. Although, of course, he does not fall to be punished again for those offences, even making due allowance for Verdins considerations, such serious and relevant prior convictions demonstrate that the commission of the offences now under consideration cannot be characterised as an uncharacteristic aberration. It would appear that the respondent was not deterred by the sentences of imprisonment imposed upon him in 1998 from the commission of similar crimes a decade later. He has little claim to leniency. His moral culpability for the instant offences — despite the sentencing judge’s opinion that the respondent’s moral culpability was somewhat reduced, and that general and specific deterrence and denunciation should be sensibly moderated — is extremely high. The community requires protection from him. In our opinion, any sentence passed upon him was thus required to punish him sufficiently to deter him from the commission of like offences in the future.[50]
[50]Veen v The Queen(No 2) (1988) 164 CLR 465, 477–8; R v Bolton and Barker [1998] 1 VR 692, 700.
The sentencing judge found that the respondent experienced a grossly dysfunctional social and psychological family environment, which involved a combination of violence perpetrated by his father against him and other family members, and sexual abuse committed against him by his two older brothers. He suffered, the experts agreed, chronic post-traumatic stress disorder which existed at the time of the offending, such post-traumatic stress disorder being properly described as a mental impairment for Verdins purposes. So much may be acknowledged. The relevance of an offender’s abuse earlier in his life will greatly vary from case to case. Such evidence cannot be adduced with a general expectation that it will necessarily lead to a significant reduction in the sentence to be imposed.[51] Every case must depend on its own facts.
[51]R v AWF (2000) 2 VR 1, 4–5 [7]; GEM v R [2010] VSCA 168, [54].
The sentences imposed upon the respondent must objectively reflect the degree of his criminality. Thus we think that, even allowing for the effects of his blighted childhood upon him, the orders for modest partial cumulation passed upon him overestimate the extent to which his objective criminality may be seen to be ameliorated.
We need not set out the other mitigating features found by the judge, including the pleas of guilty, incipient remorse, insight and rehabilitation, and delay. The judge acknowledged that the respondent fell to be sentenced as a serious offender on 13 of the 16 counts on the indictment (albeit he did not think disproportionate sentences were called for). The respondent’s status as a serious offender for the purposes of sentencing may have been given too little weight or the mitigating features undue weight in synthesising what effective term of imprisonment would properly reflect the totality of the respondent’s criminality.
Another very significant factor which may have been undervalued in the exercise of the sentencing discretion, is the effects on the three victims of the respondent’s offending. They were subjected to a reign of terror. They were brainwashed. They are physically and psychologically scarred. They have had the natural trust that should exist between a mother and her children, and between sister and brother, tainted (if not destroyed). Indeed, the respondent’s conduct was calculated to effect the destruction of the family bonds. The effects on the three victims are immense and ongoing. Although the effects on the victims cannot be permitted to swamp all other considerations, the very serious nature of the protracted offending upon them must attract fitting punishment. The respondent’s offending was extremely grave.
It may be accepted that were it not for the very serious violence perpetrated on the victims, the sentence passed on the respondent for the sexual component of the offending would fall within but toward the bottom of the range of sentences available for such very serious sexual offending.[52] The violence, however, raises the totality of the offending to a different objective order of seriousness.
[52]For example, see DPP v OJA (2007) 172 A Crim R 181.
The principles of proportionality — that the severity of the punishment be just and commensurate with the offender’s degree of criminality — is fundamental to the sentencing process.[53] It operates to define both the upper and lower limits of punishment. Where the offender is to be sentenced for multiple offences the effective sentence will be less than the sum of its parts because the severity of the sentence increases exponentially as it increases in length.[54] Any sentence must be no more severe than is necessary to satisfy the various objectives of sentencing.[55] The principle of proportionality thus constrains both excessively lenient as well as the overly severe responses to crime. [56] That said, the multiple offences of serious violence including torture and persistent cruelty to members of the family inflicted in frightening circumstances, adds markedly to the objective seriousness of the respondent’s total criminality.
[53]Azzopardi and Ors v The Queen (2011) 35 VR 43 [57].
[54]Ibid, [62].
[55]Ibid, [61].
[56]R v Whyte (2002) 55 NSWLR 252; R v McNaughton (2006) 66 NSWLR 566 [15]; Maurice v The Queen (1992) 2 NTLR 115, 116-7; ALRC, Same Crime, Same time: Report 103, Sentencing of Federal Offenders [5.3].
Notwithstanding the great care with which the sentencing judge approached this difficult sentencing task, conscious of the various mitigating factors to which we have referred, when regard is had to the objective gravity of the offences of violence and sexual abuse considered in combination, a total term of imprisonment greater than that imposed was required. We are persuaded that error in principle has been demonstrated as the combined effect of the orders for cumulation has produced a total effective sentence which disproportionately reflects the totality of the respondent’s criminality. The orders for cumulation are manifestly inadequate and must be set aside. There is no occasion to exercise any discretion not to intervene.
Re-sentencing
As we have said the individual sentences on each charge are not the subject of this appeal. Those sentences will be confirmed.
With respect to the necessary orders in this case for cumulation and concurrency, as we have already observed, all of the charges on the indictment — save for charges 11, 14 and 16 — require the respondent to be sentenced either as a serious sexual offender or a serious violent offender, so that the sentences imposed must be served cumulatively unless otherwise ordered. By contrast, the sentences on charges 11, 14 and 16 are to be served concurrently unless otherwise ordered.
The sentence of four years’ imprisonment on charge 1 (incest) will be the base sentence. We would order 18 months of the sentence on charge 2 (incest); nine (9) months of the sentence on charge 4 (indecent act); six (6) years of the sentence on charge 5 (indecent act); 12 months of the sentence on charge 6 (procuring an act of sexual penetration); 21 months of the sentence on charge 7 (procuring an act of sexual penetration); three (3) months of the sentence on charge 8 (intentionally causing serious injury); 18 months of the sentence on charge 9 (rape); 12 months of the sentence on charge 10 (rape); 18 months of the sentence on charge 12 (intentionally causing serious injury); three (3) months of the sentence on charge 13 (procuring an indecent act); and 12 months of the sentence on charge 15 (intentionally causing serious injury); to be served concurrently with the sentence on charge 1 and with each other.
We would not order any concurrency of the sentence of three (3) months’ imprisonment on charge 3 (child pornography), so that the whole of that sentence will be cumulative on all other sentences.
Further, we would order that three (3) months of the sentence on charge 11 (intentionally cause injury); six (6) months of the sentence on charge 14 (intentionally cause injury); and nine (9) months of the sentence on charge 16 (false imprisonment); be served cumulatively with the sentence on charge 1 and on all other sentences.
Pursuant to s 6F of the Sentencing Act 1991we would cause to be entered in the records of the court that the respondent is sentenced as a serious sexual offender with respect to charges 1, 2, 3, 4, 5, 6, 7, 9, 10 and 13; and as a serious violent offender with respect to charges 8, 12 and 15.
We have, of course, given discrete consideration of those factors which exist in the material before the court which bear upon the question of when the respondent should be eligible for mitigation of confinement and, in turn, rehabilitated under conditional supervision.[57] In our opinion, having regard to all relevant circumstances, the minimum period of imprisonment that the respondent should in all justice serve before the possibility of conditional release on parole[58] is 12 years. We would thus fix a non-parole period of 12 years’ imprisonment.
[57]R v Mulvale (unreported, VSCA, 20 February 1996). See also R v Bernath [1997] 1 VR 271, 278; R v Yates (1998) 99 A Crim R 483; R v Watts[1998] 4 VR 244.
[58]R v Morgan(1980) 7 A Crim R 146, 154; R v Power(1974) 131 CLR 623, 628, 629. See also Deakin v The Queen (1984) 58 ALJR 367, 54 ALR 765; Bugmy v The Queen (1990) 169 CLR 525, 536.
It is our intention that the effect of those proposed orders be reflected in the table immediately following:
Charge Offence Sentence Concurrency / Cumulation Actual
Cumulation
1 – CN Incest 4 years
(SSO)
BASE BASE [4 years] 2 – CN Incest 2 years 6 months
(SSO)
18 months concurrent 12 months 3 – CN Produce child pornography 3 months (SSO) Nil 3 months 4 – CN Indecent act with 16 or 17 year old child under care, supervision or authority 1 year
(SSO)
9 months concurrent 3 months 5 – CN Indecent act with 16 or 17 year old child under care, supervision or authority 9 months (SSO) 6 months concurrent 3 months 6 – CN Procuring an act of sexual penetration of a 16 or 17 year old child under care, supervision or authority 2 years
(SSO)
12 months concurrent 12 months 7 – CN Procuring an act of sexual penetration of a 16 or 17 year old child under care, supervision or authority 2 years
(SSO)
21 months concurrent 3 months 8 – CN Intentionally cause serious injury 18 months (SVO) 3 months concurrent 15 months 9 – JW Rape 3 years
(SSO)
18 months concurrent 18 months 10 – JW Rape 2 years
(SSO)
12 months concurrent 12 months 11 – JW Intentionally cause injury 6 months 3 months cumulative 3 months 12 – JW Intentionally cause serious Injury 3 years
(SVO)
18 months concurrent 18 months
13 – JN Procuring a child under 16 to take part in an indecent act 6 months (SSO) 3 months concurrent 3 months 14 – JN Intentionally cause injury 1 year 6 months cumulative 6 months 15 – JN Intentionally cause serious injury 3 years (SVO) 12 months concurrent 2 years 16 – JN False imprisonment 18 months 9 months cumulative 9 months Total Effective Sentence: 16 years’ imprisonment Non-Parole Period: 12 years
As we have observed on other occasions, s 6AAA of the Sentencing Act 1991 requires the Court to indulge in a somewhat artificial exercise.[59] Nonetheless, and in so far as it is necessary, pursuant to s 6AAA of the Sentencing Act 1991 we declare that, but for the pleas of guilty, we would have sentenced the respondent to a total effective sentence of 20 years, upon which we would have fixed a non-parole period of 16 years.
[59]We respectfully endorse the views expressed by Kaye J in R v Flaherty (No 2) (2008) 19 VR 305. See also SD v R [2013] VSCA 133, [63] (Ashley, Redlich and Priest JJA); Youil v R [2013] VSCA 228, [36] (Priest JA); cf [40] (Neave JA).
We would make the necessary declaration for pre-sentence detention.
Finally, we confirm all other ancillary orders made by the County Court, including that for sex offender registration for life, forensic sample retention and forfeiture.
ROBSON AJA:
Introduction
On 17 February 2012, the respondent pleaded guilty in the County Court to committing 16 sexual and violent offences between December 2008 and March 2010 against his former de facto partner and two of her children, a girl (aged 16 at the time
the offending began) and a boy (aged 15 when the offending began). At the time of the offending, the respondent was 41 to 43 years of age. The respondent was sentenced to a total effective sentence of 13 years and a non-parole period of 10 years. The Director of Public Prosecutions appeals against the total effective sentence and the non-parole sentence as being manifestly inadequate.
The respondent says that the judge found that the respondent’s prior offending was ‘bizarre’ and ‘… was clearly motivated by the trauma you [the respondent] felt about your own sexual abuse which was made clear by you before, during and after the offending, particularly the spontaneity of your reference to payback for what the victim’s husband had done to you’.[104]
[104]Reasons at [98].
The respondent submits that it might well be concluded that he was literally crippled by a highly dysfunctional background of violence and incest which numbed his personality and emotional development, and that he suffered from an overwhelming post-traumatic stress disorder arising from prolonged and serious childhood sexual abuse.
The respondent says that, in this sense, he was in the minority so far as sex offenders are concerned. The respondent says that there was a real nexus between his mental impairment and the offending. The respondent says that the extent of that impairment obviously reduced, perhaps significantly reduced, the sentences which otherwise would have been imposed upon him.
The respondent submits that, unless it can be properly demonstrated that the nexus finding should not have been made or that the judge took account of irrelevant considerations or clearly gave any undue weight to some consideration and the weight he gave to the nexus finding (thereby moderating the sentences passed), then this Court should not intervene.
In relation to totality, the respondent says that the Director asserts that the orders as to cumulation and concurrency were modest and that in the end they have resulted in a total effective sentence and non-parole period which are manifestly inadequate.
The respondent says that there has been a good deal of authority in this Court upon totality in recent times.[105] The respondent refers to Bogdanovich,[106] where Ashley and Weinberg JJA said, in a joint judgment:
The totality principle requires that where an offender is sentenced for a number of separate offences, the judge must ensure that the total effective sentence does not exceed that which is a ‘just and appropriate measure of the total criminality involved’. The totality principle is said to ‘defy precision either of description or implementation’. Sometimes it is described as a requirement of ‘just deserts’, and whether the total effective sentence offends that principle is often a ‘matter of impression’. A convicted offender should be sentenced not simply and indiscriminately for every separate criminal act, but for what in a broad sense can be characterised as his or her overall criminal conduct.
Where a number of technically separate offences have been committed, but they can fairly be described as ‘parts of a multi-faceted course of criminal conduct’, it will often be appropriate to order substantial concurrency.
Closely related to the totality principle is the requirement that the sentencing judge avoid the imposition of a crushing sentence.[107]
[105]Referring to Koumis v The Queem [2013] VSCA 47, Morgan v R [2013] VSCA 33, Waughv R [2013] VSCA 36, Robertsv R[2012] VSCA 313, and Continv R [2012] VSCA 247.
[106][2011] VSCA 388.
[107]Ibid [63]-[65] (footnotes omitted).
The respondent says that a total effective sentence which is fair and just is achieved by moderating orders for cumulation and concurrency, rather than the individual sentences, although it was recognised Postiglione v R that there may be cases where totality will be satisfied by passing low individual sentences than might otherwise have been passed.[108]
[108](1997) 189 CLR 295.
The respondent says that the judge ordered cumulation as between all the sentences, absent those in relation to charges 5 and 7. The respondent says the orders for cumulation ranged between about one third to one half of the individual sentence imposed. The respondent says that charges 4, 5, 6, 7, 9 and 10 all occurred on the same occasion and added three years to the overall head term. The respondent submits that orders for cumulation and concurrency are quintessentially discretionary. The respondent says in the present case, they could not be described as inadequate.
The respondent says that the judge was obviously aware of the effect of the judgment of the High Court in R v RHMcL.[109] The respondent says that the trial judge said that he had to be astute not to undermine the legislative policy applicable to the sentencing of serious sexual offenders.[110] In addition, the length of the individual cumulation orders made in each case reflected this legislative policy.
[109](2000) 203 CLR 452.
[110] Reasons, [133].
Section 6D of the Act provides:
If under section 5 the Supreme Court or the County Court in sentencing a serious offender for a relevant offence considers that a sentence of imprisonment is justified, the Court, in determining the length of that sentence—
(a)must regard the protection of the community from the offender as the principal purpose for which the sentence is imposed; and
(b)may, in order to achieve that purpose, impose a sentence longer than that which is proportionate to the gravity of the offence considered in the light of its objective circumstances.
The respondent takes issue with the submission of the Director that the primary factor in mitigation in this case was the respondent’s plea of guilty. The respondent says that the primary mitigating factor was the application of the principles in Verdins and the judge’s findings in that regard.
The respondent concludes that, although minds might differ as to the length of some of the individual sentences in this case and as to the way in which the total effective sentence was arrived at, in the end the total effective sentence and the non-parole period passed are not (in the respondent’s submissions) plainly unjust and do not warrant appellate intervention.
Conclusion
The Director appeals against the total effective sentence of 13 years and the non-parole period of 10 years. The Director does not suggest that the non-parole period would have been inappropriate if the total effective sentence of 13 years was not inappropriate. The Director does not suggest that the discount for the plea of guilty to the offences was in error, nor that the trial judge erred in taking into account the mitigating factor of Verdins being enlivened by the nexus between the respondent’s psychological illnesses coupled with his low intelligence.
The Director does not allege that the trial judge acted upon a wrong principle or took into account some extraneous or irrelevant matter or failed to take into account some relevant matter. The sole ground relied on by the Director is the final ground identified in House v The King:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.[111]
[111](1936) 55 CLR 499, 504-505 (emphasis added).
To establish this ground it is incumbent on the Director to establish that the total effective sentence was below the range that could be reasonably imposed in the circumstances of this case. The Director did not seek to identify the lower limit of the range, save to repeat the range put to the trial judge by the prosecution of 16-20 years with a minimum of 14-16 years. If this be the case, then the lower end of the permissible range would be 16 and 14 years, whereas the respondent was sentenced to 13 and 10 years.
In exercising his discretion, the trial judge had a great many factors to take into account. His Honour was required to form a conclusion as to the relevant facts relating to the counts to which the respondent had pleaded guilty. His Honour was required to have regard to the maximum penalty for the offences, current sentencing practice, the nature and gravity of the offences, the respondent’s culpability and degree of responsibility for the offences, the impact of the offences upon the victims of the offences, the personal circumstances of the victims, the fact that the respondent pleaded guilty and that stage at which he did or indicated he would do so, the respondent’s previous character, and the presence of any aggravating or mitigating factors concerning the respondent or of any other relevant circumstance.[112]
[112]Sentencing Act 1991, s 5(2).
The trial judge was also to consider the purposes for which sentences may be imposed:[113]
(a)to punish the offender to an extent and in a manner which is just in all the circumstances;
(b)to deter the offender or any other persons from committing offences of the same or a similar character;
(c)to establish conditions within which it is considered by the Court that the rehabilitation of the offender may be facilitated;
(d)to manifest the denunciation by the Court of the type of conduct in which the offender engaged; and
(e)to protect the community from the offender.
[113]Sentencing Act 1991, s 5(1).
This is not an exhaustive list of all relevant matters which the trial judge must take into account. The weight that the judge gives to each factor is a matter for the judge. Nevertheless, it is important to the administration of justice that there be uniformity in sentencing. In Everett, McHugh J said:
The approach of a court to a jurisdiction that specifically authorises a Crown appeal against sentence must necessarily be different from the approach that this Court takes on an application for special leave to appeal against an order setting aside a conviction. The jurisdiction to hear a Crown appeal against sentence is conferred on a Court of Criminal Appeal so that that Court can ensure that, so far as the subject matter permits, there will be uniformity of sentencing. Uniformity of sentencing is a matter of great importance in maintaining confidence in the administration of justice in any jurisdiction. Sentences that are higher than usual create justifiable grievances in those who receive them. But inadequate sentences also give rise to a sense of injustice, not only in those who are the victims of the crimes in question but also in the general public. Inadequate sentences are also likely to undermine public confidence in the ability of the courts to play their part in deterring the commission of crimes. To permit the Crown, as well as convicted persons, to appeal against sentences assists in maintaining confidence in the administration of justice.[114]
[114]Everett, 306.
Admittedly, those observations were made before the amendments made by the Criminal Procedure Act 2009 and the abolition of the application of double jeopardy principle in the hearing of any appeal against sentence. But in my opinion, the importance in parity is still a major factor that underlies the principle of identifying the appropriate range of sentences reasonably open to the judge for the particular offences before him.
In my opinion, no directly comparable case to that before the Court was identified by the parties. Nevertheless, as the High Court has explained in Munda, the Court must determine the appropriate range for the case under consideration. The task does not merely involve ascertaining from decided cases what the Courts have found in the past to be the appropriate range and applying that range as the yardstick. Rather, it is the duty of the Court to determine for itself what is the appropriate range of sentences that were reasonably open to the trial judge and determine whether the sentence imposed was manifestly inadequate in relation to that range. In doing so, the Court may have regard to what the Courts have found in the past to be the appropriate range, other cases that involve similar elements to those in the case before it, as well as the prescribed penalties, in forming its own opinion as to the reasonably appropriate range of sentences that were open to the trial judge on the case that was before him, bearing in mind all the matters to which the trial judge was required and entitled to have regard.
As mentioned, the Director placed reliance on the suggested range put forward by the prosecution of a head sentence of 16-20 years. The submission of the prosecution accepted that the trial judge would find Verdins enlivened and that a discount would properly be given for the guilty plea. A sentence of 20 years would have aligned the offences with that not uncommonly given for murder with a guilty plea and the application of Verdins. The Director also submitted Sentencing Snapshots for incest and rape.
In R v Verdins,[115] the Court of Appeal held that where an offender suffers from impaired mental functioning then the condition is relevant to sentencing in at least the following six ways:
[115](2007) 16 VR 269 (Verdins).
1.The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
2. The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
3. Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
4. Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.
5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily 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.
In this case, the trial judge found that 1, 3, and 4, were enlivened.
In Charles v The Queen,[116] this Court (Maxwell P, Redlich JA and Robson AJA) examined the factors relevant to establishing a link between a mental condition and the offending conduct as follows:
[116](2011) 34 VR 41; [2011] VSCA 399.
1.The Verdins’ principles are and should be should be regarded as exceptional.
2.The onus lies on the offender to establish the facts to enliven the Verdins’ principles on the balance of probabilities as a mitigating factor.
3.Cogent evidence, normally in the form of an expert opinion, is ordinarily necessary if the principles in Verdins are to be enlivened.
4.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 or her in the future.
5.The offender must establish that the offender’s disability had the effect 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.
6.Verdins has no application in respect of a mental condition postulated to have existed at the time of the offending unless the condition relied upon can be seen to have some ‘realistic connection’ with the offending; or ‘caused or contributed’ to the offending; or is ‘causally linked’ to the offending.[117]
[117](2011) 34 VR 41;[2011] VSCA 399, 69-70 [162] (citations omitted).
In Verdins, the Court of Appeal said:
Impaired mental functioning at the time of the offending may reduce the offender’s moral culpability if it had the effect of:
(a) impairing the offender’s ability to exercise appropriate judgment;
(b)impairing the offender’s ability to make calm and rational choices, or to think clearly;
(c) making the offender disinhibited;
(d)impairing the offender’s ability to appreciate the wrongfulness of the conduct;
(e) obscuring the intent to commit the offence; or
(f) contributing (causally) to the commission of the offence.
As we have said, this is not to be taken as an exhaustive list.[118]
[118](2007) 16 VR 269, [26].
There was no suggestion by the Director that the trial judge did not properly apply the principles relevant to Verdins finding that the respondent’s mental condition had a ‘realistic connection’ with the offending; or ‘caused or contributed’ to the offending; or was ‘causally linked’ to the offending.
I accept the respondent’s submission that the main mitigating factor relied on by the judge was Verdins, and not the guilty plea.
The Director referred to DPP v DJ,[119] where the learned President assembled all the decisions relied on by both the Director and the respondent in the matter before him in a Table that listed all of the decisions in descending order of length of sentence. Table 2 listed the same decisions, but with a particular focus on whether force or violence was used and, if so, what form it took.
[119](2011) 211 A Crim R 367; [2011] VSCA 250.
The Director referred to the fact that the highest sentence was in DPP v DJS,[120] where the total effective sentence was 16 years. The offender pleaded guilty. The victims were six children and step children aged 4-10 years. The aggravating features included sexual depravity of the highest order, immense impact on victims, abuse of trust, threats and inducements, very young victims, and the production of pornography. No Verdins principles were enlivened. The lowest sentence in Table 1 was a total effective sentence of 3 years.
[120][2003] VSCA 9.
After the instance of a total effective sentence of 16 years in Table 1, there were three instances of 15 years, one at a total effective sentence of 13 years, and then four of 12 years. What is apparent from the list is the wide range of circumstances. I think it is fair to say, however, that sentences of 14 and 15 years appear to be at the upper end of the range of cases involving incest and sexual abuse within a family. The total effective sentence imposed in this case was two years short of 15 year maximum referred to.
Incest and rape both attract a maximum penalty of 25 years imprisonment. The counts involving incest and rape in the present case were extremely serious. There were horrific aspects to the offences in this case. However, they did not involve small children, abuse of which is usually recognised as the most heinous form of sexual abuse. On the other, hand the respondent had a prior conviction for rape and several of the offences he was convicted of involved extreme violence against those he should have been protecting. In my opinion, the offences in this case did not fall far short of the above mentioned worst cases, but in my view the Director has not established that the sentences were below the range of sentences that could be justly imposed for the offences consistently with sentencing standards.
A particularly serious aspect of the criminal conduct of the respondent was the use of violence, which I think might be fairly described as sickening violence, against his victims. This aspect of his conduct that has caused me great concern in assessing the appropriate range of penalties that were open to the trial judge.
But for the plea of guilty to all the offences and the enlivening of Verdins principles, it is likely that the total effective sentence would have been well above 16 years. Nevertheless, in my opinion, the total effective sentence imposed in this case tended towards leniency. A hasher sentence might have been imposed, particularly in the light of the violence involved in the offending conduct. That, however, is not determinative. The test involves a finding of error on the part of the sentencing judge in the exercise of his discretion. In order to so find, I have to be satisfied that the total effective sentence imposed and the non-parole period were unreasonable or plainly unjust, in that the sentence was below that reasonably open in the circumstances of the case.
For the reasons given above, the Director has not satisfied me on the submissions and material put before the Court that the total effective sentence or the non-parole period was below that which could be ‘justly imposed for the offences consistently with sentencing standards’,[121] and was therefore manifestly inadequate.
[121]Bugmy, 198 [24].
If I am wrong, then I would be required to consider whether the Director’s appeal should nevertheless be dismissed on the grounds of the residual judicial discretion. This Court considered several factors that might be relevant in the exercise of this discretion in Karazisis.[122] The Court referred to factors such as a significant delay between the sentencing of an offender and the hearing of the appeal against sentence, where an offender has been given a non-custodial sentence and has complied with its terms for a significant period, and where there may have been a serious deterioration in the offender’s health or mental wellbeing, issues of parity. No submissions were made by the parties on the exercise of this discretion.
[122]Karazisis, 657-660 [100]-[115]; see also Munda, 219-222[64]-[78].
If I am wrong on the manifestly inadequate ground, then I can see no reason why the Court should exercise its discretion to reject the Director’s appeal.
I would dismiss the appeal.
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