DPP v Shearer (a pseudonym)

[2019] VSCA 47

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0138

DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
v
OWEN SHEARER (a pseudonym)[1]	Respondent

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

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JUDGES:	WHELAN AP, McLEISH and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 February 2019
DATE OF JUDGMENT:	12 March 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 47
JUDGMENT APPEALED FROM:	DPP v Shearer (a pseudonym) [2018] VCC 934 (Judge Gaynor)

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CRIMINAL LAW – Crown appeal against sentence – Four charges of incest – Offences against step-daughter aged between 11 and 14 – Respondent with lengthy criminal history including violence against women – Aggravating post-offence conduct by respondent in attempting to persuade complainant and her mother to withdraw allegations – Breach of trust – Individual sentences of four years’ imprisonment – Total effective sentence 8 years and 6 months’ imprisonment – Whether individual sentences and total effective sentence manifestly inadequate – Appeal allowed – Resentenced to total effective sentence of 10 years and 6 months’ imprisonment with non-parole period of 7 years and 6 months – DPP v Dalgliesh (a pseudonym) [2017] VSCA 360 considered.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms D I Piekusis SC	Mr J Cain, Solicitor for Public Prosecutions
For the Respondent:	Mr D A Dann QC with Mr M P McGrath	Leanne Warren & Associates

WHELAN JA
McLEISH JA
WEINBERG JA:

1. On 14 June 2018, the respondent pleaded guilty in the County Court, at Melbourne, to four charges of incest involving his step-daughter.  The offending occurred between 2012 and 2015, when she was aged between 11 and 14.

1. The respondent was sentenced on 20 June 2018 as follows: 

Charges	Offence	Maximum	Sentence	Cumulation
1	Incest [Crimes Act 1958 s 44(2)]	25 years	4 years	Base
2	Incest [Crimes Act 1958 s 44(2)]	25 years	4 years	18 months
3	Incest [Crimes Act 1958 s 44(2)]	25 years	4 years	18 months
4	Incest [Crimes Act 1958 s 44(2)]	25 years	4 years	18 months
Total Effective Sentence:		8 years and 6 months
Non-Parole Period:		5 years and 6 months
Pre-Sentence Detention Declared		791 days
6AAA statement		10 years and 6 months with a non-parole period 7 years and 6 months
Other relevant orders: (1)   Sentenced as a serious sexual offender in respect of charges 3 and 4. (2)  Sentence to be served concurrently with the five days remaining on sentence in relation to another court matter.

Grounds of appeal

1. The Director relies on the following grounds of appeal:

Ground One — The individual sentences imposed on charges 1 to 4 are manifestly inadequate in all the circumstances; and

Ground Two — The orders for cumulation in respect of charges 2, 3 and 4 operating upon the inadequate base sentence resulted in a total effective sentence that is manifestly inadequate in all the circumstances.

Summary of the offending

1. The respondent, now aged 52, was the step-father of the complainant.  During the period of the offending, he was aged between 46 and 49, and, as we have said, the complainant was aged between 11 and 14.

1. The respondent and the complainant’s mother had been in a relationship for some 12 years.  They had four daughters together.  Before entering into that relationship, the complainant’s mother had three children, including the complainant herself.  The family moved around a great deal, living variously in Simpson, Stawell, Kerang, Camperdown, Scotts Creek, Maffra and Sale.

1. When the family lived in Simpson, the complainant and her sister shared a room.  When the complainant was 11 or 12 years old, she woke one night when she felt her blanket move.  The respondent pulled down her pants.  Despite her kicking him, and telling him to ‘fuck off’, he pulled down his boxer shorts and penetrated her vagina with his penis.  This caused the complainant pain and discomfort (charge 1 — incest)

1. In mid-March 2014, when the complainant was about 13 years old, the family stayed in a farmhouse in Riverslea, near Sale, for about one month.  During that time, she had her own bedroom.  On their first night in the farmhouse, the complainant was finding it difficult to sleep.  She heard footsteps and hid under her blankets.  The respondent came into her room.  He pulled down her pyjama shorts and pulled down his boxer shorts.  He held her arms, and penetrated her vagina with his penis (charge 2 — incest).

1. In about mid-April 2014, the family moved into emergency accommodation in Sale.  The complainant and her sister shared a room during this time.  About one week after the family moved into that accommodation, the respondent came into the complainant’s room during the night.  He removed the complainant’s blankets and her underwear.  He penetrated her vagina with his penis until he ejaculated (charge 3 —incest).

1. In April 2015, the family moved into a different house in Sale.  The complainant and her sister again shared a bedroom.  On 26 July 2015, at about 4:00 am, the respondent entered their bedroom.  He removed the complainant’s underwear, touched her on the thigh and felt her body.  He held her down and penetrated her vagina with his penis.  The complainant said, ‘no’.  This was interrupted when the a light came on in the toilet and the respondent desisted (charge 4 — incest).

1. The complainant’s mother woke at around 4:30 am.  She saw the respondent in her daughters’ bedroom, standing between the two single beds.  He told her that he was giving the complainant’s sister her Ventolin.  She noticed, however, that the Ventolin was still sitting on the computer desk.

1. The complainant stayed in bed until late that day.  Her mother took her aside, and asked her what had happened.  The complainant told her mother that the respondent had sexually abused her.  Her mother then contacted the local police.  

Arrest and record of interview

1. The respondent was arrested on 27 July 2015 and participated in a record of interview.  He told police that he had been in the complainant’s bedroom two days earlier, and that he had ‘pulled her knickers down’.  He said that he had ‘rubbed his doodle’ on her vagina.  The respondent said that he was not sure if his penis had penetrated the complainant's vagina.

1. The respondent denied all other offending against the complainant.  He provided a forensic sample.  DNA analysis of semen found on the complainant’s underwear made it clear that it was the respondent’s semen that was identified.  He was remanded in custody on the day of his arrest.

Post-offence conduct

1. Whilst on remand, the respondent put enormous pressure on the complainant’s mother, and the complainant herself, to have the charges against him dropped.

1. On 18 September 2015, during a phone call to the complainant’s mother, the respondent encouraged her to take steps to have the charges withdrawn.  In particular, he said:

You need to tell [the complainant] to go and fuckin’ take that off, see if I can come home … That what you’ve gotta do … That’s the only way it’s gunna stop.

The best thing to do, honey, if you can’t get her to go down, when it come up to go to court, fuck off somewhere and they’ll have to chuck it out … You know, if you don’t turn up at court, there’s no case … if you’re not there to make a case, it can’t go through so they’ve gotta chuck it out … when it all gets thrown out, everything stops, go back to normal.

1. On 10 October 2015, during a telephone call to the complainant’s mother, the respondent said:

You’ve got to convince her … to say she told a lie and I’ll be home …

You tell her if she don’t — tell her if she don’t tell ‘em — if she don’t tell ‘em that she’s lying you’re gunna fuckin’ punch her … I love you, baby. You’re the boss and fuckin’ you’re the mother. You tell her what to do.

1. The following are further extracts from telephone calls to the complainant’s mother throughout September 2015:

Only way back is if … if you drop them charges.

You gotta go down and drop the charges.

You tell the investigator and say she lied and — and you want the charges dropped … That’s what ya gotta do if ya want me home.

You tell her to go down and tell them that she — she lied … otherwise you won’t see me for fucking’ five or six years …

You’re my rock. I love you … try and get me home, hon, please. Tell [the complainant] to stop telling fuckin’ lies and go down there and tell them cunts down there at the police station.

… you better sort this out. I wanna come home because they’re very serious charges, hon …

Well, tell [the complainant] to go and pull the charges.

… on Monday there’s the other court date, you know … There’s a mention on Monday down at Sale courthouse for me … do somethin’ before then, otherwise you won’t see me for 6 months to 2 years. OK? … That’ll be when the next one come … And that’s the one you’ve gotta piss off and do the … no witnesses and there’s no case.

… tell your daughter to stop telling lies … You get her to go down there and pull them fuckin’ charges off, hon …

1. The following excerpts are from telephone conversations between the complainant’s mother and the respondent in October 2015: 

Respondent:

… What’s happening? Didn’t you get the charges dropped? … You go and see the Magistrates … you tell ‘em in there you want the charges dropped because it’s all fuckin’ made up and the Magistrate will throw ‘em out … if you want me home — go straightway.

Complainant’s Mother:

I want you home, man, and I can’t have that.

Respondent:

You can if you get your daughter to go down there and tell them that she lied … If she tells them that she lied they got no choice but to let me go home. They just chuck everything out and the orders and everything will go out the window … That would put me straight home with you, hon … and if you get [the complainant] to say ‘Listen I told lies about me dad,’ They will just chuck it out. They can’t make it — she can’t get into trouble or anything.

…

… all you’ve got to do is take the girl down and tell ‘em she told a fuckin’ lie … it’s a simple thing to do is get you daughter, take her down and tell ‘em she told lies and I’ll be home. It’s fuckin’ that simple. A simple fuckin’ thing … Get our daughter, go down, see your solicitor. You go and see your Magistrate and then the cunt will chuck it out.

1. While the respondent was on remand at Port Phillip Prison, he wrote a number of letters to the complainant’s mother.  In one letter, he addressed the complainant directly:

… Please … I love you Sweetie — don’t do this to your old father — I love all of you with my heart and soul — please let me come home … Just look at your poor Mother — she loves your dad — you can hear her crying a lot — have you got any compashion for your mum.  Your mum will do anything for her children especially you — so show mum you do love her and give her something she really want. And bub you know what that is — she wants her husband back and her little family back — don’t you think you owe it to her … I love you … my big girl … And please think of your old mother — she needs her husband …

1. In September 2015, the respondent arranged for someone to deliver an exercise book to the complainant’s mother, together with three letters.  That material included the following:

… if you get her by herself and say Bub please tell the truth about whats going on — with the charges you put on your dad … if you love your dad and Mum tell the truth so he can come home to his babies and wife …

Ya better hurry and get me home before its to late sweety — I really mean that

1. It also contained the following, addressed to the complainant’s mother:

I still want to marry you when I turn 50 if you would allow it, cause you are my soul mate. Tell [the complainant] she can stop lying …

Can you please talk to [the complainant] … Do you love me do you hurt for me, do you miss me do you feel toren inside like I am. If you love me like you say you do do something about it and stop these lies. Baby I miss my little family real hard. Don’t you think it’s not fair on you — cause you need me beside you all the time — I miss that hone …

I’m innocent and I know you know that. Well do something about it.

… get those charges dropped so that I can come home honey I need my family back. Tell [the complainant] to tell the truth — tell her don’t do this … do something for her own mother and father — Hone I really love you and my family.

Please Hone — for the sake of our love and children stop this. Only you can do this.

1. Further correspondence from Port Phillip Prison included:

Please be my wife and do the right thing baby.

Get me home your so vonurable around people — shut everyone out — otherwise they’re gonna hurt you and my baby’s please listen ...

Bub if you love your husband so much stand up for what is yours …

There’s nothing no-one can do if [the complainant] tells them she lied — you can’t get inot trouble

… do fucken something about it punch fuck out [the complaint] — you’ll get your answer one way or nother.  Some times you got to be cruel to be kind. Honey why hang onto me if you don’t want me home.

Get off your Arse and go do things for your Husband

1. Between October 2015 and January 2016, while the respondent was still on remand at Port Phillip Prison, he wrote a number of further letters to the complainant’s mother.  He attempted to blame the complainant for the offending, by suggesting that she was promiscuous:

Please, if ya want to make it through life with somebody else — you’d better look into [the complainant] a little more — because every man you get, she will fuck them…

You have no idea do ya … — she’ll fuck your boyfriend.

Hone the first time [the complainant] backed onto me — I couldn’t feel nothing — just the wet warmth and the bumping against my belly and hips … like my dick was like it was in a warm cup of water — I couldn’t fell anything else — no walls nothing — that’s how big her mick was.

Sentencing remarks

1. The sentencing judge set out in considerable detail the circumstances surrounding the commission of each of the offences.  She also recounted the various attempts made by the respondent to persuade both the complainant and her mother to have the charges against him withdrawn. 

1. Her Honour then summarised the drawn-out history of the matter.  She referred to the victim impact statements filed on behalf of the complainant and her mother.  She noted, as was hardly surprising, that the offending had ‘had a cataclysmic effect’ on the complainant, and her mother, as well as upon the respondent’s other daughters.[2]  It seems that there was an ongoing relationship between the respondent and the complainant’s mother.  The judge commented that she ‘could absolutely understand that this would undermine [the complainant’s] sense of trust in her mother’, and how it had led to the destruction of their relationship.[3] 

   [2]DPP v Shearer (a pseudonym) [2018] VCC 934 [22] (‘Reasons’).

   [3]Ibid [17].

1. The judge noted that the respondent was of Aboriginal descent, and the second eldest of 11 children.  His mother had only recently died.  There was no particular history of drug or alcohol abuse within his family.  However, he had been sexually abused by a cousin when aged seven. 

1. The respondent began abusing alcohol at about the age of 10.  By the age of 14, he was drinking four bottles of spirits a day.  That continued through to his mid-twenties.  He also smoked cannabis on a daily basis from about the age of 11.  That continued until he was arrested in 2015.  From the age of 19, he used amphetamines, and continued that use until 2002.  At one stage, he was spending about $250 a week on his drug habit. 

1. In more recent years, the respondent had graduated to regular methamphetamine use, which was costing him up to $1,000 per week. 

1. The respondent was educated up to year 11.  Thereafter, he had been employed sporadically doing farm and labouring work.  He had 14 children from three separate relationships.  When aged 22, he was struck to the head with an iron bar.  In his younger years, he had also been shot twice, though he had not suffered serious injury. 

1. Her Honour referred to the respondent’s lengthy criminal history which dated back to 1984.  From about 2003 to 2012, his offending ceased.  Most of his previous convictions were for assaults, dishonesty and firearms charges.  There was no history of sexual offending. 

1. However, the respondent had been convicted in 1992 of manslaughter.  He had been sentenced to eight years’ imprisonment with a non-parole period of four years.  It seems that whilst intoxicated, he had stabbed his then partner to death.  In 2003 and 2010 he returned to court for the contravention of domestic violence orders.

1. The judge referred to several neuro-psychological reports that were tendered.  They described the respondent as having an IQ which was between ‘borderline’ and ‘low-average’.[4]  Counsel on the plea submitted that the respondent’s moral culpability for these offences should be regarded as reduced because of his cognitive difficulties.  The judge had difficulty in accepting that submission.  She found that the cognitive dysfunction revealed by the reports was not sufficiently linked to the offending to warrant being treated as falling within Verdins principle one.[5]  She noted also the considerable acumen and planning used by the respondent in seeking to persuade the complainant and her mother to withdraw the allegations made against him.  In addition, her Honour rejected the submission, based on Verdins principle five,[6] that the respondent’s mental condition would mean that imprisonment would weigh more heavily upon him than upon someone not subject to the same cognitive difficulties. 

   [4]Ibid [29]

   [5]DPP v Verdins (2007) 16 VR 269 [23]–[26], [32] (reduced moral culpability).

   [6]Ibid [32] (burdensome nature of imprisonment).

1. The judge rejected a submission by counsel for the respondent that he had entered an early plea of guilty.  She found that he had not been cooperative with police, noting that he had sought at one stage to change his plea. 

1. The judge was prepared to treat the plea of guilty as having utilitarian value.  More importantly perhaps, she accepted that the plea had saved the complainant from the trauma of having to give evidence in court.  However, she found that any remorse on the respondent’s part was limited.  She based that finding largely upon his post-offence conduct, including what she described as the respondent’s ‘disgraceful behaviour’ in urging his wife to use force upon her daughter in order to dissuade her from continuing with the prosecution.[7] 

   [7]Reasons [35].

1. Her Honour dealt with the fact that the respondent had no criminal history of sexual offending, stating that this was of ‘far less importance’ in a case such as this.[8]  It was also to be balanced against the fact that the respondent had a history of serious offending against women. 

   [8]Ibid [38].

1. Finally, her Honour took into account the respondent’s history of depression, over many years, as well as his record of substance abuse.  She noted that this had resulted in self-harm. 

1. In arriving at the sentence that she did, the judge had regard to the principle of totality, including reference to the respondent’s having been sentenced to a term of nine months’ imprisonment in September 2017 for various offences of dishonesty.  She described the respondent’s prospects of rehabilitation as ‘guarded’, though she recognised that he had undertaken various rehabilitative programs in custody.[9]

   [9]Ibid [45].

Appellant’s submissions

1. It was submitted on behalf of the Director that the individual sentences imposed on each charge of incest were manifestly inadequate.  It was further submitted that the erroneously low individual sentences resulted in inadequate orders for cumulation, in turn leading to a total effective sentence which is also manifestly inadequate.

1. It was noted that the complainant was 11 or 12 at the time of charge 1, 13 at the time of charges 2 and 3, and 14 at the time of charge 4. 

1. It was submitted that this particular offending represented serious examples of the offence of incest.  It involved a breach of trust, and included a number of aggravating features.  The respondent had engaged in unprotected sex, and ejaculation, in relation to his 11 to 14 year old step-daughter.  That put her in danger of sexually transmitted disease, and also pregnancy.  There was a great disparity in age between them. 

1. It was further submitted that since Dalgliesh,[10] sentences for incest needed to be higher than they had previously been.  In support of this proposition, the Director referred to and relied upon a number of cases.  In particular, the Director cited DPP v Tewksbury,[11] where the respondent, who had pleaded guilty at an early stage to two charges of incest involving his 12 to 14 year old step-daughter, was resentenced on appeal to individual sentences of 5 years, and 5 years and 6 months’ imprisonment respectively, and a total effective sentence of 9 years and 7 months’ imprisonment.  That was for a total of eight offences which included child pornography and non-penetrative indecent act offences. The Director also referred to McCray v The Queen,[12] where a sentence of five years’ imprisonment for a ‘course of conduct’ incest charge involving the respondent’s 8 to 10 year old daughter, with a plea of guilty, was held to be within range.  In addition, the Director cited Carter v The Queen,[13] where the respondent had been convicted on two charges of incest involving his 11 to 12 year old de facto step-daughter, and individual sentences of six years’ imprisonment on each charge, and a total effective sentence of eight years’ imprisonment were held to be within range.  Finally, the Director referred to DPP v Walsh.[14]  There the sentence imposed on the respondent (who had assisted police by voluntarily disclosing much of his offending behaviour and pleaded guilty to four charges involving violence against his 11 to 13 year old step-daughter, including one representative charge of incest and two representative charges of indecent assault), was held to be manifestly inadequate.  The respondent was resentenced on appeal to 6 years’ imprisonment in respect of the single incest charge and a total effective sentence of 7 years and 4 months’ imprisonment.

   [10]DPP v Dalgliesh (a pseudonym) [2017] VSCA 360. There, the respondent was resentenced, on appeal, to 7 years and 6 months’ imprisonment in relation to the first charge of incest, in circumstances where the complainant had become pregnant to him. The original sentence of three years and six months in respect of that charge of incest was held to be manifestly inadequate. The second charge of incest, in respect of which a sentence of three years’ imprisonment was imposed, was not challenged by the Director and was therefore affirmed on appeal, though the Court noted that ‘the fact that the sentence … is affirmed does not mean that this Court regards that sentence as anywhere near appropriate’: [83].

   [11][2018] VSCA 38.

   [12][2017] VSCA 340.

   [13][2018] VSCA 88.

   [14][2018] VSCA 172.

1. It was also noted that the respondent’s actions had caused his step-daughter serious and ongoing damage. 

1. The respondent had a serious criminal history including multiple offences of assaulting women, and the manslaughter of his former partner.  None of the mitigating factors put forward on the plea were particularly significant. 

1. Finally it was submitted that the plea of guilty, while having some utilitarian value, was not any early plea, and was in no way indicative of remorse. 

Respondent’s submissions

1. It was submitted that an appeal against inadequacy, brought by the Director, required satisfaction of a stringent test, and would be difficult to make good. 

1. It was said that this was not a case where the judge had undervalued the gravity of the offending.  Indeed, her Honour made it clear that she regarded the respondent’s offending as a serious example of this type of crime.  She also recognised that there were a number of aggravating features, each of which she identified in terms.  She understood full well what had been said by both the High Court and the Court of Appeal regarding the need for increased sentences for this offence in the matter of Dalgliesh.[15] 

   [15]See DPP v Dalgliesh [2016] VSCA 148; DPP v Dalgliesh (2017) 349 ALR 37; DPP v Dalgliesh [2017] VSCA 360.

1. Counsel submitted that the sentence was lenient, without being manifestly inadequate. He pointed to the deprived upbringing and background of the respondent, in particular, and relied on Bugmy v The Queen[16] in that regard.

   [16](2013) 249 CLR 571.

1. It was submitted that none of the recent cases involving sentencing for incest, upon which the Director relied, provided any support for the proposition that the individual sentences imposed in this case, or the total effective sentence, were wholly outside the range.  In particular, it was said that Tewksbury involved the significant aggravating feature that the offending was video-recorded; McCray involved a course of conduct charge;  and in Carter the sentence was imposed after trial.  In addition, sentences of 6 years’ imprisonment in Phillips v The Queen[17] and Thrussell v The Queen[18] were imposed after trials, and in Thrussell there was added accompanying violence.

   [17][2018] VSCA 114.

   [18][2017] VSCA 386.

Analysis

1. In our opinion, each of the individual sentences imposed in this case were manifestly inadequate.  The individual sentences imposed in this case seem to us to fail to have proper regard to what was said by both the High Court, and by this Court, with regard to sentencing for the offence of incest. 

1. Not only were the offences themselves egregious examples of this appalling crime, exhibiting all of the features that make it a serious offence.  The respondent’s criminal record regarding violence against women was negative, including as we have said, a prior conviction for manslaughter.  To make matters even worse, his attempts at dissuading his wife and step-daughter from pursuing the charges brought against him can only be deprecated in the strongest possible terms.

1. We do not consider that the mitigating features of the case, including the respondent’s deprived background, suffice to justify the sentences imposed.  While account must obviously be taken of those matters, this was very serious offending.

1. The appellant’s first ground of appeal is made out.  The sentences imposed below will be set aside.  We will impose a sentence of six years’ imprisonment on each of the offences.

1. As to the second ground of appeal, we accept that the orders for cumulation operate on an inadequate base sentence and result in a total effective sentence which is also inadequate. Otherwise, given that ground 1 has been upheld, it is unnecessary to consider this ground further.  It is necessary for us to consider the issue of cumulation on the re-sentence.

1. Charge 1 was the first offence, perpetrated on an 11 or 12 year old step-daughter, who resisted both verbally (‘Fuck off’) and physically (kicking).  The six year sentence on that charge will be the base sentence.

1. The offending behaviour in relation to charge 2 was similar and close in time to charge 1. The sentence for this offence is to be served concurrently, unless otherwise directed: s 16(1) of the Sentencing Act 1991.  This was separate offending of a serious kind and some cumulation is required.  We will order cumulation of 1 year.

1. On charges 3 and 4 the respondent is to be re-sentenced as a serious offender and, as such, the sentences are to be served cumulatively, unless otherwise directed: ss 6E and 16(1A) of the Sentencing Act. The principles of totality continue to apply, but must be modified so as to give proper effect to those legislative provisions.[19]  The offences are part of a related series of similar offences.  In order to give effect to totality, and mindful of the operation of the relevant provisions, we will order cumulation of 1 year and 9 months on each of these offences.

   [19]R H McL v The Queen (2000) 203 CLR 452, 477 [76]

Conclusion

1. We will allow the Director’s appeal and set aside the sentences imposed below.  In lieu thereof we sentence the respondent as follows:

Charges	Offence	Maximum	Sentence	Cumulation
1	Incest [Crimes Act 1958 s 44(2)]	25 years	6 years	Base
2	Incest [Crimes Act 1958 s 44(2)]	25 years	6 years	12 months
3	Incest [Crimes Act 1958 s 44(2)]	25 years	6 years	21 months
4	Incest [Crimes Act 1958 s 44(2)]	25 years	6 years	21 months
Total Effective Sentence:		10 years and 6 months
Non-Parole Period:		7 years and 6 months
Section 6AAA statement		12 years and 6 months with a non-parole period of 9 years and 6 months
Other relevant orders: (1)  Sentenced as a serious sexual offender in respect of charges 3 and 4. (2) Respondent to be entered on the Sex Offenders Register for life.

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