DPP v Spottiswood
[2021] VSCA 146
•2 June 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0197
| DIRECTOR OF PUBLIC PROSECUTIONS | Appellant |
| v | |
| ARAN SPOTTISWOOD | Respondent |
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| JUDGES: | PRIEST, BEACH and T FORREST JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 25 May 2021 |
| DATE OF JUDGMENT: | 2 June 2021 |
| MEDIUM NEUTRAL CITATION | [2021] VSCA 146 |
| JUDGMENT APPEALED FROM: | [2020] VCC 1328 (Judge Gaynor) |
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CRIMINAL LAW – DPP Appeal – Sentence – Sexual penetration of a child under 16 –Involving a child in production of child abuse material – Possession of child abuse material – Sexual assault of a child under 16 – Manifest inadequacy – Respondent sentenced as serious sexual offender – Standard sentencing regime – Non-parole period of less than 60 per cent of head sentence imposed where standard sentences applied – High moral culpability – Risk of reoffending moderate to high – ‘Some positive prospects of rehabilitation’ despite ‘slow-moving and reluctant response to offence-specific treatment’ – Specific deterrence and protection of the community loomed large in sentencing exercise where respondent failed to demonstrate insight into offending behaviour – Stringent test of manifest inadequacy not satisfied – Lenient sentence not wholly outside range of sentencing options reasonably available – Dinsdale v The Queen (2000) 202 CLR 321, Karazisis v The Queen (2010) 31 VR 634 applied; Crimes Act 1958 ss 49B(1), 49D(1), 51B(1), 51G(1); Sentencing Act 1991 ss 5B(4), 6F, 11A(4) – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr B Kissane QC, with Ms J Wang | Ms A Hogan, Solicitor for Public Prosecutions |
| For the Respondent | Mr D A Dann QC, with Mr T Schocker | Stary Norton Halphen |
PRIEST JA
BEACH JA
T FORREST JA:
On 19 November 2019 the respondent, Aran Spottiswood, pleaded guilty in the County Court to one charge of involving a child in the production of child abuse material (charge 2 — rolled-up charge), three charges of sexual penetration of a child under 16 (charges 1, 3 and 4), one charge of sexual assault of a child under the age of 16 (charge 5), and one charge of possessing child abuse material (charge 6).
On 25 August 2020 the respondent was sentenced as follows:
Charge No
Offence
Maximum Penalty
Sentence
Cumulation
1
Sexual penetration of a child under 16 years (Crimes Act 1958 s 49B(1), as amended by the Crimes Amendment (Sexual Offences) Act 2016)
15 years’ imprisonment
18 months’ imprisonment
6 months
2
Involving a child in the production of child abuse material (Crimes Act 1958 s 51B(1), as amended by the Crimes Amendment (Sexual Offences) Act 2016)
10 years’ imprisonment
18 months’ imprisonment
6 months
3
Sexual penetration of a child under 16 years (Crimes Act 1958 s 49B(1), as amended by the Crimes Amendment (Sexual Offences) Act 2016)
15 years’ imprisonment
12 months’ imprisonment
3 months
4
Sexual penetration of a child under 16 years (Crimes Act 1958 s 49B(1), as amended by the Crimes Amendment (Sexual Offences) Act 2016)
15 years’ imprisonment
2 years’ imprisonment
Base
5
Sexual assault of a child under 16 years (Crimes Act 1958 s 49D(1), as amended by the Crimes Amendment (Sexual Offences) Act 2016)
10 years’ imprisonment
9 months’ imprisonment
3 months
6
Possession of child abuse material (Crimes Act 1958 s 51G(1), as amended by the Crimes Amendment (Sexual Offences) Act 2016)
10 years’ imprisonment
15 months’ imprisonment
6 months
Total effective sentence:
4 years’ imprisonment
Non-parole period:
2 years
Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991:
2 days
Section 6AAA Statement:
6 years with a non-parole period of 4 years
Other relevant orders:
On charges 3, 4, 5 and 6 – Sentenced as a serious sexual offender pursuant to s 6F of the Sentencing Act 1991
Reporting obligations pursuant to the Sex Offenders Register Act 2004 for Life
On charges 1, 2, 3, 4 and 6 – Forfeiture Order
The Director of Public Prosecutions now appeals against the sentence on the sole ground that the ‘individual sentences on each of Charges 1–6, the orders for cumulation, and the non-parole period and the total effective sentence imposed are each manifestly inadequate’.
Summary of offending
An undisputed summary[1] of the respondent’s offending was provided in the Amended Summary of Prosecution Opening (Exhibit 1 on the plea). The conduct subject of the charges took place over a roughly two-week period.
[1]The respondent’s counsel at first disputed the means by which the respondent initially had contact with the complainant. After discussion, the respondent accepted the prosecution summary on this issue.
The respondent, who was 25 years old at the time of the offending, met the complainant, Caitlin Thompson,[2] who was 14 years old, through a mobile phone application, MyLOL, which is a dating application used by teenagers. The complainant’s MyLOL profile showed that she was 14 years of age. Her MyLOL profile also contained her Snapchat username. The respondent added her on Snapchat and they began communicating.
[2]A pseudonym.
When the complainant asked the respondent how old he was he told her that he was 24, at which point the she told him that she was 14 and was ‘not interested’. Some weeks later, the respondent again messaged the complainant through Snapchat, telling her this time that he was 19 years old. The respondent and the complainant recommenced communicating via Snapchat, the complainant again stating that she was 14 years old, and the respondent falsely stating that he was 19. After a few days of further communications, the conversation became sexual and the two decided to meet.
Charge 1 — 14 March offending
On Thursday 14 March 2019, at 12:26 am, the respondent picked the complainant up in his car from a residential street corner near her home. The respondent drove her to Jack Roper Reserve in Broadmeadows. Finding the entry gates closed, however, he identified another nearby location on Google Maps, Seabrook Reserve, and drove there.
When they arrived, the respondent parked the car and moved the front car seats forward. The respondent and the complainant then moved to the backseat of the car and began talking and kissing. The respondent then removed both of their clothing and penetrated the complainant’s vagina with his penis (charge 1 — sexual penetration of a child under 16). After about 20 minutes the sexual encounter was disturbed by another, unknown car. The respondent and the complainant then got dressed and spoke for a short time, before the respondent drove the complainant home.
Charges 2, 3 and 4 — rolled-up charge and 20 March offending
The respondent and the complainant continued to communicate daily via Snapchat and, a few days after the 14 March offending, Mr Spottiswood asked her to send him naked photographs of herself, which she did, sending him four to five photographs (charge 2 — involving a child in the production of child abuse material — rolled-up charge).
The respondent and the complainant met again on Wednesday 20 March 2019 at approximately 12:30 am. Mr Spottiswood again picked her up in his car, from the same street corner as previously, and drove her to Anderson Reserve in Glenroy. As there were too many cars at that location, the respondent then drove to Seabrook Reserve, where he parked his car and moved the seats forward, as he had done on the first occasion. The respondent and the complainant again moved to the backseat of the car, where the respondent began kissing her and removing their clothes. He then penetrated her vagina with his fingers (charge 3 — sexual penetration of a child under 16), and then with his penis (charge 4 — sexual penetration of a child under 16).
The respondent filmed these activities using a GoPro video camera. The resulting video was date-stamped 20 March 2019. In the video, the complainant’s face was covered with her hair and black clothing (charge 2 — involving a child in the production of child abuse material — rolled-up charge).
Charge 5 — 27 March offending
The respondent and the complainant continued to communicate via Snapchat after the 20 March offending, and on Tuesday 26 March 2019 arranged to meet later that evening. They met for a third time on Wednesday 27 March 2019 at approximately 12:06 am. Again, the respondent picked the complainant up in his car from the same street corner as the two previous occasions and again drove her to Anderson Reserve. Again finding there were too many cars at that location, the respondent continued driving, and eventually parked his car at a gravel car park near Sewell Reserve in Glenroy.
Again, the respondent moved the car seats forward, and again he and the complainant moved to the backseat and began kissing. The respondent touched the complainant’s breasts over and under her clothing, removed her top and pulled her pants to halfway down her thighs (charge 5 — sexual assault of a child under 16).
At approximately 12:30 am, two police officers on supervision duties, Sergeant Jon Miller and Constable Cameron Ashworth, observed the respondent’s car parked at Sewell Reserve, and turned their marked police vehicle into the carpark in order to inspect it. When the respondent observed the police car, he instructed the complainant to tell the police that they did not know each other and had met at a service station.
Sergeant Miller observed that the front seats of the respondent’s car were inclined forward and that there were two occupants in the backseat of the car. Both police officers observed the respondent and the complainant to be in different states of undress.
The respondent exited the car and identified himself to Sergeant Miller by producing his driver’s licence. Sergeant Miller then approached the complainant, seated in the backseat of the respondent’s car, and asked her how old she was. The complainant said that she was 14 years old.
The respondent was then arrested and conveyed to Fawkner Police Station, where he later provided a no comment interview to police. The complainant was also conveyed to Fawkner Police Station, and there participated in a VARE.
Charge 6 — child abuse material
A search of the respondent’s car conducted at Sewell Reserve by Sergeant Miller and Constable Ashworth produced, amongst other things, an iPhone 7, a GoPro video camera, and a black computer bag containing a Dell laptop, a Canon camera, an external hard drive, an SD memory card and various USBs (the ‘computer exhibits’).
Police found footage on the GoPro depicting the respondent and a female resembling the complainant engaged in sexual activity in a car on 20 March 2019. In a subsequent VARE on 11 April 2019, the complainant described the circumstances of the 20 March offending.
Analysis by police of the computer exhibits, the iPhone 7 and the GoPro produced child abuse material (charge 6 — possession of child abuse material), including:
·On the Dell laptop’s internal hard drive: 1,833 child abuse images and 122 child abuse videos, including images and videos of children under 10, both posing in lingerie and naked, as well as of sexual penetration of children aged between four and 16 by adults.
·On the iPhone 7: 45 child abuse images and one child abuse video, including naked photographs of the complainant. The images located on the phone were primarily of the complainant; these appeared to have been saved or possibly edited to create duplicate images of the original photographs. Also included were images of an older male penetrating a female child aged approximately 12; these images were also found on the Dell laptop.
·On the GoPro: eight child abuse videos and one child abuse image, all depicting the respondent penetrating the complainant’s vagina both digitally and with his penis.
The judge’s sentence
We shall provide a detailed summary of her Honour’s comprehensive reasons for sentence. This includes reference to the submissions made by both parties on the plea.
Personal circumstances
In her reasons for sentence, the judge gave an account of the respondent’s personal circumstances, which had been addressed during the plea hearing:
You are now 27 years old and have no prior convictions … Your father is a retired solicitor and your mother a retired research scientist. You have an older sister who is a lawyer working in London and your brother is an IT consultant …
You have always lived at home with your parents. You described to psychologist Patrick Newton and Professor Michael Daffern a conventional, comfortable and well supported upbringing involving no ill treatment.[3]
[3]DPP v Howell (a pseudonym) [2020] VCC 1328, [16]–[17] (Judge Gaynor) (‘Reasons’).
Her Honour noted the respondent’s background of educational achievement and stable employment, and the impact of his offending on this:
You were educated privately, completed Year 12 and then a Commerce Degree at Monash University which you completed in 2011.
You then worked for two major accountancy firms over about three years, then for a business until your arrest in 2019. Along the way you obtained your chartered accountancy [qualification]. After your release on bail, you worked as a senior financial consultant for a clothing retailing business. At school and university you participated in sports and musical activities and[,] at university, developed part time work as a DJ which continued until your arrest working at functions up to four nights a week. That business ended when you were bailed, a condition being that you not use social media, making it impossible for you to continue that enterprise.[4]
[4]Ibid.
The judge also noted the respondent’s ‘more than usual participation … in community service’ going back some years, including university societies and committees, assisting his former secondary school’s band, and involvement in charities such as a local community store, the Red Shield Appeal, the Relay for Life and Freezone, a series of events run by Bayside City Council to raise money for the disadvantaged.[5]
[5]Ibid [18].
It was noted that, other than his offending behaviour, the respondent had an unremarkable social and sexual history, involving ‘several long term age appropriate relationships’ including, at the time of sentencing, with a 22-year-old woman, who had recently returned to her native London. In ‘about the year leading up to this offending, when [he was] single’, the respondent had also described engaging in ‘a series of one night stands’. The respondent drank little alcohol and had never used illicit drugs.[6]
[6]Ibid [19].
Victim impact
The judge took into account two victim impact statements, given by Caitlin Thompson and her parents respectively. Caitlin described her ‘trust issues with people’ and feelings of shame and guilt since the offending. She described being ‘haunted … everyday’ by ‘the images of this crime’, had had to attend counselling and had self-harmed on many occasions.[7]
[7]Ibid [13]–[14].
Her parents described their distress, anger and ongoing pain and grief at the offending. The judge noted they remained ‘terrified that [the respondent had] seen their house and afraid that [he] would come and hurt them’, though accepted that this was ‘entirely unlikely’. The offending had had an adverse impact on the family life, her parents becoming overprotective to the point that their ‘relationship with the child [had] become strained’. The complainant’s parents felt that ‘[t]his over protectiveness is preventing our daughter from developing an age appropriate level of separation’.[8]
[8]Ibid [15].
Objective seriousness
The judge took into account the prosecutor’s submissions on the plea in relation to the objective seriousness of the offending, including ‘the eleven year age gap between [the respondent] and the complainant, [and] her vulnerability’ and her description of the respondent’s actions as ‘predatory and persistent’.[9]
[9]Ibid [38].
Risk of reoffending and prospects for rehabilitation — psychological reports
The judge drew on a series of psychological reports, prepared by several psychologists over some months and presented over several plea hearings. These reported a vacillating attitude on the respondent’s part towards his understanding of and insight into his own offending, despite his plea of guilty.
Psychologist Patrick Newton’s report dated 7 November 2019,[10] prepared following 12 sessions with psychologist Geoffrey Burrows and two sessions with Mr Newton, reported that the respondent denied any ‘deliberate involvement in [the] offending’, maintaining that the complainant had approached him claiming to be 17 and that he had inadvertently downloaded the child abuse material subject of charge 6 in the course of downloading mainstream pornography. This persistent denial made it ‘impossible to discuss the psychological, interpersonal and emotional factors contributing to [the respondent’s] offending’. Mr Newton assessed the respondent’s risk of reoffending as falling in the ‘moderate-high risk category’, which the judge noted was ‘an elevated risk significantly higher than that of a typical sexual offender undergoing sentence’.[11]
[10]Exhibit B at the plea hearing of 22 April 2020.
[11]Reasons [21].
In a report dated 26 March 2020, psychologist Peter Hanley wrote that the respondent continued to ‘emphasise his passivity [in his own offending conduct] and [did] not reflect a thorough awareness of the inherently exploitative and manipulative nature of his offending behaviour’. The respondent maintained that he had downloaded the child abuse material inadvertently. While there had been progress in that the respondent accepted his responsibility for the production of child abuse material involving the victim, he claimed that he believed the complainant was ‘interested in activities such as blindfolding and video recording of sex’. While ‘Mr Spottiswood’s overt defensiveness appear[ed] to have subsided, there remain[ed] a discrepancy between the way Mr Spottiswood view[ed] himself and his offending, and the way his offending is depicted in the Prosecution Opening’.
In a second report dated 28 March 2020 Mr Newton wrote that the respondent had demonstrated some insight into his offending and his own culpability. The respondent conceded that he had engaged in sex with the complainant knowing she was underage (though claimed only to have known this for sure on the second occasion), and also acknowledged actively engaging with the child abuse material and that he experienced sexual arousal in response to it. The respondent demonstrated a ‘better understanding of the damage done to children used in such material’.[12] Mr Newton wrote that ‘[t]his time [the respondent is] able to acknowledge [his] offending more openly and also to demonstrate some insights into [his] effects on the victim’. Though his assessment of the respondent’s risk of reoffending remained in the ‘moderate-high’ category, Mr Newton saw a ‘clear capacity to engage in and benefit from sex offence specific treatment’.[13]
[12]Ibid [25].
[13]Ibid.
A pre-sentence report by Professor Michael Daffern, consultant psychologist at Forensicare and professor in clinical forensic psychology, dated 23 July 2020, was prepared at the Court’s instigation and presented at a subsequent plea hearing. This report indicated some ‘reversion’ on the part of the respondent in relation to some of his previous denials of an active role in his own offending, including resuming the claim that he had only inadvertently downloaded the child abuse material. He also now denied contacting the complainant using his MyLOL account, claiming it had been dormant since he was in Year 8 and that it was the complainant who had contacted him through Snapchat. He claimed that the blindfolding and filming their sexual activity had been the victim’s idea. Professor Daffern reported that gaining an understanding of why the respondent had engaged in his offending behaviours was ‘made difficult by his unwillingness to acknowledge his deviant sexual interests’.
While none of the psychological reports diagnosed any intellectual impairment, cognitive dysfunction or any form of thought disorder or psychosis, there was agreement as to the ‘strong likelihood of deviant cognition and [sexual] arousal’ which would benefit from sex offender-specific treatment.[14] The judge accepted and factored into her sentence that she could not be satisfied beyond reasonable doubt on the material that the respondent was a paedophile. However, the psychological material did go to her Honour’s assessment of the risk of recidivism and prospects for rehabilitation:
While the material cannot satisfy me to the requisite standard that you are a paedophile [indicating a higher risk of recidivism], I am satisfied that your offending does reveal a deviant pattern of sexual arousal in you, or features of it, on which you were prepared to act and to do so more than once. I do regard your offending as involving predatory and manipulative behaviour and also showing some persistence. You have undertaken much rehabilitative treatment, but in my view you have a long way to go.[15]
[14]Ibid [29].
[15]Ibid [40].
The judge noted that the respondent’s ‘well documented eventual response to offence specific therapy was slow moving and reluctant’, and this was weighed against his ‘strong social reports’ and her acceptance that he was ‘amenable to treatment’ in assessing the respondent’s risk of reoffending as ‘moderate to high’.[16]
[16]Ibid [42].
Her Honour perceived ‘some positive prospects of rehabilitation, but they [were] reliant on [the respondent] fully understanding and accepting the seriousness of [his] offending’.[17] The respondent’s amenability to treatment was regarded as ‘critically important’ to any eventual rehabilitation.[18]
[17]Ibid.
[18]Ibid.
Moral culpability
The judge regarded the respondent’s moral culpability as ‘high’.[19] She noted that the respondent:
[19]Ibid [41].
·seemed to have ‘no concern for subjecting a 14 year old child to the degrading experience of being blindfolded and filmed during sexual activity’;
·had changed his account of his offending: ‘You have come up with several versions for your possession of a large amount of child abuse material’;
·possessed a ‘large amount’ of child abuse material, which contained some images of ‘high end seriousness’ and which he had ‘deliberately sourced and downloaded’;
·had been deliberate in his offending, both in regard to the sexual penetration and sexual assault charges, and the child abuse material charges, having ‘deliberately set out to gratify [his] sexual desires involving underage victims by seeking out and engaging in sexual intercourse with a 14 year old and by sourcing and downloading child abuse material’;[20]
·had been persistent in his offending, having ‘continued to seek sexual intercourse with the complainant’; and
·had aggravated his serious offending by filming it.[21]
[20]Ibid.
[21]Ibid.
General and specific deterrence; protection of the community
The judge stated that general and specific deterrence and protection of the community loomed large in the sentencing exercise.[22] She reiterated that the weight given to these factors was not based on a finding that the respondent was a paedophile, however, the judge deemed that the fact that he remained ‘dangerously un-insightful about [his] own latent devious tendencies’ and the ‘vulnerability of child victims and the terrible long lasting, often irreversible damage sexual offending can have upon them’ added weight to those considerations.[23]
[22]Ibid [43].
[23]Ibid.
As the respondent was to be sentenced as a serious sexual offender in relation to some of the charges, the judge noted that she was required to regard protection of the community as the principal consideration in determining the length of the sentence imposed. As this consideration involved an assessment of the risk of reoffending, remorse, demonstration of insight and prospects of rehabilitation assumed particular importance in the sentencing exercise.[24]
[24]Ibid [29].
Factors put in mitigation
The judge took into account various mitigating factors submitted by the respondent’s counsel on the plea, including:
·The respondent’s early plea of guilty, which was submitted to be of ‘considerable’ utilitarian benefit.[25]
[25]Ibid [30].
·The respondent had shown qualified ‘remorse’ — whilst ‘not straightforward’ the respondent had eventually ‘accepted responsibility for [his] offending and the impact on the victim’.[26]
[26]Ibid [31].
·The respondent had no prior convictions.[27]
[27]Ibid.
·The respondent had made ‘exceptional contributions to the community’, which, it was submitted, were unusual for a person of the respondent’s age.[28]
·In December 2019 the respondent had given prosecution evidence in relation to a rape, of which the accused was ultimately convicted and gaoled, meaning that the respondent may experience extra difficulty in custody.[29]
·As a result of his conviction, the respondent would not be able to continue in his chosen profession. This amounted to extra-curial punishment, and the respondent’s young age was taken into account on this point.[30]
·The respondent had complied with stringent bail conditions over a long period of time.[31] Her Honour, however, gave ‘less than the normal effect than it [generally] would have’ to the factor of delay overall, given that the delay in the matter was largely due to the respondent’s own attitude to his ongoing psychological treatment, which was protracted because of his clear difficulty in accepting responsibility for his offending.[32]
·The more onerous conditions in custody due to COVID-19-related restrictions, including the cessation of personal visits and education and recreation programs and activities, which the judge accepted were particularly important for young offenders.[33]
·The fact that the respondent was more likely to be a vulnerable prisoner.[34]
·The respondent’s efforts to rehabilitate himself in the period between his arrest and his sentencing.[35]
·What were submitted to be the respondent’s ‘strong prospects of rehabilitation given [his] intelligence, employability, strong family support, friendships and general background’.[36] As noted previously, the judge’s assessment of these prospects were rather more guarded, seeing ‘some positive prospects’ in this regard.[37]
·The certainty that ‘gaol [would] have a strong salutary effect upon [the respondent]’.[38]
[28]Ibid.
[29]Ibid.
[30]Ibid [32].
[31]Ibid.
[32]Ibid.
[33]Ibid [33].
[34]Ibid.
[35]Ibid.
[36]Ibid.
[37]See above [36].
[38]Reasons [33].
Sentencing legislation
The judge took into account the standard sentences applicable to the charges of sexual penetration of a child under 16 (six years) and to the charge of sexual assault of a child under 16 (four years). She noted that these standard sentences were but one of the factors to be taken into account and did not ‘interfere with the exercise of instinctive synthesis generally underlying sentencing’.[39] In fixing a non-parole period of two years, the judge noted that the standard sentencing regime called for a minimum term of not less than 60 per cent of the head sentence, however, she viewed a shorter minimum term, and thus a potentially longer period of parole, as being in the interests of justice in the respondent’s case.[40]
[39]Ibid [44].
[40]Ibid [47].
Her Honour also noted in her sentence that the respondent stood to be sentenced as a serious sexual offender due to his convictions of the sexual offence charges.[41] She also noted that these convictions required him to be placed on the Sex Offenders Register for life.[42]
This appeal
[41]Pursuant to the Sentencing Act 1991 s 6B(2) (‘Sentencing Act’).
[42]Reasons [13]. Pursuant to the Sex Offenders Registration Act 2004 s 34(1)(c)(iii).
Appellant’s submissions
As we have mentioned, there is a single ground of appeal, which contended that
[t]he individual sentences on each of charges 1–6, the orders for cumulation, and the non-parole period and total effective sentence imposed are each manifestly inadequate.
The appellant contended that the objective gravity of the sexual penetration charges (charges 1, 3 and 4), the sexual assault of a child charge (charge 5) and the production of child abuse material charge (charge 2) was, in each case, high. The respondent engaged in an intentional, purposeful and predatory exercise over a period of time. The appellant also contended that the moral culpability for these charges was similarly high. The respondent was older than the complainant, engaged in the adult world with tertiary qualifications, and without any mental condition or cognitive impairment sometimes seen in this type of offending with children. Insofar as the possession of child abuse material was concerned, it was submitted that this also was a serious example of the offence, particularly the possession of images of penetrative sex involving young children.
The appellant emphasised the impact of the offending upon the complainant, her development of a lack of trust, her feelings of weakness and vulnerability and her perception of men. The complainant’s parents have become isolated and overprotective.
The appellant contended that the sentence imposed failed to give sufficient weight to the sentencing considerations of protection of the community, general and specific deterrence, just punishment and denunciation. The appellant referred to the respondent’s inconsistent and self-serving accounts to psychologists and submitted that they did little towards providing any explanation for the offending and that the ‘gap’ identified by the judge had not been bridged with this evidence.
It was contended that the judge failed to have sufficient regard to the maximum penalties applicable to any of the offences, and there was some internal inconsistency in the sentences imposed. This was asserted in the appellant’s written case, but not pressed in oral argument. Further, it was submitted by the appellant that the judge failed to pay sufficient regard to the standard sentences for charges 1, 3 and 4 (sexual penetration of a child under 16 — six years’ imprisonment) and charge 5 (sexual assault of a child under 16 — four years’ imprisonment).
It was submitted by the appellant that the judge also failed to explain why her sentence fell ‘so far below the standard sentence’, and also failed to state proper reasons for fixing a non-parole period of less than 60 per cent of the total effective sentence pursuant to s 5B(4) of the Sentencing Act.
It was further submitted that ‘the circumstances of this matter’ called for a higher term of imprisonment notwithstanding the matters put in mitigation.
Respondent’s submissions
The respondent took the Court to the principles that deal with a ground of manifest inadequacy and the stringent test involved in establishing such a ground.[43] He then took the Court through the judge’s reasons for sentence, which we have set out at [21]–[42] of these reasons.
[43]Citing DPP v Zhuang (2015) 250 A Crim R 282, 295–8 [39]–[47]; DPP v Walls [2014] VSCA 323, [20]; DPP v Karazisis (2010) 31 VR 634, [127]–[128] (‘Karazisis’); DPP v White [2020] VSCA 37, [67]–[73].
The respondent set out a number of mitigating factors that the judge was entitled to, and did, take into account when imposing sentence, including:
·The respondent pleaded guilty at the first available opportunity. There was a considerable utilitarian benefit attached to this plea. It also evidenced remorse, although it was conceded that this was a vexed issue.
·The respondent had no prior convictions.
·He had made significant contributions to the community.
·The respondent, in addition to being a sex offender, had given evidence for the prosecution in a jury trial held in the County Court. These matters were said to place him at an increased physical risk whilst imprisoned.
·His career as a Chartered Accountant is over.
·He had been subject to very stringent bail conditions involving a curfew and prohibition from using the internet over a period of 17 months. This impacted his successful side business.
·He had engaged with psychologists regularly while on bail.
·He had sound prospects for rehabilitation.
·Totality needed to be considered, as did the need to avoid double punishment.
·Section 11A(4) of the Sentencing Act provides a wide discretion to depart from the requirement that the minimum term of imprisonment be at least 60 per cent of the head sentence.
These matters were said to operate powerfully to mitigate the individual sentences, cumulation, the total effective sentence and the minimum term, such that the appellant had failed to establish that the overall sentence or any component of it was manifestly inadequate.
Analysis
In Dinsdale v The Queen,[44] Gleeson CJ and Hayne J observed:
Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than non-custodial) or because the sentence imposed is manifestly too long or too short. But to identify the type of error amounts to no more than a statement of the conclusion that has been reached. It is not a statement of reasons for arriving at the conclusion.[45]
[44](2000) 202 CLR 321.
[45]Ibid 325–6 [6].
After anxious consideration, and not without some hesitation, we have concluded that the appellant has failed to establish the ground of manifest inadequacy. This Court has often observed that grounds of manifest inadequacy (and manifest excess) are difficult to establish. In Karazisis, this Court said:
In Victoria, the contention that a sentence was manifestly inadequate is invariably expressed as a submission that the sentence was outside the range reasonably open to the sentencing judge in the circumstances.[46] As with the ground of manifest excess, the ground of manifest inadequacy is a stringent one, difficult to make good. Error of this kind will not be established unless the appellate court is persuaded that the sentence was ‘wholly outside the range of sentencing options available’ to the sentencing judge.[47] Put another way, it must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he/she did if proper weight had been given to all the relevant circumstances of the offending and of the offender.[48]
The court will be astute to enforce the stringency of this test. As the High Court has emphasised:
The discretion which the law commits to sentencing judges us of vital importance in the administration of our system of criminal justice.[49]
[46]R v MacNeil-Brown (2008) 20 VR 677, 680.
[47]R v Boaza [1999] VSCA 126, [42] (Winneke P).
[48]Karazisis (2010) 31 VR 634, 662–3 [127]–[128] (Ashley, Redlich and Weinberg JJA) (citations in original).
[49]Lowndes v The Queen (1999) 195 CLR 665, 672 (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ).
We have borne these remarks steadily in mind when considering the contentions advanced on this appeal. There is no real argument that this was reprehensible conduct committed by a young man who, up to that point, had led a comfortable, trouble-free and privileged life. His conduct was predatory. He sought out a young teenage girl and, upon rejection, waited for a time and modified his approach by lying about his age. Having established contact, the conversation turned to matters sexual, and within a few days he met the complainant in the early hours of the morning near the home of her unsuspecting parents. He drove to a secluded location and had sex with this child, 11 years his junior. A few days later he repeated these activities, this time blindfolding the complainant and filming the sexual acts. And a few days later still, whilst the respondent was in the process of further sexual activity, police intervened. They investigated him and discovered that he was also a collector of child pornography. The respondent has disrupted the complainant’s childhood and has also disrupted her family. Sensibly, on the plea, the respondent’s counsel conceded that a term of imprisonment was the only sentencing option available to the judge.
The judge’s reasons were careful and conscientious. Over the course of three hearings, she endeavoured to understand what lay at the heart of the respondent’s conduct. These endeavours were frustrated by the respondent’s evasive and self-serving responses to his psychologists and the Forensicare psychologist.[50] Notwithstanding this, it cannot be gainsaid that imprisonment will weigh heavily on him. He is still a young man, who will likely spend his time in prison in COVID-restricted protective custody. His career is in ruins before it started. His plea of guilty weighed in his favour, as did the fact that he spent 17 months under curfew.
[50]Reasons [42].
Had we been sentencing this young man at first instance we might not have imposed a sentence as lenient as that imposed by the judge. But that is not to the point. This Court’s intervention could only be justified if the sentence imposed was wholly outside the range of those open in the sound exercise of discretion. Synthesising all relevant considerations, we have concluded that it was reasonably open to the judge to impose the sentence that she did. The Court must remain astute to the stringency of the test of manifest inadequacy, given that it is vitally important that sentencing judges retain the discretion which the law commits to them. We are not persuaded that the sentence under challenge reflects that the sentencing judge failed to give proper weight to all relevant sentencing considerations. It follows that we must dismiss the appeal.
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