DPP v OJA
[2007] VSCA 129
•22 June 2007
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| DIRECTOR OF PUBLIC PROSECUTIONS v. OJA | No. 396 of 2006 |
| DIRECTOR OF PUBLIC PROSECUTIONS v. WBA | No. 397 of 2006 |
| DIRECTOR OF PUBLIC PROSECUTIONS v. EBD | No. 398 of 2006 |
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JUDGES: | NETTLE, ASHLEY and REDLICH JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 7 June 2007 | |
DATE OF JUDGMENT: | 22 June 2007 | |
MEDIUM NEUTRAL CITATION: | [2007] VSCA 129 | |
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CRIMINAL LAW – Sentencing – Director’s appeal – Manifest inadequacy – Sexual penetration with children under 16 – Indecent acts – Incest – Producing and possessing child pornography – Offences committed by natural father, mother and step-father over many years – Worst case offending – Volunteered confessions of crimes that may otherwise not have come to light for many years – Respondents sentenced as serious sexual offenders – One respondent re-sentenced to a higher term of imprisonment.
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| APPEARANCES: | Counsel | Solicitors |
For the Crown | Mrs C M Quin | Ms A Cannon, Solicitor for Public Prosecutions |
| For the Respondent OJA | Mr L C Carter with Mr R F Edney | Verhoeven & Curtain Solicitors |
| For the Respondent WBA | Mr P G Priest QC with Mr S R Johns | Cameron J Hannebery Solicitors |
| For the Respondent EBD | Mr P M Taft SC with Ms F L Dalziel | Robert Davis |
NETTLE JA:
This is an appeal by the Director of Public Prosecutions against sentences of imprisonment imposed on the respondents upon their pleading guilty to a range of interrelated sexual offences committed between 1998 and 2005.
The respondent OJA was born on 22 September 1955 and therefore is now 51 years of age. At the time of offending (between 31 December 1998 and 23 August 2005) he was between 43 and 49 years of age. On 18 October 2006 he pleaded guilty before a judge of the County Court to nine counts of incest (counts 1, 2, 3, 4, 8, 9, 10, 11 and 12); 17 counts of indecent act with a child under 16 years of age (counts 5, 6, 7, 13, 14, 16 , 17, 19, 22, 23, 25, 26, 28, 31, 34, 36 and 37); 15 counts of taking part in an act of sexual penetration with a child under 16 years of age (counts, 15, 18, 20, 21, 24, 27, 29, 30, 32, 33, 35, 38, 39, 40 and 41); one count of producing child pornography (count 42); and one count of possessing child pornography (count 43).
On 1 November 2006, the judge sentenced OJA on each of the nine counts of incest to six years’ imprisonment; on each of the counts of indecent act with a child under 16 years of age, to four years’ imprisonment; on each of the counts of taking part in an act of sexual penetration with a child under 16 years of age, to five years’ imprisonment; on the count of producing child pornography, to two years’ imprisonment; and on the count of possessing child pornography, to one year imprisonment. The judge ordered the one year of each of the sentences imposed on counts 7, 13, 15, 23, 26, 28, 29 and 41 and six months of each of the sentences imposed on counts 36 and 42 be served cumulatively on the sentence imposed on count 1, making for a total effective sentence of 15 years’ imprisonment, and further ordered that OJA serve not less than 11 years imprisonment before being eligible for parole.
The grounds of appeal against OJA’s sentence are that the individual sentences, the total effective sentence and the non-parole period are all manifestly inadequate (ground 1); that the judge erred in failing to impose a longer sentence than that which was proportionate to the gravity of the offence considered in light of the objective circumstances pursuant to s 6D of the Sentencing Act 1991 (ground 2); and that the judge erred in the application of s 6E of the Sentencing Act, by expressing his orders in terms of cumulation rather than of concurrency (ground 3).
The respondent WBA was born on 27 May 1968 and therefore is now aged 39 years. At the time of offending (between 1 November 2002 and 24 August 2005) he was between 34 and 37 years of age. On 18 October 2006 he pleaded guilty before the judge to nine counts of indecent act with or in the presence of a child under 16 years’ of age (counts 1, 2, 3, 11, 12, 14, 15, 16 and 17); 20 counts of incest (counts 4, 5, 6, 7, 8, 9, 10, 13, 18, 19, 20, 21, 22, 23, 25, 26, 27, 28, 29 and 30); one count of attempted incest (count 24); one count of producing child pornography (count 31); and one count of possessing child pornography (count 33).
On 1 November 2006, the judge sentenced WBA on each of the twenty counts of incest to six years’ imprisonment; on each of the counts of indecent act with or in the presence of a child under 16 years of age, to four years’ imprisonment; on the count of attempted incest, to six years’ imprisonment; on the count of producing child pornography, to two years’ imprisonment; and on the count of possessing child pornography, to one year of imprisonment. The judge ordered that one year of each of the sentences imposed on counts 1, 10, 14, 25 and 31 be served cumulatively on the sentence imposed on count 6, and on each other, making for a total effective sentence of 11 years’ imprisonment, and further ordered that WBA serve not less than seven years imprisonment before being eligible for parole.
The respondent EBD was born on 17 August 1970 and therefore is now aged 36 years. At the time of her offending (between 1 November 2002 and 24 August 2005) she was between 32 and 35 years of age. On 18 October 2006 she pleaded guilty before the judge to five counts of indecent act with or in the presence of a child under 16 years’ of age (counts 11, 12, 14, 16 and 17); 16 counts of incest (counts 7, 8, 9, 10, 13, 18, 19, 20, 21, 22, 23, 25, 26, 27, 28 and 29); one count of attempted incest (count 24); one count of producing child pornography (count 32); and one count of possessing child pornography (count 34).
On 1 November 2006, the judge sentenced EBD on each of the 16 counts of incest, to six years’ imprisonment; on each of the five counts of indecent act with or in the presence of a child under 16 years of age, to four years’ imprisonment; on the count of attempted incest to six years’ imprisonment; on the count of producing child pornography, to two years’ imprisonment; and on the count of possessing child pornography, to one year of imprisonment. The judge ordered that six months of the sentence imposed on counts 16 and 32 and one year of the sentence imposed on count 21 be served cumulatively on the sentence imposed on count 10, making for a total effective sentence of eight years’ imprisonment, and further ordered that EBD serve not less than four years imprisonment before being eligible for parole.
The facts
In brief, the facts of the matter are as follows. EBD was previously married to another man and on 1 November 1989 she gave birth to their son, A. WBA was previously married to another woman and on 20 July 1993 that woman gave birth to WBA’s son, B. During 1993 and 1994 EBD had an extra marital sexual relationship with OJA which resulted on 31 December 1994 in the birth of a daughter, C. On 10 October 1998 EBD married WBA and on 19 October 1998 she bore him a daughter, D. Throughout the period in which the offences were committed, WBA and EBD were married and living together with custody of A, B, C and D. Those four children and a fifth child, E, who was born 19 May 1992 and at relevant times lived over the road from WBA and EBD, are the victims of the offences. OJA used to baby-sit the children on a regular basis and exploited the opportunity to commit the offences to which he pleaded guilty.
OJA’s offences
The judge described the offences to which OJA pleaded guilty as follows:
“[Counts 1 to 14] in the presentment involve your own child C. All are representative counts. Count 1, incest, relates to an occasion when your daughter was approximately four years of age and you inserted your penis into her mouth. Between that time and her attaining the age of nine, you committed a further 17 of such offences.
[Count 2], incest, relates to the penetration of her vagina with your finger which first occurred when she was approximately four years of age and last occurred on 6 May 2005, when she was age ten.
[Count 3], incest, involved making her insert a vibrator into your anus which first occurred when she was approximately four years of age, and there were two further such offences when she was aged nine.
[Count 4], incest, entailed making your daughter insert her fingers in your anus, first occurring when she was aged four, and the second occasion when she was aged nine.
[Count 5], is a count of committing an indecent act with a child under 16, whereby you made your daughter masturbate your penis, such offences commencing when she was approximately four years of age and occurring on a further 29 occasions until 7 May 2005 when she was aged ten.
[Count 6] is another such count relating to a number of occasions when you fondled your daughter's buttocks and vagina and performed simulated sexual intercourse with her, commencing when she was aged about four, and continuing until 1 May 2005, involving 15 occasions in total.
[Count 7] is a count of committing an indecent act in the presence of your daughter namely exposing your penis and masturbating, the first occasion being when she was approximately four years of age, and further instances of this offence occurred in 2003 and 2004.
[Count 8], incest, involved the insertion of your tongue in your daughter's vagina, first occurring when she was approximately six and a half years old and repeated on some 19 other occasions between 25 September 2001 and 5 July 2004.
[Count 9] is a count of incest relating to the insertion of your penis in her vagina, first occurring on 4 July 2001, when she was aged six and a half and repeated on a further 14 occasions up to 10 December 2004 when she was nine years of age.
[Count 10], incest, was committed by inserting your penis in your daughter's vagina, first occurring on 22 June 2001 when she was aged six and a half and repeated on seven subsequent occasions up to 6 May 2005 when she was aged ten.
[Count 11] is a count of incest involving penetration of your daughter's anus with your penis, first occurring when she was aged six on 2 December 2001, and repeated on 11 subsequent occasions up to 6 May 2005.
[Count 12] is a count of incest whereby you penetrated your daughter's anus with various objects including a vibrator, first occurring on 3 July 2001 when she was aged six and a half, and repeated four times thereafter until 7 November 2004.
[Count 13] is a count of committing an indecent act in the presence of your daughter and relates to committing sexual offences against other children in her presence, the first occasion being 22 June 2002 when you performed oral sex on B, then aged eight, and your daughter was then aged seven. Similar conduct occurred on four other occasions up to 1 May 2005 when your daughter was ten years of age.
[Count 14] is a count of committing an indecent act with your daughter, a child under 16, and first occurring when she was eight years of age whereby you directed her to perform sexual acts in your presence, such as inserting a vibrator into her anus. Such conduct was repeated on three further occasions up to 1 January 2005..
[Counts 15 to 23] relate to the child, D. These offences occurred on occasions when you were looking after the children of WBA and EBD while they were away from the house and all but three are representative counts.
[Count 15], a charge of sexual penetration of a child under ten, is a count covering a number of occasions when you inserted your penis into the mouth of D, first occurring on 15 September 2001 when she was aged only two years and 11 months. Between then and 30 April 2005, you repeated this offence on eight further occasions. The last time when the child was aged six.
[Count 16] is a count of committing an indecent act with a child under 16 whereby you made this child masturbate your penis, first on 8 February 2002 when she was three and a half years of age and repeated six times up to 1 May 2005.
[Count 17] is a specific count of committing an indecent act with a child under 16 whereby on the weekend of 30 - 31 March 2002 you made B, then aged eight, place his penis in the mouth of D, then aged three and a half.
[Count 18] is a count of sexual penetration of a child under ten involving the insertion of your tongue in D’s vagina, occurring on 14 April 2002 and repeated on 9 August 2003 when the child was aged four.
[Count 19] is a count of committing an indecent act with a child under 16 whereby you rubbed your penis between the child's legs on ten occasions between 9 February 2003 and 1 May 2005, during which period the child's age ranged from four and a half to six and a half years.
[Count 20] is a specific count of sexual penetration of a child under ten occurring on 13 April 2003 when you inserted your finger in D’s vagina, the child's age at that time being four and a half.
[Count 21] is a count of sexual penetration of a child under ten relating to incidents on 13 September 2003 and 20 April 2005 when you inserted your finger in D’s anus, the first such offence occurring when she was aged four years and 11 months.
[Count 22] is a specific count of committing an indecent act in the presence of a child under 16 occurring on 13 September 2003 when you exposed your penis and masturbated in the presence of D.
[Count 23] is a specific count of committing an indecent act in the presence of a child under 16, which occurred on 1 May 2005, when in the course of giving D and C a shower together, you fondled their vaginas and buttocks and induced each of them to masturbate you simultaneously.
[Counts 24 to 35] involve sexual offences against B, born on 20 July 1993. They span the period from February 2002 to June 2005 when B’s age ranged from eight to 11 years. They include six counts of sexual penetration and the other five counts involve indecent acts with this child. Sexual penetration took a number of forms as follows:
[Count 24], placing B’s penis in your mouth on 24 February 2002 and repeated a further ten times during the period ending 7 June 2003.
[Count 27], placing your finger in his anus on 22 June 2002 and repeated four times in the period ending 29 December 2002.
[Count 29], placing your penis in this child's anus on 29 December 2002 and repeated on 22 March 2003.
[Count 30], placing your penis in his mouth on 20 January 2003 and repeated three more times up to 7 June 2003.
[Count 32], placing his penis in your mouth on 1 August 2003 and repeated five more times up to 30 June 2005.
[Count 33], inserting your finger in the child's anus on 6 September 2003 and
[Count 35], placing your penis in his mouth on 10 June 2005.
The indecent acts likewise took the following various forms.
[Count 25], making B masturbate your penis on 9 March 2002 and repeated twice up to 18 January 2003.
[Count 26], over the weekend of 30 - 31 March 2002 making B, then aged eight, place his penis in the three and a half year old
D’s mouth.
[Count 28], on 22 June 2002, making your daughter C suck your penis while you performed the same act on B - the latter action being the subject of Count 24.
[Count 31], exposing your penis and masturbating in the presence of B on 8 February 2003 and repeated on a number of occasions up to 23 August 2005.
[Count 34], masturbating B’s penis and fondling his buttocks and repeating this offence twice more up to 18 August 2003.
[Counts 36 and 37] relate to E, born 19 May 1992.
[Count 36] entailed exposing your penis and masturbating in front of this girl on 29 March 2002 when she was aged nine years and ten months and repeating such conduct on 21 December 2002.
[Count 37] refers to your touching this complainant's thighs and buttocks indecently while she was practising gymnastics on 29 March 2002.
The complainant in respect of [Counts 38 – 41] is A, born 1 November 1989. All of these counts involve sexual penetration of a child under 16 under your care, supervision or authority and take various forms.
[Count 38], placing your penis in A’s mouth on 21 June 2002 when he was aged 12 and a half, and repeated on 10 August 2003 and 14 May 2005.
[Count 39], placing your penis in A’s mouth on 10 August 2003 and repeated on two or three occasions during 2004.
[Count 40], A inserting his penis in your anus on 10 August 2003, which conduct was repeated on 13 May 2005.
[Count 41], placing your penis in A’s anus on 14 May 2005, which was a repetition of similar conduct two or three times beforehand during 2004.
[Count 42] is a representative count of producing child pornography, and relates to all incidents where you photographed or video taped C, B and D in indecent poses in the period between April 2002 and December 2004.
Finally [Count 43] covers a number of child pornography images found in your possession on 23 August 2005 when police officers executed a search warrant at your home.”
OJA’s prior offences
OJA has a history of indecent exposure, masturbation in public places and sexual assault that started in his teens. He was put on probation at the age of 12 for carnal knowledge of a four year old girl. At the age of 15 he was admitted to psychiatric hospital for his wandering tendency and indecent exposure on 23 June 1970. After being discharged on 17 August 1970, against medical advice, he began to expose himself to young girls and continued to do so on many occasions until put into Turana Boys Home for four years. Even then he continued to expose himself and also began to have homosexual experiences. After leaving Turana, he continued to expose himself until he was fined $1,500 for two counts of indecent assault on young girls in 1979. Subsequently, he was treated with Aversion Therapy at Hobson Park Hospital. For one year following that treatment he had no reported inclination to expose himself. But the urge to do so resurfaced and in April 1983 he was again charged with exposing himself to young girls. He was given Aversion Therapy once more and for a while it worked. But once again he began to re-offend as before. He was diagnosed as suffering from schizophrenia in 1976 and again in 1983, although there is no consistent report of psychotic symptoms or treatment thereafter. He also abused alcohol and he used marijuana. He was under Forensicare for his deviant sexual urges and behaviour between 1999 and 2002. During that time he had extensive therapy and was treated with œstrogen for increased libido. The œstrogen caused him to develop Gnynecomastia and in turn that necessitated mastectomy of his right breast. But even as he was undergoing the œstrogen treatment he committed many of the offences for which he fell to be sentenced. When he presented to psychiatric hospital shortly before his arrest, he reported exposing himself to young girls three months prior to his admission and he admitted to an increase in his sexual deviate urges and also to sexually abusing his daughter and other children.
Apart from the offences for which he fell to be sentenced on this occasion, he had 19 convictions for sexual offences from eight court appearances between September 1972 and February 2002. The judge referred to them in his sentencing remarks as follows:
“[Y]ou have admitted 19 prior convictions from eight court appearances between September 1972 and February 2002. These include ten charges of wilful and obscene exposure in a public place, two charges of committing an indecent assault upon a female, five counts of committing an act of gross indecency, and two counts of taking part in an act of sexual penetration with a child aged between ten and 16 years. The last mentioned crimes attracted an effective total sentence of four years imprisonment with a non-parole period of three years on 4 March 1985. They involved a 12 year old child entrusted to your care by unsuspecting parents. As early as 1972 when you were aged just short of 17, you were sentenced to an aggregate term of nine months detention in a youth training centre upon two charges of wilful and obscene exposure in a public place. Subsequently you have received fines, probation and thereafter a term of three months imprisonment for breach of probation in 1983, upon charges of wilful and obscene exposure in a public place, and in 1999 a Community Based Order followed by an Intensive Correction Order in 2002 in respect of similar offences. It was a special condition of the probation ordered in 1983 that you undergo medical treatment, likewise pursuant to the Community Based Order in 1999 when you had treatment on the Sexual Offenders Program and when released under the Intensive Correct Order in 2002, you had further treatment through Forensicare. Some of the therapy involved was called aversion therapy, but according to your counsel, this treatment was unsuccessful and it seems that it did nothing more than fuel a perverted habit already entrenched in your life. Indeed, while undergoing such therapy you were committing some of the offences now before the court.”
OJA’s mental state
According to the opinion of Dr Tame Kena, consultant psychiatrist, which was produced on the plea, OJA suffers from paraphilia, pædophilia and exhibitionism, (recurrent acts of exposing himself to others, and sexual abuse of minors), and he has repeatedly been involved in sexual offences of that nature despite intensive therapies and treatments through Forensic Services. He also has a history of psychotic experiences and as has been noted he was diagnosed as suffering from schizophrenia in 1976 and 1983. His prognosis is doubtful. Up to the point of sentencing he was unable to learn from his past offending and its consequences and he expressed the belief that the only way he would be able to overcome his deviant urges was by chemical castration.
If the law of sentencing were completely logical, OJA would be sentenced on the basis that his moral culpability is to some extent reduced by his psychosexual dysfunction.[1] The reasons for sentencing sexual deviates in that fashion were examined in the dissenting judgment of Kirby J in Ryan v The Queen.[2] But the idea has not found favour with the bulk of society, or the majority of the High Court. Rather, as McHugh J explained in Ryan,[3] the persistently punitive attitude of the community towards sexually deviate crime mandates that sexually deviate offenders be severely punished for their offences and, even if long sentences do not deter them or others with similar inclinations, they may at least have the effect of putting the offenders in a place where they cannot harm others for the time being. To similar effect, Hayne J observed that, if on examination of a particular offender’s circumstances it is demonstrated that the offender is likely to re-offend, the likelihood of re-offending might ordinarily be thought to go in aggravation not mitigation of the sentence to be imposed.
[1]cf. R v Tsiaras [1996] 1 VR 398; R v Verdins [2007] VSCA 102.
[2](2001) 206 CLR 267, 304 [126]-[128], in diss.
[3](2001) 206 CLR 267, 283 [47].
Ground 1 - OJA
Under ground 1 of the OJA appeal, the Director contends that the gravity or seriousness of OJA’s offending in relation to each victim reveals that the individual sentences imposed on OJA are manifestly inadequate and that the extent of cumulation is also manifestly inadequate. In the Director’s submission, it is to be inferred that the judge failed altogether or at least sufficiently to take into account the need for specific deterrence, gave too much weight to factors going to mitigation, gave insufficient weight to the maximum penalties, gave insufficient weight to OJA’s criminal history, gave insufficient weight to the grossness of the breach of trust constituted of the offences, gave insufficient weight to the grotesque and perverted nature of the offences and the number of victims involved, and failed to cumulate the individual sentences sufficiently to reflect the gross violation of trust committed by OJA on two of the children who were entrusted to his care. Counsel for the Director argues that OJA’s offences were so grave, so depraved and so protracted as to amount to one of the worst cases of offending of this kind that may be imagined. She submits that, in those circumstances, anything less than a total effective sentence of 18 years’ imprisonment could not possibly be regarded as adequate.
I accept the Director’s submissions up to a point. I agree that it is difficult to conceive of worse examples of offending of the kind in question, except for offences like those, for example, the subject of R v Taylor[4] which involve violence or otherwise the infliction of physical pain.[5] Even then, the victims in this case were so young, the offences committed upon them were so unspeakably awful, and the offending was so frequent and protracted, that it may be considered as being within the worst case category. As a matter of first impression, one might well say that a total effective sentence of 18 years’ imprisonment would not be too much to impose.
[4](1991) 58 A Crim R 337.
[5]See also R v DH [2003] VSCA 220.
It is, however, not as simple as that. For as Hayne J said in Ryan,[6] the sort of emotion which offending of this kind evokes must be put aside. Disgust and revulsion for the offender and sympapthy for the victims cannot be allowed to cloud the sentencer’s vision. Sentencing principles in general and the Sentencing Act 1991 in particular demand that a sentencing judge balance against the enormity of OJA’s offending such mitigating factors as there may be; that OJA be granted an appropriate level of discount on sentence in recognition of his guilty plea, and an added significant or considerable discount for disclosing offences which might otherwise not have come to light; that the judge avoid the imposition of a crushing sentence; that the sentence be such as to facilitate the realisation of whatever prospects of rehabilitation may remain; and that the judge pay heed to current sentencing practices.
[6](2001) 206 CLR 267, 306 [133]-[134].
Moreover, it is apparent from the judge’s sentencing remarks that his Honour was well aware of those sentencing requirements and expressly noticed the bulk of them. As he put it:
“Your offending has reached the depth of depravity, and while no violence was involved, children of such tender years were easy prey to your inducements and their memories are likely to be forever scarred by their recollections of your criminality. Taking advantage of these children during your temporary care of them was a gross breach of trust, although ironically, in respect of A [and] of C, their mother and stepfather have committed similar offences upon them. Tragically, both A and C appear to be exhibiting unacceptable sexual behaviour, probably as a result of the corruptive effect of the sexual abuse to which they have been subjected.
Sentencing guidelines require me to take into account on the one hand principles of general and special deterrence, just punishment, denunciation of these appalling crimes and the fact that you are a serious sexual offender so that in respect of all counts, I must have regard to the protection of the community as the principal purpose for which the sentences are to be imposed. On the other hand, I must take into account the abovementioned mitigating factors along with the greater difficulty of serving a sentence in protective custody, the principle of totality and the need to avoid a crushing penalty. While you have been a longstanding paedophile, some regard must be had to your willingness to undergo treatment, albeit ineffective to date, and to your strong motivation towards rehabilitation.”
As it seems to me, therefore, the judge expressly took into account that the major purposes of the sentence were general and specific deterrence, just punishment and denunciation and, because OJA was a serious sexual offender in respect of the second and subsequent counts, that the protection of the community was paramount.[7]
[7]Sentencing Act 1991, s 6D(1); sentencing remarks at [58].
At the same time, it may be seen that the judge paid close regard to a range of significant mitigatory factors which included that OJA had made admissions to a treating psychiatrist (suggesting that he was motivated towards rehabilitation for his longstanding pædophilia and giving at least some reason to conclude that he could be successful);[8] that he had consented to his medical file being made available to the police; that had made “full and frank admissions” to the police during the course of interview; that he entered a plea of guilty at the earliest possible stage (thus saving the time, cost and ordeal of a trial and suggesting remorse); [9] that he recognised that he needed treatment for desires which had plagued him since he was aged 14;[10] that he had himself been a victim of sexual abuse at the hands of his elder brother from the age of six and a half until he was seven;[11] that he had a history of psychotic episodes;[12] and that he would serve his sentence in protective custody,[13] which as the judge observed would add to the hardship of prison.
[8]Sentencing remarks at [58]; and see the report of the psychiatrist, Dr Tame Kena of 14 September 2006 and the discussion on the plea, T60.19 – 60.25.
[9]Sentencing remarks at [53]; The Queen v Siganto (1998) 194 CLR 656, 666 [30].
[10]Sentencing remarks at [53].
[11]R v AWF (2000) 2 VR 1, 3 [3]-[7] (Ormiston JA), 10 [34] (Chernov JA).
[12]Sentencing remarks at [54].
[13]Sentencing Remarks at [58]; AB v The Queen (1999) 198 CLR 111, 152 [105]; R v Bangard (2005) 13 VR 146, 149 [13]-[14].
The judge did not refer specifically to the fact that OJA’s disclosures had brought to light offences which might otherwise not have been discovered. But, as counsel for OJA observed, the matter was the subject of submissions by OJA’s counsel on the plea and, as a matter of principle, it is plain that a voluntary disclosure of guilt which results in conviction of an offence which would not otherwise have been reported warrants an additional sentencing discount.[14] In those circumstances, it is not to be doubted that the judge approached the matter on that basis. OJA was entitled to be rewarded with a discount for his admissions and plea of guilty and with a considerable or significant added element of leniency for the fact that the offences which he disclosed were otherwise unknown to authorities.
[14]R v Ellis (1986) 6 NSWLR 603, 604D; Ryan v The Queen (2001) 206 CLR 267, 272 [12] and 295 [95]-[98]; R v Brazel (2005) 153 A Crim R 152, 159 [21].
The judge also did not specifically refer to current sentencing practices. But it is clear from the transcript of the plea that his Honour sought and was provided with a number of decisions said to be examples of the worst case category in which OJA falls - the prosecutor referred in particular to DPP v DJS,[15] R v Taylor,[16] and R v DH[17] - and it is implicit in the level of individual sentences and total effective sentence which his Honour imposed that he paid close regard to those decisions.
[15][2003] VSCA 9.
[16]58 A Crim R 337.
[17][2003] VSCA 220.
Although the maximum sentence for incest is 25 years’ imprisonment, current sentencing practice is to impose individual sentences of considerably less than that. For example, in DPP v DJS[18] the 44 year old respondent (35 years old at the time of offending) pleaded guilty to 39 counts of sexual offending including six counts of sexual penetration with a child under 10, two counts of indecent assault, two counts of gross indecency and one count of attempted sexual penetration with a child under 16, eight counts of indecent act with a child under six, four counts of indecent act in the presence of a child under 16, thirteen counts of incest, one count of attempted incest, one counts of producing child pornography and one count of being in possession of child pornography. A number of the counts were laid as representative counts. At first instance, the respondent was sentenced to a total effective sentence of 12 years’ imprisonment with a non-parole period of nine years. On a Crown appeal against sentence, that was held to be manifestly inadequate but, despite the fact that it was considered that the respondent was likely to remain sexually active for at least the next 20 years, on re-sentencing the greatest individual sentence imposed was only six years and the total effective sentence was 16 years with a non-parole period of 13 ½ years.
[18]Ibid.
In R v Taylor the 33 year old applicant pleaded guilty to one count of rape with aggravating circumstances; eight counts of taking part in an act of sexual penetration with a child under 10; three counts of attempting to take part in an act of sexual penetration with child under 10; 68 counts of taking part in an act of penetration with a child under 10; and eight counts of aggravated indecent assault. The judge at first instance imposed individual sentences ranging between one year imprisonment and 10 years’ imprisonment for the count of rape with aggravating circumstances (which consisted of the applicant having forcible anal sex with his eight year old son while his wife at his direction held the boy), and a total effective sentence of 23 years with a non parole period of 19 years.
In DPP v DH the respondent pleaded guilty to seven counts of incest, six counts of rape, one count of attempted incest and six counts of handling stolen goods and one count of possession of a drug of dependence. The respondent was 44 years old by the time of being sentenced. On re-sentencing, the highest individual sentences imposed were 10 years’ imprisonment for a continuing offence covering two penetrations with a cucumber of the female child victim’s anus and vagina and nine year’s imprisonment for a count of penile penetration of the same child’s anus, both of which offences were committed on the one occasion and videotaped by the respondent. The total effective sentence was 16 years, of which one year was referable to the offences of dishonesty, with a non-parole period of 13 years. It is to be noted that those offences were committed at a time when the maximum penalty was only 20 years’ imprisonment and not 25 years’ imprisonment as it is now.
With the exception of Taylor, the examples to which the prosecutor referred, and a number of others that might also be considered to be relevant,[19] suggest that an individual sentence of six years’ imprisonment is towards the upper end of the range for counts of incest, even after the increase in the maximum penalty to 25 years’ imprisonment, and certainly fairly within the range mapped out in DJS. Similarly, although the judge in this case only cumulated the individual sentences to a relatively limited extent, the total effective sentence of 15 years’ imprisonment is squarely within the range of all of the examples except Taylor.[20]
[19]See for, example, R v WDP [2005] VSCA 16; R v Crozier [2005] VSCA 188; R v PFG [2006] VSCA 130; R v VN (2006) 162 A Crim R 195; R v MKG [2006] VSCA 131; DPP v BGJ [2007] VSCA 64.
[20]See also R v Wood, (unreported, Supreme Court of Victoria, Court of Criminal Appeal, Phillips CJ, Crockett and Southwell JJ, 12 May 1992), where the TES was 16 years in a case involving 131 counts of which 66 were of incest committed over a 23 year period against five of the prisoner’s seven children; and, as well as the cases cited above in footnote 9, see Fox & Frieberg, Sentencing, State and Federal Law in Victoria, [12.426], where a number of the earlier decisions are analysed.
It is true, as the Director contends, that the respondent fell to be sentenced under s 6D of the Sentencing Act 1991 as a serious sexual offender on each of the second and subsequent counts. Prima facie, therefore, the sentence imposed on each of the second and subsequent counts was to be served cumulatively on the base sentence. But that was still subject to the principle of totality – albeit as modified by the effect of s 6E - and hence the need to avoid a crushing sentence.[21] The judge appears to have considered that to cumulate the individual sentences to any greater extent than he did would have resulted in a sentence which gave insufficient weight to the voluntariness of OJA’s disclosure and to such prospects of rehabilitation as remain.
[21]Cf. R v Gregory [2000] VSCA 212 [20]; R v Fuller-Cust [2002] VSCA 168 [144]–[146].
In the result, if I may say so with respect, it is hard to fault the way in which his Honour went about the task of formulating OJA’s sentence. At the end of the day, the only question is whether one or more of the individual sentences or the degree of cumulation should be regarded as manifestly inadequate in light of current sentencing practices. On balance, I am not persuaded that they are.
I start from the approach that there is no sentencing tariff as such. Apart from the maximum sentence prescribed by Parliament, the intuitive synthesis approach to sentencing implies an absence of necessary relationship between one case and another. Accordingly, as the law stands, any notion of a mathematical norm above or below which a case might be cast according to aggravating increments and mitigating decrements is precluded by a general prohibition on the use of two part
sentencing processes.[22] At the same time, it is of the nature of sexual offences that some instances of an offence are more serious than others. Since that is so, there is a need for at least some degree of comparison.[23] The requirement to have regard to “current sentencing practices” is properly to be understood in that context and the notions of manifest excessiveness and manifest inadequacy are similarly informed.[24]
[22]Wong v The Queen (2001) 207 CLR 584, 611 [74]-[77]; AB v The Queen (1999) 198 CLR 111, 121- 122 [15]-[18] and 156 [115].
[23] Cf R v Ngui & Tiong [2000] VSCA 78 [12].
[24] Wong v The Queen ibid, 591 [7]-[8] (Gleeson CJ) in diss.
Secondly, the need to have regard to current sentencing practices does not mean that the measures of manifest excessiveness and manifest inadequacy are capped and collared by the highest and lowest sentences for similar offences hitherto imposed. In fact, as in theory, each case is different and so it is always possible that a sentence may properly rise above or fall below the greatest and lowest sentences previously imposed. At the same time, however, the nature of criminal conduct is such that there is not infrequently sufficient similarity between two cases to imply that sentences should be comparable and, if they are not, that something has gone awry.
Thirdly, and importantly, it should not be thought that the statutory requirement to have regard to current sentencing practices forecloses the possibility of an increase or decrease in the level of sentences for particular kinds of offences. Over time, views may change about the length of sentence which should be imposed in particular cases and, when that occurs, the notions of manifest excessiveness and manifest inadequacy will be affected. Accordingly, to say of an individual sentence of six years, or a total effective sentence of 15 years, that it is near as large as any before imposed for offending of this kind, is not necessarily an answer to the question of whether it is manifestly inadequate. One must allow for the possibility that sentences to this point have simply been too low.
Fourthly, in this case the Crown did not argue that the level of sentencing in cases of this kind needs to be increased.[25] The Director’s submissions were pitched at the level that the sentences imposed are manifestly inadequate having regard to current sentencing practices.
[25]Cf R v Dandie & Downie [1998] 2 VR 517, 520-522, but see also R v Lim and Ko [1998] VSCA 54, BC 9805252, 10-11.
Fifthly, in the past, courts have not infrequently observed that offences of the kind committed by OJA represent a gross breach of parental trust that is likely to have a profound and lasting effect on the offender’s victims and, therefore, that they warrant stern punishment in order to mark the court’s denunciation of grotesque and degenerate criminal conduct and to provide such specific and general deterrence as may dissuade the offender from re-offending and dissuade other deviates from similar offending. More lately, it has been recognised that stern punishment may do little to deter deviate sexual offenders from re-offending, or to deter other sexual deviates from similar offending, and that the principal functions of sentencing in cases of this kind are the exaction of retribution and providing means to keep the offender off the street for as long as reasonably possible.[26] Yet while community protection may be reason in itself for a lengthy total effective sentence, it does not sanction preventative detention and it is very rare that it warrants a sentence under s 6D of the Sentencing Act 1991 disproportionate to the gravity of offending considered in light of its objective circumstances.[27]
[26]Ryan v The Queen (2001) 206 CLR 267 [47].
[27]Chester v The Queen (1988) 165 CLR 611, 618-9; R v Connell [1996] 1 VR 436, 442-3; R v Barnes [2003] VSCA 156 [21].
Sixthly, and subject to what follows, I would allow that some of the representative counts of sexual penetration in OJA’s case possibly warranted a larger individual sentence and, if the nature and gravity of the offences were the only significant consideration, I think that it would have been open to provide for a greater degree of cumulation than the judge allowed.
Seventhly, however, the difficulty with that sort of approach is that the total effective sentence thus produced would be likely to go beyond the reach of current sentencing practices - even for offending as gross as OJA’s - and more importantly it would leave out of account the discount to which OJA is entitled by reason of pleading guilty and making full admissions and the additional considerable or significant added element of leniency to which he is entitled for the fact that the offences which he disclosed were otherwise unknown to the authorities. After adjusting for those matters, the total effective sentence could not be more than, say, 17 to 18 years.
Finally, as senior counsel for the secondnamed respondent put it (in effect on behalf of all respondents), although this court might therefore say that it was open or even preferable to impose individual sentences on some counts of one or two years greater than those which the judge imposed, or by means of a greater degree of cumulation to produce a total effective sentence of one or two years more than the judge imposed, the issue for the present is different: there being no error in the judge’s reasoning process, a difference of only one or two years in a fifteen year total does not warrant appellate intervention.[28] I accept that submission.
[28]Everett v The Queen (1994) 181 CLR 295, 300; R v Clarke [1996] 2 VR 520, 522; DPP v Bright (2006) 163 A Crim R 538, 542 [10].
Moving then to the non-parole period, it is open to question why the judge ordered OJA to serve only 11 years’ imprisonment as the minimum term. As has been seen, OJA’s prospects of rehabilitation are regarded as “doubtful” and, given that s 6D of the Sentencing Act 1991 makes community protection the primary consideration, my initial impression was that a longer non-parole period was required - perhaps even that this was a case in which the offender should necessarily serve all of the sentence imposed come what may.[29]
[29]Sentencing Act 1991, s 11(1).
But once again, upon reflection I am not persuaded that the judge erred in the way in which he approached the matter. Unfortunately, his Honour did not state expressly how he arrived at the period of 11 years and, with respect, it would have been better if he had. But a non-parole period of 11 years in a total effective sentence of 15 years’ imprisonment is not necessarily so unusual as in itself to invite appellate scrutiny.[30] Arguably, it is also not so much short of the head sentence as to undermine public confidence in the sentencing process. Admittedly, OJA’s long-standing pædophilia implies that the risks of re-offending are high. But it is evident that the judge was well aware of that and took it into account. Furthermore, as the judge correctly observed, some regard had to be paid to OJA’s willingness to undergo treatment, even if treatment had proved ineffective to date, and to his strong motivation towards rehabilitation. Allowance had also to be made for OJA’s early plea of guilty and what the judge found to be genuine remorse. And, logically, the interests of community protection were likely best to be served if OJA were left with a significant incentive to improve himself. Finally, the judge was also entitled to assume that OJA would not be released on parole until and unless the Parole Board were satisfied that he was sufficiently improved to warrant that course being taken.[31] Despite my misgivings, therefore, I am not satisfied that it was beyond the bounds of the sound exercise of sentencing discretion to fix 11 years.
[30]Cf R v VZ (1998) 7 VR 693, 607 [15] and 700 [22]; DPP v Josefski (2005) 13 VR 85, 94 [43] (2), (3).
[31]The Queen v Bugmy (1990) 169 CLR 525, 530-1.
Ground 2 – OJA
Ground 2 of the Director’s appeal against OJA’s sentence was that the judge erred in failing to impose a sentence under s 6D of the Sentencing Act 1991 which is longer than proportionate to the gravity of the offence considered in light of the objective circumstances. That ground was abandoned, however, in the course of oral argument. Counsel for the Director conceded that the judge was not incorrect in taking the view that:
“The sheer length of this imprisonment [scil. 15 years with a non-parole period of 11 years] avoids the need to impose a sentence longer than that which is proportionate to the gravity of these offences considered in light of their objective circumstances in order to protect the community.”
In my view the concession was well made. Section 6D like its predecessor, s 5A(b), confers a discretion which is to be confined to very exceptional circumstances. As it was put in R v Connell,[32] it is only to be exercised where the judge is satisfied by acceptable evidence that a serious sexual offender is so likely to commit further crimes of violence (including sexual offences) that the danger to the community warrants a sentence longer than that which would be justified by the principle of proportionality. The conditions for exercise of the discretion would thus require the judge to be satisfied that the offender would remain a danger to the community beyond the period that totality would permit the offender’s detention to last.
[32][1996] 1 VR 436.
Despite the pessimism which infects OJA’s prognosis, I do not consider that one could be satisfied on the material which was before the judge that he is so likely to commit further sexual offences after 15 years of imprisonment that he should be detained for any longer than that. If the Crown were to make the case that he should be, it was incumbent on the Crown to persuade the judge by reference to the evidence and other material before the court that such an order was called for.[33] As it was, the prosecutor did no more than observe in passing that, because OJA was a serious sexual offender, it was open to the judge to impose a disproportionate sentence.
[33]Cf R v Tutchell [2006] VSCA 294 where a disproportionate total effective sentence of 12 years was imposed in circumstances where the evidence showed it to be probable that the applicant would continue to offend for so long as he was physically able.
Ground 3 – OJA
Ground 3 the Director’s appeal against the sentence imposed on OJA was that the judge erred by ordering that some of the individual sentences be served cumulatively on others, instead of formulating the order in terms of concurrency. But that ground was also abandoned in the course of oral argument, and again, in my view, properly so.
Inasmuch as s 6E provides that sentences shall be served cumulatively unless otherwise ordered, it is more usual, and arguably it is preferable to propound sentencing orders under s 6E in terms of those individual sentences which shall be served concurrently. But it is not essential for a judge to do it that way. So long as he or she makes plain which sentences are to be served cumulatively and which are to be served concurrently, there should be no problem unless it appears that he or she has misunderstood s 6E or otherwise misapplied its provisions. In this case there is no indication of that sort.
WBA and EBD’s offences
The judge described the offences to which WBA and EBD pleaded guilty as follows:
“The indecent act the subject of [Count 1] was masturbation of the complainant [A] by WBA, including sucking the complainant's scrotum, which action was photographed.
[Count 2] relates to masturbation by the complainant [A] of WBA, conduct which, like the conduct the subject of Count 1, was repeated.
[Count 3] is based on masturbation by WBA in the presence of the complainant [A].
[Count 4] relates to the complainant [A] performing oral sex on WBA, which conduct was repeated a number of times.
The incest the subject of [Count 5] was oral sex by WBA on the complainant [A] which occurred on more than 15 occasions in WBA and EBD’s home when EBD was out.
The incest the subject of [Count 6] was anal penetration by WBA of the complainant [A], repeated on seven further occasions.
[Count 7], incest, is a specific count relating to an occasion when
EBD walked in and found WBA performing oral sex on the complainant [A] and watched for a short time without expressing disapproval.
The incest the subject of [Count 8] was a reverse situation, when the complainant [A] performed oral sex on WBA in the presence of EBD, who allowed the conduct to continue.
[Count 9], incest, was constituted by EBD giving the complainant [A] oral sex in the presence of and with the encouragement of WBA.
The incest the subject of [Count 10] was penile vaginal intercourse by the complainant [A] with EBD in the presence of and with the encouragement of WBA in the prisoner's bedroom, which conduct was repeated on another occasion in the lounge room.
The indecent act the subject of [Count 11] was oral sex performed by
EBD upon WBA in the presence of the complainant [A].
In [Counts 15 to 30], the complainant is C, born on
31 December 1994, whose natural mother was EBD and whose step father was WBA.
The indecent act the subject of [Count 12] was oral sex performed by
EBD upon WBA in the presence of C, who was made to stand in front of them, naked.
[Count 13], incest, was oral sex performed by C upon WBA in the presence of her mother on one occasion in 2003.
[Count 14] is a representative count relating to C fondling
EBD’s breasts while she in turn fondled C’s vagina and C fondled WBA’s penis while all three were naked.
The indecent act in [Count 15] was fondling by C of WBA’s penis.
[Counts 16 to 29] inclusive relate to a series of sexual offences involving or in the presence of the complainant, C, recorded on the videotape entitled ‘Grub’.
The indecent act in [Count 16] involved WBA and EBD spreading C’s buttocks to expose her anus, directing her to suck EBD’s breasts and directing her to pose in an indecent manner for the camera.
[Count 17] relates to EBD performing oral sex on WBA, including licking his anus, in the presence of C.
The incest in [Count 18] was a penetration by EBD of C’s vagina with her tongue in the presence of WBA.
The incest the subject of [Count 19] was the penetration of EBD’s vagina by C with her tongue in the presence of WBA.
[Count 20] deals with the EBD penetrating C’s anus with her tongue in the presence of WBA.
[Count 21] relates to WBA penetrating C’s mouth with his penis in the presence of EBD.
In [Count 22], C penetrates EBD’s vagina with her fingers in the presence of WBA.
In [Count 23], the complainant is made to penetrate EBD’s anus with her tongue in the presence of WBA.
In [Count 24], attempted incest, WBA attempts to penetrate C’s anus with his penis in the presence of EBD, a specific count of attempted incest.
[Count 25] deals with WBA penetrating C’s vagina with his penis in the presence of EBD.
[Count 26] covers all incidents where WBA is photographed penetrating C’s vagina with his tongue in the presence of EBD.
In [Count 27], WBA penetrates C’s anus with his tongue in the presence of EBD.
In [Count 28], C is made to penetrate WBA’s anus with her tongue in the presence of EBD.
In [Count 29], C is made to penetrate the vagina of EBD with a vibrator in the presence of WBA.
[Count 30] is a representative count of incest constituted by oral sex performed by C upon WBA on 25 May 2004 and repeated in July or August of 2005.
[Count 31], producing child pornography, is a rolled up count pertaining to all of a number of incidents where WBA photographed or videotaped the complainant C and the complainant A in pornographic poses.
[Count 32], a charge of producing child pornography on the part of
EBD relates to an incident where she videotaped C in pornographic poses.
[Count 33], a charge of possessing child pornography on the part of WBA, relates to all photographs, including images located on his computer and videotapes depicting child pornography found in his possession on 24 August 2005, upon execution of a search warrant at the home of the prisoners.
Finally, [Count 34], a charge of possessing child pornography by
EBD, relates to the ‘Grub’ videotape found in her possession during the execution of such search warrants.”
We have viewed the “Grub” videotape, as the judge did and as we were requested to do by the Crown.
WBA and EBD’s previous offences
WBA had one prior conviction, for handling stolen goods, for which he was sentenced to be released on a community based order for a period of six months and EBD did not have any prior convictions.
Ground 1 - WBA
As with OJA, the Director contends that the gravity or seriousness of WBA’s offending in relation to each victim is such that the individual sentences and the extent of cumulation are manifestly inadequate. In the Director’s submission the level of sentencing implies that the judge gave insufficient weight to the gravity of the offences, the need for specific and general deterrence, the gross breach of trust and the multiplicity of the victims; that his Honour gave too much weight to factors going to mitigation; and that his Honour failed to order sufficient cumulation between the sentences.
In my view, there is more force in those submissions. Once again, it is hard to fault the manner in which the judge went about the sentencing process. His Honour’s sentencing remarks make plain that he took into account the circumstances of the offences,[34] the applicable maximum penalties,[35] the need for community protection,[36] and the need for just punishment and denunciation.[37] As his Honour was bound to do, he also took into account in favour of WBA a range of mitigatory considerations which included that WBA had made full admissions and entered an early plea of guilty, had a lack of prior relevant convictions and was of otherwise good character, had what the judge found to be a high level of remorse, regret and shame in respect of the offences, and had demonstrated some insight into the twisted thinking and warped logic that led to the conduct. There was a reasonable expectation that rehabilitation would be achieved. It was apparent that WBA would suffer additional hardship as a result of having to serve his sentence in protection, particularly in the light of what was perceived to be his relatively high intelligence and desire to remain active and occupied while in custody. There was also a need to avoid a crushing sentence. Thus as the judge put it:
“Turning to sentencing guidelines in respect of each of you, [WBA] becomes a serious sexual offender under the relevant legislation after Count 2, and must be sentenced as such on Counts 3 to 31 and Count 33. While [EBD] must be sentenced as a serious sexual offender on Counts 9 to 14, and Counts 16 to 29, Count 32 and 34. In respect of these counts I must have regard to the protection of the community as the principle purpose for which these sentences are to be imposed and also consider principles of general and specific deterrence, just punishment and denunciation of these heinous crimes. Against these factors must be weighed the above mentioned mitigating circumstances in so far as they apply to each of you, along with the greater difficulty of serving a sentence in protective custody and the principle of totality and the need to avoid, in each instance, a crushing penalty.”
[34]Sentencing remarks [85]-[120].
[35]Sentencing remarks [121]-[122].
[36]Sentencing remarks [133].
[37]Sentencing remarks [133].
Nevertheless, it seems to me that there are a number of reasons to conclude that the judge either so underweighted the enormity of WBA’s and EBD’s offending or so overweighted mitigatory considerations as to produce a total effective sentence that is manifestly too lenient.
In the first place, although WBA’s offending may not have been as bad as OJA’s, it was very serious indeed. As has been seen, it included 20 counts of incest, which in turn included eight occasions on which WBA sodomized his step son A (when the boy was between 13 and 15 years of age), numerous counts of oral sexual intercourse with A in the same period, on two occasions encouraging penile vaginal intercourse between A and his natural mother, EBD, and fifteen counts of sexual offences with or involving his step daughter, C (when she was aged between nine and 10 years), including counts of penile vaginal and anal penetration while being filmed on the Grub videotape which WBA directed.
In the second place, it appears to me that some of the individual sentences imposed on WBA may not give sufficient weight to the awful and repulsive nature of his offending or to the terrible and perhaps irreparable harm which he has done to his victims - children in relation to whom he stood in loco parentis; and that in terms of total criminality, it appears to me that the nature and gravity of WBA’s offences and his moral culpability were such as to warrant a total effective sentence of little less than that imposed on OJA. I do not overlook that WBA had no relevant prior criminal offences and that OJA had many. But, with offending of this kind, it is not ordinarily appropriate to make much allowance for an offender’s otherwise good behaviour[38] and, for reasons to which I shall come, I think that there are significant risks of WBA re-offending.
[38]R v T (1990) 47 A Crim R 29, 39.
In the third place, unlike OJA, WBA did not make voluntary disclosure to the authorities. Once tackled by the police, he made full and frank admissions, although in all the circumstances there was not much room for denial. But were it not for OJA’s report, WBA’s offending could well have gone undetected.
In the fourth place, while the judge found that WBA ultimately expressed remorse and some insight into his offending – and that finding is not challenged – for the reasons which follow, it is to be doubted that his sense of remorse and insight will last very long in the short to medium term.
At the time of sentencing, the judge had before him a psychological assessment of WBA prepared by Mr Ian Joblin, forensic psychologist, on the basis of Mr Joblin’s interviews of WBA on 23 August 2003 and 6 September 2006. The report was dated 20 September 2006. In that document Mr Joblin reported that WBA seemed to have limited insight into his offences and an almost self-righteous attitude towards his behaviour, including his behaviour in videotaping himself, EBD and C engaged in various sexual activities the subject of counts 16 to 29. Mr Joblin remarked that WBA’s attitude was a matter of serious concern in the sense that, although he was not unaware of why he was in gaol, he lacked the sort of insight and conscience that would have condemned his behaviour as depraved and because, despite his offending, he had difficulty in accepting why he could not see the children and believed that he should have access. Worse still, he tried to rationalise his behaviour as assisting in the sexual education of the children and on the further basis that he was trying to keep the family together. Mr Joblin concluded that the psychosexual disorder which WBA demonstrated by his offences was varied, but that a good deal of it was voyeurism and pædophilic behaviour, particularly with C, and that there were serious doubts as to WBA’s level of insight.
At the time of sentencing, the judge also had before him a reference from a prison chaplain, dated 15 October 2006, which his Honour said: “indicates that you have expressed a high level of remorse, regret and shame in respect of these offence and that you are appalled by the twisted thinking and warped logic that led to such conduct”. Unfortunately, that report has been lost. But accepting that its contents were as the judge recorded, it implies that between 20 September 2006 and 15 October 2006 or, in other words, four days before the sentencing hearing, WBA managed for the first time to generate a degree of insight and sense of empathy and remorse that had eluded him throughout the whole of the three years of his offending between November 2002 and August 2005, and in the following fourth year between arrest in August 2005 and the examinations by Mr Joblin in September 2006.
As has been noted, the judge’s finding is not challenged. But given the phenomenal turnaround in WBA’s apparent attitude so shortly before the sentencing hearing, it is open to question, and in my view it is to be doubted, that the apparent improvement may last very long in the in the short to medium term. As it appears to me, that is an issue which bears directly on the length of sentence needed to be imposed and, as far as can be told from the judge’s sentencing remarks, his Honour did not give it his attention.
Finally, the judge did not state in terms how he came to the non-parole period which he set in WBA’s case and, in contradistinction to OJA’s case, it appears to me that in WBA’s case the non-parole period of only seven years relative to a total effective sentence of 11 years is sufficiently unusual by comparison to other cases as, in the absence of reasons, to invite appellate scrutiny.[39] If one then re-examines the considerations which should bear on the non-parole period in WBA’s case, I consider that a longer non-parole period is needed to provide the sort of specific deterrence which may prevent WBA re-offending and that, in terms of general deterrence, a longer non-parole period would serve as a salutary warning to others affected by the sort of voyeurism, pædophilic behaviour and a lack of conscience identified as informing WBA’s transgressions.
[39]DPP v Josefski (2005) 13 VR 85, 94 [43](2).
In the result, I am satisfied that the sentence imposed on WBA is so manifestly inadequate as to warrant appellate intervention and in my view he should be re-sentenced to a higher penalty as outlined above. Bearing in mind, however, the principle of double jeopardy as it applies in Crown appeals, it is necessary to moderate the increase in sentence to a substantial degree. I would propose, therefore, that he be re-sentenced in the same terms as he was sentenced by the judge but with the additional stipulation that one year of the sentence imposed on count 4 and one year of the sentence imposed on count 24 be served cumulatively on the sentence imposed on count 6 and on each other. That would make for a total effective sentence of 13 years’ imprisonment of which I consider that he should serve not less than nine years before being eligible for parole.
Ground 2 - WBA
Ground 2 of the appeal against the sentence imposed on WBA was that the judge erred by failing to impose a sentence in accordance with s 6D of the Sentencing Act 1991 longer than was proportionate to the gravity of the offence considered in light of the objective circumstances. As with OJA, however, that ground was abandoned in the course of oral argument. Once again, the concession was well made. The Crown did not submit before the sentencing judge that WBA would remain a danger to the community beyond the period that totality would permit his detention to last. It is too late now to take a different approach.[40]
[40]Everett v The Queen (1994) 181 CLR 295.
Ground 3 – WBA
Ground 3 of the WBA appeal was that the judge erred by ordering that some of the sentences imposed on some of the counts be served cumulatively on others instead of formulating the order in terms of concurrency. That ground was also abandoned in oral argument and, for the reasons already expressed with respect to OJA, I consider that counsel for the Director was right to abandon it.
Ground 1 – EBD
Turing to the appeal against the sentence imposed on EBD, the Director’s case was that the individual sentences and degree of cumulation were manifestly inadequate, betraying failure on the part of the judge to give adequate weight to the fact that EBD was the natural mother of three of her victims and error on the part of the judge in giving too much weight to factors going to mitigation. It is fair to say though that the Director’s arguments against the sentence imposed on EBD seemed not to be pursued with the same vigour as the arguments against the sentences imposed on the other two respondents, and that, in the end counsel for the Director appeared to accept that it was difficult to justify the need for appellate intervention.
Whether or not that is so, however, I see no error in the judge’s sentencing synthesis. It is apparent from his Honour’s sentencing remarks that he rightly regarded the nature and gravity of EBD’s offences as appalling. It is also plain that his Honour understood the need to fashion a sentence which adequately reflected denunciation and provided adequate general and specific deterrence. His Honour said so in the passage of his sentencing remarks which is set out above. At the same time, the judge recognised that he was bound to take into account the factors which militated in favour of EBD; and, as the judge observed, they were very significant.
In terms of the nature and gravity of EBD’s offending, it was notable that she had only ever offended in the presence of and with the encouragement of WBA. It was significant too that, while her offences were in some respects just as vile as those of WBA, they were much fewer in number and, at least according to the victim impact statements, not productive of the same degree of harm. She remained in contact with her children, whom it seems still regarded her with love and affection and, at least in the case of A, put the blame squarely on WBA for so manipulating and controlling his mother that she had been led into depravity. To the extent that any of these things can be compared, therefore, it cannot be said that her offending was in or even near to the worst case category and plainly it was a lot less culpable than that of WBA. EBD also pleaded guilty at the first reasonable opportunity and co-operated with police and she was truly remorseful.
In terms of moral culpability, EBD was by all accounts quite pathetic. She came from an extremely disadvantaged background. She had suffered from a depressive personality disorder during various periods of her life, including the period when the offences were committed. According to the expert evidence before the judge, she had a weak personality structure, an almost non-existent sense of self, a profound degree of dependence on WBA and a proneness to being highly suggestible. Those attributes, coupled with poor self-concept and social disconnection had rendered her vulnerable to the sort of intentions and actions in which she became implicated at her husband’s instigation. In a report dated 16 October 2006, Mr Bernard Healy, clinical psychologist, observed that EBD’s childhood had been blighted by at least five changes of primary school in three different states of Australia and by witnessing constant violence inflicted upon her mother by her step father and as a result of being molestated at the hands of a sibling whilst aged 12 or 13. Consequently, her personality was unable to develop normally and was rendered towards being suggestible and vulnerable. She was conditioned to the idea of women, including herself, being subjected to the control of influential males and her strong tendency was towards being passive-dependant. She was by nature highly suggestible, had largely been unaware of her rights as a human being (given that they were never respected in her early life or life as an adult) and she had a very limited sense of self. In the result she would have been highly malleable in the context of her dysfunctional marriage to WBA and, although the entire blame for the offending could not be attributed solely to him, her case was a good example of how people with a personality structure like hers can be influenced in the most deleterious ways.
It goes without saying that the sentence imposed on EBD needed to meet the requirements of just punishment, denunciation and general deterrence. It also needed to provide adequate community protection against the possibility of re-offending in the short to medium term. But, given what I regard as being EBD’s substantially reduced moral culpability, there was room for sensible moderation of the requirements of denunciation and general deterrence and, as appears from Mr Healy’s report, there was little if any need for specific deterrence. Mr Healy concluded that, in considering the range of factors that predict sexual offence risk, EBD was towards the lower end of the risk continuum (as compared to other sexual offenders) in both the medium and long term and, on the balance of probabilities, most unlikely to re-offend, even in the absence of formal treatment. With treatment, he said, it would to be difficult to imagine her re-offending even under the influence of another predator like WBA.
All things considered, in my view, the individual sentences and the total effective sentence of eight years were for those purposes and otherwise comfortably within the range and, as I say, in the end I did not understand counsel for the Director really to contend to the contrary.
The non-parole period of only four year is perhaps more questionable because it represents only 50% of the total effective sentence and, as with the other respondents, the judge did not identify as such the factors which his Honour took into account in arriving at the figure. But on this occasion I am not persuaded that the brevity of the period is indicative of error. Despite the absence of express reasons on the point, all of the factors which the judge said that he took into account in formulating the individual sentences and total effective sentence also suggested that a considerable degree of leniency was warranted in the setting of the non-parole period. It appears to me to be implicit in his Honour’s reasoning that that is the way he approached it. In my view too, the fact that EBD was pushed into the offending by the machinations of WBA (as in effect he admitted in his record of interview), her diagnosed absence of pædophilic tendencies, her genuine sense of shame, remorse and contrition, and the apparent low likelihood that she will ever re-offend, were in this case sufficient to conclude that four years is the minimum time that justice requires her to serve.
Ground 2 - EBD
Ground 2 of the appeal against the sentence imposed on EBD was that the judge erred in failing to impose a sentence under s 6D of the Sentencing Act longer than was proportionate to the gravity of her offences. In oral argument, however, counsel accepted that in EBD’s case that ground was untenable.
Ground 3 - EBD
Ground 3 of the appeal against the sentence imposed on EBD was that the judge erred by formulating the sentence for the purposes of s 6E of the Sentencing Act in terms of cumulation rather than concurrency. But in oral argument counsel accepted that the argument was devoid of merit.
Conclusion
In the result, for the reasons which I have given:
a) I would dismiss the appeal against the sentence imposed on OJA
b)I would allow the appeal against the sentence imposed on WBA and quash the sentence. In lieu thereof I would re-sentence him, in the manner I have indicated, to a total effective sentence of 13 years’ imprisonment with a non-parole period of 9 years.
c) I would dismiss the appeal against the sentence imposed on EBD.
ASHLEY JA:
I have had the advantage of reading in draft the reasons for judgment of Nettle JA. For the reasons which his Honour gives in his very extensive analysis of the circumstances of the offending, the offenders, and principle, I agree in the disposition of the appeals which he proposes.
REDLICH JA:
I have also had the considerable benefit of reading in draft the reasons for judgment of Nettle JA. For the reasons which his Honour gives, and with which I entirely agree, I would dismiss the Director’s appeal against the sentences imposed upon the first and third respondents; would allow the appeal against the sentence imposed upon the second respondent; and would re-sentence the second respondent as his Honour proposes.
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