DPP v Walsh (a pseudonym)

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0212

DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
v
MAX WALSH (A PSEUDONYM)[1]	Respondent

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

---

JUDGES:	MAXWELL P, McLEISH and ASHLEY JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	30 April 2018
DATE OF JUDGMENT:	17 July 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 172
JUDGMENT APPEALED FROM:	[2017] VCC 1281 (Judge Parrish)

---

CRIMINAL LAW – Appeal – Sentence – Crown appeal – Incest, indecent assault (2) – Representative charges – Sentenced to 4y for incest, 1y for each indecent assault – Total effective sentence 5y, with non-parole period 2y 10m – Whether manifestly inadequate – Victim aged 11–13, offender 35–37 – Breach of trust and abdication of parental responsibility – Offender voluntarily disclosed part of offending – Sentencing discount warranted – Link with offender’s experience of childhood sexual abuse – Whether moral culpability reduced – Residual discretion – Whether matter of principle raised – Appeal allowed – Resentenced to 7y 4m with non-parole period of 5y – DPP v Dalgliesh(a pseudonym) [2016] VSCA 148, DPP v Dalgliesh (a pseudonym) (2017) 349 ALR 37, R v Doran [2005] VSCA 271 applied – Criminal Procedure Act 2009 s 287.

---

APPEARANCES:	Counsel	Solicitors
For the Appellant	Ms K E Judd QC with Ms R J Sharp	Mr J Cain, Solicitor for Public Prosecutions
For the Respondent	Mr O P Holdenson QC with Mr T S Lynch	Brian Birrell

MAXWELL P

McLEISH JA:

Summary

Incest involving a child is an appalling crime. It involves a breach of trust of the most fundamental kind, and an inexplicable abdication of parental responsibility.[2] Just as seriously, it involves a cynical exploitation by the parent of the opportunity for sexual contact which being in that position of trust presents.[3]
[2]See, eg, R v Ware [1997] 1 VR 647, 653 and DPP v G [2002] VSCA 6 [9]–[10].
[3]Sutton (a pseudonym) v The Queen (2015) 47 VR 496, 505 [28].

Incest involving a child is, moreover, a crime of violence. As the Sentencing Advisory Council has pointed out, sexual penetration of a child is inherently violent, whether or not it is accompanied by additional non-sexual violence.[4] Often, as in the present case, the act of sexual penetration causes the child actual physical pain.
[4]DPP v Dalgliesh (a pseudonym) [2016] VSCA 148 [46] (‘Dalgliesh [No 1]’). See also Sentencing Advisory Council, Sentencing of Offenders: Sexual Penetration with a Child under 12 (10 June 2016) 63.

In this case, the offender (‘M’) was the stepfather of the victim (‘K’), having married her mother. He pleaded guilty to three representative charges of sexual offending. The charges related, respectively, to digital penetration (charge 1), penile-vaginal penetration (charge 2) and lingual penetration (charge 3).[5] In each case, the representative charge related to multiple acts of penetration taking place over a period of approximately two years, when the victim was aged between 11 and 13 and M was aged between 35 and 37.
[5]He also pleaded guilty to one charge of common assault (charge 4).

At the time of the offending, only penile penetration constituted incest, for which the maximum penalty at that time was 20 years’ imprisonment.[6] Oral and digital penetration of a child by a parent or step-parent could only be charged as indecent assault, carrying a maximum penalty of five years’ imprisonment.[7]
[6]Crimes Act 1958 s 52(1) as amended by the Crimes (Sexual Offences) Act 1980.
[7]Crimes Act 1958 s 44(1) as amended by the Crimes (Sexual Offences) Act 1980.

On the incest charge, M was sentenced to four years’ imprisonment. On each of the indecent assault charges, he was sentenced to one year’s imprisonment. He also received a sentence of two months’ imprisonment for one charge of assault. With orders for cumulation, the total effective sentence imposed was five years’ imprisonment, and the judge fixed a non-parole period of two years and ten months.

The Director of Public Prosecutions has appealed to this Court under s 287 of the Criminal Procedure Act2009. The Director contends that the sentences imposed on the sexual assault charges are manifestly inadequate, that is, outside the range reasonably open to the judge in the circumstances of the case if proper weight were given to the aggravating and mitigating circumstances.[8]
[8]See DPP v Karazisis (2010) 31 VR 634 (‘Karazisis’).

For reasons which follow, we would allow the appeal and resentence M. This was very serious offending against a young child. The sentence of four years on the incest charge is well below what was necessary to reflect the objective gravity of the offending and M’s moral culpability. And the indecent assault charges were, plainly enough, of the most serious kind, again calling for significantly higher sentences.

At the same time, the sentences must be moderated to reflect M’s pleas of guilty, together with two mitigating factors peculiar to M’s case. The first is his voluntary disclosure to police of a substantial part of his offending behaviour, at a time when K had not reported the offending and it was uncertain whether she would. The second is that the judge viewed M’s moral culpability as somewhat reduced because of the damaging effect on him of his own childhood experience of sexual abuse.

Balancing these considerations as best we can, we would resentence M to six years’ imprisonment on the incest charge, and to two years’ imprisonment on each of the indecent assault charges. As will appear, the Director conceded that, because of the circumstances of the offending, there should be substantial concurrency between the sentences on the individual charges.

We would cumulate six and nine months respectively on each of the indecent assault charges. On the assault charge, we would reimpose the original sentence of two months, which the Director did not challenge. With cumulation of one month of that sentence, the total effective sentence will be seven years and four months’ imprisonment. We would fix a non-parole period of five years.

The circumstances of the offending

M was born on 12 February 1948 and is 70 years old. He was aged between 35 and 37 at the time of the sexual offending. As already mentioned, M was the stepfather of the complainant (‘K’), having married her mother. K is currently

46 years old. She was aged between 11 and 13 at the time of offending.

K initially grew up with her mother, father, elder brother and younger sister. When her parents separated, K remained with her mother and siblings and moved to another address. M commenced a relationship with K’s mother and moved into the home in or around 1980. M owned a rural property at the time and would regularly have K and her siblings there for weekends and holidays.

On 11 October 1982, M married K’s mother and in the same month they had a child. In August 1983, the family all relocated to the rural property. K shared a bedroom with her sister. Her stepbrother had his own room. The respondent and K’s mother and brother slept in a caravan attached to the house.

The nature and extent of the sexual offending appears from the judge’s findings on the three charges, which were based on the Summary of Prosecution Opening for Plea:

Charge 1, which is a representative charge, relates to events when [K] was aged between 11 and 13. When [K’s] mother was at work and her siblings were in bed asleep, [K] sometimes slept in your bed. When you were also on the bed, you started rubbing [K] on her back, before moving your hands down to her vagina. She describes you regularly using your hand and fingers to stimulate her on her vagina. Sometimes this was done on the outside of her clothing, and sometimes it was skin-to-skin. You also rubbed [K’s] clitoris with your fingers, before inserting your fingers into the vagina of [K];
You would also regularly touch [K’s] vagina while you were sitting on a couch, and [K] would often be sitting on your knee, or sitting next to you on the couch;
Sometimes your actions in stimulating the clitoris of [K] brought her to orgasm and you would occasionally rub your penis against [K] when [you were] performing these actions, or rub your penis against an object if [you were] not [in a] position to rub [K] that way. Over that time, your stimulation by hand and finger slowly decreased where, to the point you more regularly, if not solely, performed oral sex on [K];
…
Charge 2, which is a representative charge, involves events following your activities relevant to Charge 1. You would roll [K] onto her back, pulling her legs apart, and then lay on top of her, after which you inserted your penis into her vagina, causing her to cry. You moved your penis in and out of [K’s] vagina for a period of time, causing her stinging and pain, after which you withdrew your penis and lay beside [K], and started rubbing her back again. Again, you would insert fingers into her vagina;
Charge 2 represents the many times that you had sexual intercourse with [K]. [K] describes sexual abuse happening ‘pretty much every time I went milking with [M]’, as she would accompany you to one of the farms to milk cows. In particular, you would arrange for [K] to get off the school bus instead of returning home, so that you could pick her up. And, in particular, [K] recalls you being on top of her in the vat room, having sex with her a number of times;
[K] recalls that on one occasion, before puberty, she observed blood in her underwear when she returned home, and this blood was caused by you having sexual intercourse with her. [K] also recalls a pattern of you performing oral sex on her before intercourse to help with lubrication, as often she would be in pain during intercourse and be whimpering or crying. [K] recalls one occasion of sexual intercourse happening at home;
…
Charge 3, which is a representative charge, and represents the many times that you performed oral sex on [K] between the ages of 11 and 13, following the activities the subject of charge 1 and charge 2. Following such activities, you would get up and place your head between the legs of [K] and use your tongue to lick her vagina, again, while inserting your fingers into her vagina;
In particular, you would regularly lick [K’s] vagina, typically in the car to, or from, the farm to home. You would typically stop the car close to home, lay [K’s] seat back and perform oral sex on her until she orgasmed. This became such a regular occurrence, often weekly, but more often daily, and you have described it as happening whenever [K] required orgasm, ‘and if she felt the need to have one on a daily basis, or whenever, I was more than happy to oblige’.[9]

[9]DPP v Walsh (a pseudonym) [2017] VCC 1281 [3] (‘Reasons’).

The judge found that the penetrative acts respectively constituting the indecent assaults and the incest ‘occurred many times over the stipulated period of time’.[10] His Honour considered each of the three charges to be ‘serious offending and in particular the incest charge.’[11]
[10]Ibid [48].
[11]Ibid [48], [51].

His Honour then set out the following statement by Chernov JA in R v MKG:

The crime of incest is abhorred by the community. As Batt, J.A. said in

R v VZ
, it is a repugnant offence that strikes at the core of the family relationship and involves the breach of trust and the dereliction of protective duties … That the appellant abused his parental position of moral superiority and trust in relation to the complainant cannot be sufficiently emphasised. Instead of protecting his young daughter, he did her serious harm. Moreover, the sentencing principles of general deterrence, denunciation and just punishment assumed considerable importance in this case.[12]

[12][2006] VSCA 131 [10] (citations omitted).

The sentencing judge continued as follows (addressing M):

Much the same can be said about your sexual offending in general and in particular, the acts of incest over a period of nearly two-and-a-half years when your stepdaughter was aged between 11 to 13 years old.
One only has to read the Victim Impact Statement of [K] and indeed, that of her sister, to understand the physical and mental pain and turmoil that your stepdaughter underwent over those years when the sexual offending occurred and indeed, how that has impacted on her since that date.[13]

[13]Reasons [53]–[54].

The judge then proceeded to sentence M as follows:

Charge

Offence

Maximum

Sentence

Cumulation

1 Indecent assault[14] 5y 1y 4m

2
Incest[15] 20y 4y Base sentence

3
Indecent assault 5y 1y 7m

4
Common assault
2y[16]
2m 1m

Total Effective Sentence: 5y

Non-Parole Period: 2y 10m

Section 6AAA Statement: 7y
[14]Crimes Act 1958 s 44(1) as amended by the Crimes (Sexual Offences) Act 1980.
[15]Crimes Act 1958 s 52 as amended by the Crimes (Sexual Offences) Act 1980.
[16]The judge was told, incorrectly, that the maximum for this offence was three months; see [56] below.
Representative charges

The fact that a charge is a representative charge has a twofold relevance to sentencing. First, it is to be understood as the absence of a mitigating factor, in the sense that a plea of guilty to a representative charge prevents the defendant from ‘any leniency that might otherwise result from the offence being an isolated event’.[17] Secondly, the sentencing court must look at the conduct represented by the charge in order to judge the offending in its full context. The context in this sense

is likely to bear upon matters such [as the] extent of culpability, need for specific deterrence and prospects of rehabilitation.[18]

[17]Reasons [50]; see also DPP v McMaster (2008) 19 VR 191, 202 [49] (‘McMaster’); DPP v EB (2008) 186 A Crim R 314, 318 [15]; DPP v CPD (2009) 22 VR 533, 542–3 [37]–[39]; Reid v The Queen (2014) 42 VR 295, 307–8 [73]–[75].

[18]McMaster (2008) 19 VR 191, 202 [49].

It follows, as the sentencing judge correctly noted, that a representative charge can result in a heavier sentence than a charge relating to an isolated incident.[19] The Director’s submission was that, in assessing the seriousness of each representative charge, and M’s culpability, the judge had to take into account both the frequency of the acts of penetration and the period covered by the representative charge. That proposition was not disputed by senior counsel for M.
[19]Reasons [49].

Accordingly, in our view, the representative charge of incest was to be viewed as significantly more serious, and M’s culpability as significantly greater, than would have been the case if the charge of incest had been based on a single act, or a small number of acts, of penetration. The same view had to be taken of the representative charges of indecent assault, for the same reasons. As mentioned earlier, the conduct constituting those charges was already at the very high end of seriousness because it involved acts of penetration. And those offences were made graver still because, as with the incest offence, M was in breach of trust and in dereliction of his parental duty.[20]
[20]McCray (a pseudonym) v The Queen [2017] VSCA 340 [38]–[39] (‘McCray’).

Concurrency or cumulation

There was debate on the appeal about the extent of cumulation which the judge ordered and, in particular, about whether the individual sexual offence charges involved separate criminality. On one reading of the prosecution summary, the conduct constituting the incest charge had occurred at different times, and in different locations (milking sheds), from the conduct constituting the indecent assault charges (in the home and/or in the car). On the other hand, the conduct constituting charges 2 and 3 was clearly stated to have occurred ‘after performing the acts’ the subject of the previous charge(s).

Ultimately, the Director accepted that M fell to be sentenced on the basis that there were multiple occasions of offending over the period in question and on each occasion M had engaged in one or more different forms of penetration. It was not possible for the judge to have reached any more specific conclusion. In the result, the Director accepted, it was appropriate that there be ‘substantial concurrency’ between the sentences on the three different sexual offence charges.

The judge correctly noted that, because M was to be sentenced to a period of imprisonment on each of charge 1 and charge 2, he fell to be sentenced in relation to charge 3 as a ‘serious sexual offender’, within the meaning of pt 2A of the Sentencing Act 1991. As a result, his Honour was obliged in determining the sentence on that charge to regard the protection of the community as the principal purpose for which sentence was imposed.[21]
[21]Reasons [90].

Moreover, pursuant to s 6E of the Sentencing Act 1991, the term of imprisonment imposed on charge 3 was required — unless his Honour otherwise ordered — to be served cumulatively on any other sentence of imprisonment imposed at the same time.[22] His Honour said:

Save for that principle [the presumption of cumulation], I do consider that there should be a degree of concurrency in relation to charges 1, 2 and 3 as the act constituting charges 1 and 3 often occurred or overlapped with the offending involving incest.[23]

Both the Director and senior counsel for M accepted this formulation.

[22]Ibid [92].

[23]Ibid [93].

M’s experience of childhood sexual abuse

The defence relied on a report from Ms Carla Lechner, a clinical psychologist. That report recorded M’s personal history as including intermittent sexual abuse by a maternal uncle, who would visit his mother about twice a year and stay in the same bungalow as M. The uncle required M to participate in both oral and anal intercourse. M also told Ms Lechner that he had been sexually abused by a female neighbour aged in her thirties who, when he was 11, initiated a sexual relationship with him, as a result of which he regularly engaged in both oral and penile penetration. The neighbour’s husband would watch this activity and make suggestions, including successfully encouraging M to anally penetrate his wife.

The judge set out in his reasons the following passage from Ms Lechner’s report:

With respect to his offending, [M] takes full responsibility for his actions. It would appear that his own experiences of abuse ‘primed’ him for becoming a perpetrator in a number of ways. Firstly, he was exposed to sexual activity at a young age and therefore considered this to be normal, particularly as the sexual activity was enjoyable and he perceived himself to be a willing participant. It is likely, given his age and the protracted nature of the abuse, that this had some bearing on his neurological development. Secondly, the link between providing sexual gratification and being shown affection was very much a part of his experience and again, for him, became normative. Thirdly, the loss of his daughter and attendant feelings of both loss and guilt, also ‘primed’ him to view the victim as a ‘replacement’ daughter. It is unclear why it turned into a sexual love however, the ‘special bond’ that he wanted to share with her, in his mind, involved sexual contact. His need for love and affection and a ‘special bond’ overrode the moral implications of his behaviour and allowed him to rationalize his behaviour as fulfilling her needs not his. The fact that he thought about a marriage proposal in her adult years lends support to the notion that he was fixated on her, and infatuated with her well into her adult life.

It is only over time that [M] has come to be honest about his motivations and to accept moral responsibility for his actions in the knowledge that his behaviour constitutes abuse that has had implications for the victim’s development. His decision to voluntarily come forward and to ‘come clean’ is, in part, his way of making amends to [K].[24]

[24]Ibid [36].

His Honour then made the following findings:

I do accept, as a matter of probability, that as stated to Ms Lechner, you were sexually abused as a child by the neighbours from about the age of 11 for some years and also by a maternal uncle who required you to perform both oral and anal intercourse. Furthermore, I also accept the history that you gave Ms Lechner that you were raised by extremely religious and emotionally cold parents and effectively did not have a childhood, as you rarely played and [were] expected to do the work of man from an early age. Your father was physically abusive towards … you and your siblings.
I also accept the opinion of Ms Lechner that your experiences of sexual abuse ‘primed’ you to become a perpetrator of sexual abuse. I also accept that the loss of your daughter and attendant feelings of both loss and guilt also ‘primed’ you to view [K] as a replacement daughter.[25]

[25]Ibid [67]–[68].

His Honour then set out the following paragraph from the judgment of Ormiston JA in R v AWF:

There is in fact very little authority upon the significance of childhood sexual abuse as a factor in sentencing. At the least the consensus of views expressed by judges is to the effect that such evidence is relevant, but its relevance and persuasiveness will vary greatly from case to case, especially where the charges are of the most serious kind. … So in a case of both sexual assault and murder Hunt CJ at CL said in R v Lett:
The link no doubt helps to explain why the offender committed the offence, but it could hardly be said to excuse it. Minds may well differ as to whether such a history should mitigate the offence of child sexual abuse committed by the offender, but I am quite unable to see how it could possibly mitigate the offence of murder … .[26]

[26][2000] 2 VR 1, 3 [4] (citations omitted), quoted in Reasons [69].

The sentencing judge continued:

Ormiston [JA] noted that such evidence is clearly relevant where there is no dispute to the existence of the abuse and there is some expert evidence which would connect that abuse with the offender’s subsequent behaviour.
In all the circumstances, I am so satisfied there is a connection between your experience of being sexually molested as a child and the perpetration of the subject offences. I do accept that consistent with the principles in R v AWF … such finding ameliorates to some extent your moral culpability in respect of the offending and accordingly, is relevant in determining an appropriate sentence.[27]

[27]Reasons [70]–[71] (emphasis added).

The Director did not take issue with the judge’s finding, based on

Ms Lechner’s report, that there was a connection between M’s childhood experiences and his sexual offending against K. Her submission, however, was that M’s moral culpability was not reduced ‘to any great extent’ on that account. The Director submitted that there was nothing in the materials to suggest that M was incapable of appreciating that what he was doing was criminal, or of understanding the hurt that such offending could cause, or that it would attract serious punishment.

Senior counsel for M conceded that his client knew that what he was doing was wrong. He maintained nevertheless that there was a proper basis for a reduction in moral culpability, relying in particular on Ms Lechner’s statement that

the link between providing sexual gratification and being shown affection was very much a part of [M’s] experience and again, for him, became normative.

In our opinion, this was a matter deserving of only moderate weight in mitigation. Incest involving a child is, by definition, an offence of very high culpability, since it is so obviously contrary to every tenet of parental care for children and since every parent is taken to understand that sexual activity is absolutely prohibited.

As his counsel conceded, M knew that it was wrong to be having sex with his young stepdaughter. It is difficult, in those circumstances, to accept that M’s moral blameworthiness is significantly less than that of any other offending parent. As Hunt CJ at CL said in the passage quoted above, the link with M’s own experience ‘no doubt helps to explain why [he] committed the offence, but it could hardly be said to excuse it’.[28]
[28]See also R v Lomax [1998] 1 VR 551, 560–1.

A separate matter arising from Ms Lechner’s report was her diagnosis of depression and post-traumatic stress disorder. The judge accepted the defence submission that, as a result, imprisonment would be harder for M than for someone without those conditions.[29] That finding was not challenged on the appeal.
[29]Reasons [86].

Discount for voluntary disclosure

It was over 30 years before K disclosed what had happened to her. In May 2015, she and her husband were attending a wedding, together with other members of the family. After the reception, K told her younger sister some of the details of the sexual abuse, during which time she became visibly distressed. Over the next few weeks, members of K’s family encouraged her to report the abuse to the police.[30]
[30]Ibid [4].

M became aware that K had disclosed the abuse and visited her, asking if there was ‘a problem’. He subsequently met with her several more times. He offered ‘help’ and ultimately offered to hand himself in to the police. He attended the local police station and admitted to some of the offending. A detailed statement was then taken from K, before a more detailed interview was conducted with M.[31]
[31]Ibid [5].

In the first interview, M stated categorically that he had never engaged in sexual intercourse with K.[32] K’s sexuality ‘was developing [a]nd I think she needed a fair bit more stimulation’. He went on:

What it was basically boiled down to is I went out of my way to do what I could to please her. If it pleased her I was more than happy to oblige … I got the joy of seeing her enjoy the moment.[33]

[32]Ibid [6].

[33]Ibid.

In the second interview, M admitted that he ‘would have’ performed oral sex on K on a minimum of 50 separate occasions. He maintained that it was she who had instigated the oral sex and asserted that he himself had never sought sexual satisfaction. The main source of pleasure for him, he said, was giving K sexual pleasure. He accepted that sexual intercourse ‘had occurred on one occasion’ and asserted that he had been ‘a very reluctant party’.

On the plea, counsel for M submitted that his voluntary attendance at the police station and disclosure of some of the offending called for a ‘substantially high’ discount in the sentence. Reliance was placed on the decision of this Court in

R v Doran
.[34] In that case, the offender was charged with sexual offences against a particular child. When interviewed, he made full admissions. About a month later, he contacted police and told them that he had committed a number of offences against other children. The sentencing judge said that, but for this disclosure, it was ‘most unlikely’ that those other offences would have been discovered.[35]
[34][2005] VSCA 271 (‘Doran’).
[35]Ibid [4].

In allowing the appeal against sentence, Buchanan JA (with whom Eames and Nettle JJA agreed) said:

Most importantly, however, the appellant quite voluntarily, without any pressure from any authorities, provided the prosecution with all the evidence necessary to convict him of the majority of the crimes. In my view, the consequences of the appellant's admissions are that they reduce the need for a sentence to personally deter the appellant, they increase the prospects of his successful rehabilitation and they demonstrate genuine remorse for his actions. I would add that I think it important that the appellant should receive a demonstrable discount in his sentence in order to encourage others to make like admissions.[36]

[36]Ibid [14].

Buchanan JA also cited the following passage from the judgment of Kirby J in Ryan v The Queen:

Unless persons such as the appellant are encouraged to bring unreported cases to notice, the likelihood is that, in the great majority of instances, such crimes will not be reported. They will therefore go unpunished. Accordingly, both from the point of view of society and of the victims of crime, there are strong reasons of policy why the law should encourage offenders to make full confessions. It should certainly not discourage them. Encouraging a full confession may also be an important first step in securing help for, and counselling of, the offender. This is, likewise, one of the objects of criminal punishment and thus of judicial sentencing.[37]

[37](2001) 206 CLR 267, 295, cited in Doran [2005] VSCA 271 [15].

In the present case, the judge made the following findings:

I do consider that you are entitled to a sentencing discount beyond the discount for pleading guilty on the basis that you did voluntarily come forward and admit the substance of the bulk of the offences, save for the repetitive nature of the sexual intercourse to which you ultimately pleaded. Although it is a matter of speculation as to whether [K] would have come forward and made complaints in the absence of your voluntary confessions, it must also be borne in mind that you were aware that prior to going to the authorities [K] had aired her grievances with other members of her family and had been urged to attend police.
In all the circumstances, I consider that the discount should not be as extensive as one given in circumstances where an accused makes a full confession in circumstances where the authorities, absent that confession, would have no prospect of prosecuting the crimes confessed to.[38]

[38]Reasons [83]–[84].

We respectfully agree with his Honour’s assessment. It was of real significance, in our opinion, that M went to the police at a time when K was seemingly reluctant to do so and when, as a result, it was far from certain whether a police report would ever be made. By his voluntary action, he turned an uncertainty into a certainty, knowing as he did so that he was thereby exposing himself to the prospect of imprisonment.

On the other hand, the disclosures he made were misleadingly incomplete. They fell well short of ‘a full confession’. There was no disclosure of the incest offence at all. Both by denying penile-vaginal intercourse and by portraying himself as a reluctant party to sexual activity instigated by K, M was obviously trying to minimise the seriousness of the offending.

Changing sentencing for incest

As already mentioned, the judge was obliged to sentence in accordance with what this Court had said in Dalgliesh [No 1]. In his reasons, his Honour set out the following passage from that decision:

As we have said, community values have an important role to play in assessments of the objective gravity of a particular offence. Sentencing for incest must reflect society’s denunciation of the sexual abuse of children and the profound harm which it causes. The very high maximum penalty underlines the seriousness with which the offence is regarded.
Our review of sentencing for incest enables us to make a number of general observations about the current state of sentencing. Most sentences for incest with a dependent child under the age of 18 are around three years and six months or four years’ imprisonment. Slightly higher sentences are imposed if the charge is a representative one involving high levels of repetition or victim impact, or if it involves other circumstances of aggravation, such as ejaculation, pregnancy, threats or overt violence. The highest recorded sentence in such circumstances is six years on a guilty plea and seven years following a trial. There is little evidence of any real differential where the victim is very young.
In our view, current sentencing for incest reveals error in principle. The sentencing practice which has developed is not a proportionate response to the objective gravity of the offence, nor does it sufficiently reflect the moral culpability of the offender. Sentences for incest offences of mid-range seriousness must be adjusted upwards. That is a task for sentencing judges and, on appeal, for this Court. The criminal justice system can be — and should be — self-correcting.
Incest is a crime of violence and must be so regarded. General and specific deterrence and denunciation must be given their proper emphasis. The long-term harm done to the victim, now better understood, must be given due weight in the sentencing calculus. Sentences must be commensurate with the seriousness of the breach of parental responsibility involved.
On the current state of sentencing, there is no sufficient differentiation between worst case and mid-range offending. As we have said, sentences for mid-category offending have been constrained by sentences for worst category offending, and the sentencing range for mid-range offences has been inappropriately compressed.[39]

[39][2016] VSCA 148 [126]–[130] (emphasis added) (citations omitted).

In Dalgliesh [No 1], the offender had pleaded guilty to two charges of incest, the first of which had resulted in the pregnancy of the teenage victim. On a proper application of sentencing principles, the Court said that

a sentence of the order of seven years’ imprisonment was warranted for charge 2 [the non-pregnancy related charge], with the aggravating circumstance of pregnancy requiring a significantly higher sentence again on charge 1.[40]

[40]Ibid [132].

On appeal by the Director, the High Court held that this Court had erred in not applying to the respondent offender its conclusion as to the inadequacy of the sentence imposed by the sentencing judge.[41] Acknowledging that this Court had been concerned to avoid perceived unfairness to the respondent, the High Court said:

The only expectation that an offender can have at sentence is of the imposition of a just sentence according to law.[42]

[41]DPP v Dalgliesh (a pseudonym) (2017) 349 ALR 37, 52 [70] (‘Dalgliesh [HCA]’).

[42]Ibid 51 [65].

The High Court endorsed this Court’s conclusion that current sentencing practices for incest offences did not reflect the objective gravity of the offending. The majority (Kiefel CJ, Bell and Keane JJ) said that the existing range of sentences

was seen [by the Court of Appeal] to reflect a disregard of the gravity of the offending as indicated by the maximum sentence prescribed for the offence, and the moral culpability of the offender. The view of the Court of Appeal that this amounted to an error of principle was clearly correct.[43]

[43]Ibid 50 [53].

The Director’s appeal in that case challenged the sentence of three years and six months’ imprisonment on the incest charge which involved the pregnancy. On remitter to this Court, the respondent was resentenced on that charge to seven years and six months’ imprisonment.[44] The Court noted that — because of the prolonged appeal process to which the respondent had been subjected — this was a ‘slightly lower sentence … than might otherwise have been appropriate’.[45] The Court made clear that the decision to affirm the sentence of three years’ imprisonment on the other incest charge merely reflected the Director’s decision not to challenge it.[46] It was not to be taken as meaning that the Court regarded the sentence as ‘anywhere near appropriate’.[47]
[44]DPP v Dalgliesh (a pseudonym) [2017] VSCA 360 (‘Dalgliesh [No 2]’).
[45]Ibid [82].
[46]Ibid [83].
[47]Ibid.

Recently, in Carter (a pseudonym) v The Queen,[48] this Court dismissed an appeal against sentences of six years’ imprisonment, and a total effective sentence of eight years’ imprisonment, on two charges of incest. Each charge was constituted by a single act of digital penetration. On the first occasion, the complainant was 11 years old; on the second occasion, she was 12.
[48][2018] VSCA 88 (‘Carter’).

It was contended for the appellant in that case that — consistently with what was said in Dalgliesh [No 1] — sentences for incest should be adjusted upwards ‘incrementally’. The Court rejected that argument, holding that:

Such an approach cannot stand with the reasoning in Dalgliesh [HCA], which requires a sentencing court in such circumstances to correct the error of principle underlying inadequate current sentencing practices and impose a just sentence according to law, even where an offender has pleaded guilty in light of current sentencing practices. The incremental increase cases in Victoria should be taken to have been overruled by Dalgliesh [HCA] …[49]

[49]Ibid [80] (citations omitted).

There are still relatively few decisions of this Court on ‘post-Dalgliesh’ sentences. Relevant to the present task are the following:

·Director of Public Prosecutions v Tewksbury (a pseudonym): pleas of guilty to two single-occasion charges of incest, one involving lingual penetration, the other digital. Allowing the Director’s appeal against sentence, this Court imposed sentences of five, and five and a half years, respectively. (Applicable maximum: 25 years.)[50]
·Grantley (a pseudonym) v The Queen: pleas of guilty to one representative charge of incest (two occasions) and one single-occasion charge. Sentenced six and a half years and six years respectively; total effective sentence of nine years, with a non-parole period of seven years; appeal against sentences dismissed. (Applicable maximum: 25 years.)[51]

[50][2018] VSCA 38.

[51][2018] VSCA 112.

These sentences bear out what was to be expected following the Dalgliesh cases. They also indicate that the sentence in the present case was inadequate to reflect the seriousness of the offending, notwithstanding the mitigating factors to which we have referred. In our opinion, for these reasons, the sentence for incest was manifestly inadequate. The same observation applies with respect to the sentences for indecent assault. Although not then within the definition of incest, and thus carrying a much reduced maximum sentence, the indecent assaults had all the characteristics of incest and were therefore of the most serious kind.

The assault

Unsurprisingly, the submissions on the plea and the sentencing reasons were almost entirely concerned with the sexual offence charges. The charge of assault was also serious, however, involving as it did M beating K on the arms and back with a piece of poly pipe, to which a brass hose was attached. K was left with ‘a substantial amount of welts or raised bruises all over her back, arms and back of her legs’.[52]
[52]Reasons [3].

Erroneously, the Crown summary stated that the maximum penalty for that offence was three months’ imprisonment. As was confirmed on the appeal, the applicable maximum was in fact two years’ imprisonment.

Whatever might be said about the adequacy of the sentence of two months’ imprisonment, the Director made clear that she did not challenge it. The Director’s position undoubtedly reflected the fact that any error in the sentence was to be explained by the prosecutor’s misstatement of the maximum.

Residual discretion

On a Director’s appeal against sentence, this Court always has a residual discretion to dismiss the appeal even if persuaded by the Director that the sentence under challenge is manifestly inadequate.[53] The submission for the Director was that there was nothing in the circumstances of the present case which could enliven the residual discretion. Instead, the Director submitted, if the Court concluded that the sentence imposed was ‘manifestly too low’, it was the proper function of the Court to correct that injustice.[54]
[53]Karazisis (2010) 31 VR 634, 652 [73].
[54]Dalgliesh [HCA] (2017) 349 ALR 37, 50 [63].

Senior counsel for M advanced two considerations which were said to favour the exercise of the residual discretion. First, counsel submitted, the prosecutor had not done what was reasonably required to assist the sentencing judge to avoid error. Specifically

the prosecutor misstated the maximum penalty for the offence the subject of charge 4, made no submissions concern[ing] the objective gravity of the offending or any matter or feature of the case which would or might lead to a higher sentence and did not identify any ‘comparable’ or ‘like’ cases.

Secondly, counsel submitted that where, as here, the purpose of a Director’s appeal was to establish or maintain principles for the guidance of sentencing courts, that purpose could

be achieved to a significant extent by an unequivocal statement by this Court that the sentence imposed is manifestly inadequate, with the consequence that it is simply not necessary for this Court to proceed to resentence [M] to a higher sentence.

We deal with those points in turn. It is well established that, where an act or omission of the prosecutor can be seen to have led the sentencing court to impose a manifestly inadequate sentence, the appeal court may exercise its discretion not to intervene.[55] But this is not such a case. The prosecutor’s submissions, though not expansive, were unexceptionable. (The error with respect to the maximum penalty for the assault charge may be disregarded, as the sentence on that charge is not challenged.)
[55]See, eg, DPP v Holder (2014) 41 VR 467, 469 [7]–[8].

The prosecutor properly drew attention to the seriousness of the offending, and the impact on the victim, and made detailed submissions about the degree of mitigation attributable to M’s voluntary disclosures and his childhood experience of sexual abuse. As to comparable cases, there was — unusually — little material on which the prosecutor could draw. As was pointed out in the course of argument, the judge had to sentence M in the light of what was then a relatively recent statement by this Court in Dalgliesh [No 1], that existing sentencing practices for incest were seriously inadequate and could no longer provide meaningful guidance.

As to the second point, the Court may decline to intervene if undesirable consequences would follow from the setting aside of a manifestly inadequate sentence and the imposition of a higher sentence on the offender. As the Director pointed out, that was the circumstance in Green v The Queen, where the High Court said that

a powerful consideration against allowing a Crown appeal would be the result and creation of unjustifiable disparity between any new sentence and an unchallenged sentence previously imposed upon a co-offender.[56]

[56](2011) 244 CLR 462, 477–8 [37] (‘Green’).

In special circumstances of that kind, the ‘wider purpose’ of establishing sentencing standards can be achieved by declaring the sentence under appeal to have been inadequate but without interfering.[57] No countervailing consideration of that kind arises in the present case.
[57]Ibid.

The proper approach to sentencing for incest has been the subject of some uncertainty in recent years, which has now been clarified by the Dalgliesh decisions and in Carter. The working out of the principles in practice is assisted by the present case. That suffices to take the case out of the category of ‘mere’ manifest inadequacy. Once that is established, it would be highly artificial to exercise the residual discretion in respect of the indecent assault sentences, while still sentencing for the incest offence and, necessarily, applying the totality principle.

In the circumstances, the present sentence raises a matter of principle as to sentencing for incest after Dalgliesh and there is no occasion to exercise the residual discretion.[58]
[58]DPP v O’Neill (2015) 47 VR 395, 422 [105]; Green (2011) 244 CLR 462, 477 [36].

We have had the benefit of reading in draft what Ashley JA has written regarding the nature of an appeal against sentence by the Director. We agree that the current provision in s 287 of the Criminal Procedure Act2009 places responsibility with the Director for determining whether an appeal is appropriately commenced, and that considerations relevant to that question may also bear on the Court’s approach to the residual discretion. As already noted, however, we do not agree that this appeal attracts the discretion.

To the extent that the Director’s submissions in this appeal might be taken as implying that manifest inadequacy, without more, suffices to justify commencing a Director’s appeal, and to resist the exercise of the residual discretion on the ground of want of principle, that question should await determination after full argument in an appropriate case. The reasons of Ashley JA show that, were the Director to adopt that position, it might be necessary for the Court to sit as a Bench of five.

Prosecution summary as agreed statement of facts

There was discussion on the appeal about the status of the document entitled ‘Summary of Prosecution Opening for Plea’, to which we referred earlier.[59] The Director drew attention to the statement by the sentencing judge, in the course of defence submissions on the plea, that he was obliged to sentence M ‘in relation to what are the agreed facts’. His Honour said that he proposed to take into account the description of the offending set out ‘in the agreed statement of facts’.
[59]See [14] above.

The Director submitted that his Honour had thus mischaracterised the status of the Summary. In her submission, a prosecution summary of this kind does not constitute an agreed statement of facts. The Director accepted that the summary was ‘the agreed basis’ of the plea, in that M had entered his pleas of guilty on the basis of what was in the summary. But she submitted that the summary

does not necessarily encompass the whole of the basis upon which the sentencing judge can proceed.

The judge can, it was submitted, go beyond the summary
to the depositions for more context, to look at photographs, to look at exhibits, to draw appropriate inferences.

As was pointed out in argument, the approach taken by the sentencing judge appears consistent with this Court’s understanding of the status of a prosecution summary at the plea hearing. Reference was made to Director of Public Prosecutions v CPD,[60] where the Court was considering how ‘the full circumstantial context’ should be determined for the purpose of sentencing on a representative charge. The Court said:

On a plea, the Crown summary will typically function as a statement of agreed facts which will both describe and confine the context for this purpose.[61]

[60](2009) 22 VR 533.

[61]Ibid 543 [41]. See also Formosa v The Queen (2012) 36 VR 679, 681 [8]; cf Chow v DPP (1992) 28 NSWLR 593, 606–7.

Naturally, it is a matter of great concern to a person considering whether or not to plead guilty to have certainty about the factual basis upon which he/she will be sentenced if that plea is entered. Reaching agreement on what will be set out in the prosecution summary seems a most sensible way to proceed. The danger of a sentencing judge going outside the summary is that reliance may be placed on some additional matter, adverse to the offender, without proper notice being given to the defence. Should that occur, an appeal against sentence will almost inevitably succeed on the basis of a breach of natural justice.[62]
[62]See, eg, R v Duong [1998] 4 VR 68; R v Humphries [2010] VSCA 161 [10]–[11].

On any plea, it is essential that both parties and the judge be clear about the function of a prosecution summary. If the judge has obtained — or is invited to seek — additional information from the depositions or the exhibits, this should be made clear at the commencement of the plea hearing, and the additional information clearly identified so that it can be addressed by submission if necessary.

Conclusion

For the reasons we have given, the appeal should be allowed, the sentences set aside and M resentenced as set out below.

Charge

Offence

Maximum

Sentence

Cumulation

1 Indecent assault 5y 2y 6m

2
Incest 20y 6y Base sentence

3
Indecent assault 5y 2y 9m

4
Common assault
2y
2m 1m

Total Effective Sentence: 7y 4 m

Non-Parole Period: 5y

Section 6AAA Statement: 10y, with non-parole period of 7y 6m

ASHLEY JA:

Before the Court is an appeal brought by the Director of Public Prosecutions (Victoria) (‘the Director’) under s 287 of the Criminal Procedure Act 2009 (‘the Act’). The Director contends that sentence passed upon the respondent was manifestly inadequate.

Antecedent to consideration of the appeal ‘on the merits’, there is a question which, in my opinion, is of very considerable importance. It was agitated to an extent in the oral hearing of this appeal. It concerns general principles which apply in the case of Director’s appeals. The question is this: was the institution of this appeal warranted? As will be seen, I consider that the answer to that question is ‘no’.

Then there is a further, related question: in that event, what, if anything, is the Court empowered to do to relieve a respondent from the possible, and incongruous, consequence that, in respect of an appeal which should not have been brought, a heavier sentence will be imposed? To that question I later provide a provisional answer.

The earliest legislation

By s 2 of the Criminal Appeals Act 1970, which relevantly amended the Crimes Act 1958 (‘Crimes Act’), the Crown in right of the State of Victoria was first given power to appeal against sentence imposed in some criminal matters. Section 567A(1) of the Crimes Act, as then inserted, provided that:

Where sentence is passed on a person convicted on indictment and the Attorney-General considers that a different sentence should have been passed and is satisfied that an appeal should be brought in the public interest the Attorney-General, on behalf of Her Majesty, may appeal to the Full Court against the sentence passed on the conviction unless the sentence is one fixed by law.

The sub-section was subject to some amendment in the period between 1970

and its repeal and replacement by s 287 of the Act in 2009. Amendment largely concerned extension of the Crown’s power to appeal so as to cover sentences imposed in additional circumstances, substitution of the Director for the Attorney-General, and substitution of the Court of Appeal for the Full Court.

The operative sub-section of s 567A of the Crimes Act, as inserted in 1970,[63] was sub-s (4), which provided:

Upon an appeal under this section the Full Court shall, if it thinks that a different sentence should have been passed, quash the sentence passed at the trial and pass such other sentence warranted in law (whether more or less severe and including an order for probation) in substitution therefor as it thinks ought to have been passed.

[63]It operated from 15 April 1971.

Jurisprudence preceding the commencement of the Act

By the time of the repeal and replacement of s 567A, an extensive jurisprudence had developed with respect to Crown appeals, both as authorised by s 567A, and as permitted in other jurisdictions.[64] A central feature of that jurisprudence was that Crown appeals should only be brought in ‘the rare and exceptional case’.
[64]Provision for Crown appeals against sentence had been first provided for in 1924 in the case of New South Wales and Tasmania. A relevant provision was introduced in Queensland in 1939. Specific provision was made in 1975 in Western Australia, and in 1980 in South Australia.

As to what would constitute a case of that character, Charles JA, with whom Winneke P and Hayne JA agreed, said this in R v Clarke:

1.An appeal by the Crown should be brought only in ‘the rare and exceptional case’ to establish some point of principle. The reason is that such appeals ‘represent a departure from traditional standards of what is proper in the administration of criminal justice in that, in a practical sense, it is contrary to deep-rooted notions of fairness and decency which underlie the common law principle against double jeopardy’.
2.Occasions may arise for the bringing of a Crown appeal (a) where a sentence reveals such manifest inadequacy or inconsistency in sentencing standards as to constitute error in principle; (b) where it is necessary for a court of criminal appeal to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons; (c) to enable the courts to establish and maintain adequate standards of punishment for crime; (d) to enable idiosyncratic views of individual judges as to particular crimes or types of crimes to be corrected; (e) to correct a sentence which is so disproportionate to the seriousness of the Crime as to shock the public conscience; (f) to ensure, so far as the subject matter permits, that there will be uniformity in sentencing.
3.A court of criminal appeal dealing with any appeal against sentence, including by a prisoner, is not a court hearing the matter anew, and is not entitled to substitute its own opinion for that of the sentencing judge merely because it considers the sentence inadequate or excessive. It may only interfere if there is manifest inadequacy or it is shown that the sentencing judge fell into material error of law or fact.
Allpass is also authority for the following propositions:
4.When, in response to a Crown appeal, the court decides to re-sentence an offender, it ordinarily gives recognition to the element of double jeopardy involved (in twice standing for sentence) by imposing a sentence that is somewhat less than the sentence it considers should have been imposed at first instance.
5.An appellate court has an over-riding discretion which may lead it to decline to intervene, even if it comes to the conclusion that error has been shown in the original sentencing process. In this connection, the conduct of the Crown at the original sentencing proceedings may be a matter of significance.[65]

[65][1996] 2 VR 520, 522 (citations omitted) (‘Clarke’).

The principles governing Crown appeals were further summarised by Redlich JA in Director of Public Prosecutions v Bright.[66]
[66](2006) 163 A Crim R 538, 542–3 [10] (‘Bright’). See also his Honour’s very general obiter dicta discussion of the role of an intermediate appellate court in Ashdown v The Queen (2011) 37 VR 341, 407–9 [193]–[201].

Five points should immediately be made. First, the jurisprudence emphasised that courts had a role in ensuring that Crown appeals remained rare and exceptional. Except in a jurisdiction where the Crown required leave to appeal, a court could not prevent an appeal being instituted by the Crown. But it could ensure, practically, that Crown appeals were rare and exceptional, by discouraging their being brought except in such circumstances. That was achievable by the way in which such appeals were resolved, often enough by emphasising the significance of an offender being subjected to ‘double jeopardy’, and bringing that consideration to bear in the exercise of the so-called residual discretion. I should add that it was always part of the Director’s role to consider the exceptional character of a Crown appeal before commencing such an appeal. So much was stated by the Court of Criminal Appeal in R v Diep.[67]
[67](1994) 76 A Crim R 66, 69.

Second, the rare and exceptional character of a Crown appeal leading to its being upheld was not satisfied only because the sentence which had been passed was manifestly inadequate. See, in that connection, the language of Charles JA in Clarke, where his Honour referred to ‘such manifest inadequacy or inconsistency in sentencing standards as to constitute error in principle’;[68] and the observations by Redlich JA in Bright that ‘manifest inadequacy alone will not be sufficient to warrant appellate intervention’;[69] and that ‘[b]ecause of the element of double jeopardy, Crown appeals are regarded as having a “rare and exceptional” character which calls for restraint, even where manifest inadequacy may be present’.[70]
[68][1996] 2 VR 520, 522.
[69](2006) 163 A Crim R 538, 542 [10].
[70]Ibid.

Third, and relatedly, the exceptional character of a Crown appeal would be eroded if manifest inadequacy of sentence, unqualified otherwise, was held to be sufficient to justify institution of a Crown appeal. A Crown appeal would then become ‘the other side of the coin’ of an offender’s appeal. Moreover, because an offender must now seek leave to appeal, whilst there is no such restraint on the Crown, a Crown appeal would now be easier to mount and maintain than a challenge to sentence by an offender.[71]
[71]It may also be mentioned that, even if leave has been granted, an offender runs the risk (though in practice it will rarely be so) of sentence being increased. See the Act s 281(3). The Director faces no comparable risk.

Fourth, and again relatedly, it might be said that manifest inadequacy of a sentence, as with manifest excess, can and has been described in the language of error in principle. So, it might be argued, an appeal on the ground of manifest inadequacy falls within the notion of an appeal to ‘establish some point of principle’; or fulfils the criterion of ‘error in principle’. But care must be taken in transposing language used in one connection into another situation. Moreover, acceptance of that argument would avoid addressing the language of qualification used in Clarke, Bright and many later cases.

Fifth, to say that a Crown appeal should only be brought in the rare and exceptional case had a certain circularity. The general proposition lacked concrete content until authorities established the limited circumstances in which such an appeal would be countenanced. Establishing those circumstances in turn tended to reinforce the rare and exceptional nature of Crown appeals.

Sections 287, 289 and 290 of the Act; and DPP v Karazisis

Then came the repeal of s 567A of the Crimes Act and its replacement by, most relevantly, ss 287, 289 and 290 of the Act. This is what they say:

287Right of appeal—inadequate sentence
The DPP may appeal to the Court of Appeal against a sentence imposed by an originating court if the DPP—
(a)considers that there is an error in the sentence imposed and that a different sentence should be imposed; and
(b)is satisfied that an appeal should be brought in the public interest.

289 Determination of Crown appeal
(1)On an appeal under section 287, the Court of Appeal must allow the appeal if the DPP satisfies the court that—
(a)there is an error in the sentence first imposed; and
(b)a different sentence should be imposed.

(2)In considering whether an appeal should be allowed, the Court of Appeal must not take into account any element of double jeopardy involved in the respondent being sentenced again, if the appeal is allowed.
…

290Orders etc. on successful appeal
(1)If the Court of Appeal allows an appeal under section 287, it must set aside the sentence imposed by the originating court and impose the sentence, whether more or less severe, that it considers appropriate.
(2)If the Court of Appeal imposes a sentence under subsection (1), it may make any other order that it considers ought to be made.
(3)In imposing a sentence under subsection (1), the Court of Appeal must not take into account the element of double jeopardy involved in the respondent being sentenced again, in order to impose a less severe sentence than the court would otherwise consider appropriate.

The following matters should immediately be noticed.

First, in substance there is nothing new in s 287 when it is compared with the repealed s 567A(1). The core requirements which establish the jurisdiction to appeal remain — (a) the Director considering that there was an error in the sentence imposed (the jurisprudence which developed with respect to s 567A made the need for error clear. It is now explicitly stated);[72] (b) the Director considering that a different sentence should have been imposed; and (c) the Director being satisfied that an appeal should be brought in the public interest. To be clear, s 287 does not expand the jurisdiction to appeal conferred on the Director ever since passage of the Criminal Appeals Act 1970.
[72]The reason for inserting specific reference to error was explained, rather more usefully than often occurs, in the explanatory memorandum to the Act. See Explanatory Memorandum, Criminal Procedure Bill 2008 103–4, 106. Whilst the discussion is at cl 281, it is cross-referenced at cl 289.

Second, as explained by Ashley, Redlich and Weinberg JJA in their joint judgment in Director of Public Prosecutions v Karazisis (‘the joint judgment’),[73] the Court’s residual discretion to dismiss a Director’s appeal nonetheless continues to exist, but shorn of any reliance upon double jeopardy.
[73](2010) 31 VR 634.

Third, the joint judgment in Karazisis paid attention to the question whether, in light of the new legislative regime, Crown appeals should no longer be regarded as rare and exceptional. Their Honours accepted that this characterisation no longer bore upon the Court’s consideration of an appeal once instituted and brought before it. But they further concluded that the Director now had a responsibility to ensure that appeals were brought for limited, and only for limited, purposes:

In our view, the general principles discussed in both Clarke and Bright continue to inform the director’s decision whether or not to commence an appeal pursuant to s 287 of the Act. That is to say, the new regime does not do away with the need for the director to be personally satisfied that the case possesses those qualities which bring it within those circumstances contemplated in Clarke and Bright.
Section 287(a) provides that, before initiating an appeal, the director must consider that there is an error in the sentence imposed and that a different sentence should be imposed. The language appears at first glance to mirror the test which governs the determination of Crown appeals pursuant to s 289.
There is, however, a significant difference. Section 287 focuses upon the director’s state of mind. Section 289 is concerned with the court’s satisfaction that the relevant conditions are met. It is only in relation to that latter consideration that the element of double jeopardy has specifically been removed.
It seems to us that s 287 should be interpreted expressio unius. The express abolition in ss 289 and 290 of double jeopardy as a relevant factor when considering Crown appeals against sentence stands in stark contrast with the omission of any such abolition in s 287.
In addition, we note that the legislative precursor to s 287, namely s 567A(1) of the Crimes Act, has been the subject of judicial consideration. In Diep, the Court of Criminal Appeal noted that, in this State, leave of the court is not a pre-requisite to a director’s appeal. It added, however, that ‘[t]he filtering process is performed by the Director of Public Prosecutions himself’. The court went on to say that it might thus be expected that the director would not initiate an appeal to this court unless, in accordance with those common law constraints traditionally recognised, the circumstances were ‘exceptional’.
It is one thing to impute to the Parliament an intention to alter the outcome of Crown appeals, which the new provisions clearly manifest. It is altogether another to impute to the Parliament, as well, an intention to increase the frequency with which such appeals are initiated.
Save to the extent that double jeopardy is removed from the court’s consideration by ss 289(2) and s 290(3), Parliament has not, in our opinion, evinced an intention to abolish or modify the constraints which courts of the highest authority in this country have always applied to Crown appeals against sentence. There is no basis for reading into s 287, which concerns the director only, a similar abrogation of what we would regard as ‘a fundamental common law right’ embedded in not just the principle of double jeopardy, but a host of allied protections.
Had Parliament intended to require the director to disregard double jeopardy when considering the matters set out in s 287(a), or perhaps as importantly, the requirement in s 287(b) that he be satisfied that an appeal should be ‘brought in the public interest’, it would, in our view, have been expected to have said so.[74]
And, at [120]:
The notion that Crown appeals should be ‘rare and exceptional’ no longer applies as a sentencing principle to which this court must have regard. The legislature, by excluding double jeopardy from consideration by the court has placed the sole responsibility with the Director for ensuring that Crown appeals are only instituted in those circumstances which meet the criteria for such appeals. As we have said, the principles which lie at the heart of the double jeopardy rule continue to have operative force. Those principles are to be taken into account by the Director in determining whether it is truly in the public interest for an appeal to be brought. The filter has shifted from the court, to the Director, who must, in accordance with the Act, turn his mind to the considerations which lie at the heart of double jeopardy as part of the requirement that he have regard, when deciding whether to institute an appeal, to whether it is really in the public interest to do so.

[74]Ibid 650 [58]–[63], 651 [67]–[68] (citations omitted).

Recent authorities with respect to Crown appeals

More or less contemporaneously with, and subsequent to, Karazisis, there have been decisions of the High Court and this Court to which I should refer.

In Green v The Queen,[75] the High Court restated the effect of earlier authorities with respect to the primary purpose of Crown appeals. In their joint judgment, French CJ, Crennan and Kiefel JJ said this at [1]:

The primary purpose of appeals against sentence by the Attorney-General or Director of Public Prosecutions (‘Crown appeals’) under s 5D of the Criminal Appeal Act 1912 (NSW) is ‘to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons.’ That purpose distinguishes Crown appeals from appeals against severity of sentence by convicted persons, which are concerned with the correction of judicial error in particular cases. The Court of Criminal Appeal of New South Wales, in the exercise of its jurisdiction under s 5D, has a discretion to decline to interfere with a sentence even though the sentence is erroneously lenient. That discretion is sometimes called the ‘residual discretion’.[76]

And at [36]:
A primary consideration relevant to the exercise of the residual discretion is the purpose of Crown appeals under s 5D which, as observed earlier in these reasons, is ‘to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons.’ That is a limiting purpose. It does not extend to the general correction of errors made by sentencing judges. It provides a framework within which to assess the significance of factors relevant to the exercise of the discretion.[77]

[75](2011) 244 CLR 462.

[76]Ibid 465–6 [1] (citations omitted).

[77]Ibid 477 [36] (citations omitted).

As authority for the principle stated in [1] of their reasons, and repeated in [36], their Honours referred to the influential statement of Barwick CJ in Griffiths v The Queen,[78] to the passages in Everett v The Queen[79] which Charles JA cited in Clarke, and to the discussion of jurisprudence with respect to Crown appeals in Lacey v Attorney-General (Qld).[80] In essence, what was shortly stated in Green reflected earlier jurisprudence, which emphasised that Crown appeals should be a rarity, brought to establish a matter of principle.
[78](1977) 137 CLR 293, 310 (‘Griffiths’).
[79](1994) 181 CLR 295, 300 (Brennan, Deane, Dawson and Gaudron JJ) (‘Everett’).
[80](2011) 242 CLR 573, 578–84 [8]–[20] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

The New South Wales section which required consideration in Green did not include provisions akin to ss 289(2) and 290(3) of the Act. But that is beside the point. Green reaffirmed the principle that Crown appeals are to have a restricted focus, and are not intended to be no more than a Crown equivalent of an offender’s appeal.

In this State, in Director of Public Prosecutions v Nationwide Towing & Transport Pty Ltd, Warren CJ, with whom Nettle and Ashley JJA agreed, stated that the Director ‘was bound to be informed by the principles in Clarke and Bright’. [81] Her Honour had no need to develop that statement, but it certainly showed the continuing relevance of the rare and exceptional concept.
[81][2011] VSCA 291 [21] (citations omitted).

Next I should refer to Director of Public Prosecutions v Hardy, where Buchanan JA said this:

Counsel for the respondent contended that, in order for the appeal to succeed, the appellant was required to establish that the sentence revealed such manifest inadequacy or inconsistency in sentencing standards as to constitute error in principle. He submitted that the principle, that something more than manifest inadequacy was required for a Crown appeal to succeed, had survived the statutory abolition of double jeopardy. In my opinion, the submission flies in the face of the decision of this court in DPP v Karazisis. In that case it was held that s 289 eliminated double jeopardy when considering whether there had been sentencing error. The notion that Crown appeals should be ‘rare and exceptional’ no longer applies. [82]

[82][2011] VSCA 86 [17] (citations omitted) (‘Hardy’).

It is important to understand the precise nature of the submissions which were advanced for the respondent in that case and which his Honour rejected. It had been argued that the Director must establish, for an appeal to succeed, more than mere manifest inadequacy of sentence or inconsistency in sentencing standards. The submission naturally focused upon the role of the Court, not the role of the Director in instituting an appeal. In rejecting the submission, and saying that the notion that Crown appeals should be rare and exceptional no longer applied, Buchanan JA cited [120] in the joint judgment in Karazisis, which I have already set out. That paragraph clearly exposed the shifting roles of the Director on the one hand and the Court on the other. It did not suggest that the Director should not consider the rare and exceptional nature of a Crown appeal in deciding whether to institute an appeal.

The remarks of Neave JA in Hardy at [32], agreeing with Buchanan JA, carry the matter no further.

I should next refer to Director of Public Prosecutions v Hill, simply to note that the Court stated that:

In Karazisis, it was also held that, except to the extent that double jeopardy had been removed as a relevant consideration by s 290, the other constraints applicable to Crown appeals laid down in cases such as R v Clarke and DPP v Bright continued to apply.[83]

[83](2012) 223 A Crim R 285, 292 [24] (Neave, Osborn JJA and King AJA) (citations omitted).

Having then set out passages from the judgment of Charles JA in Clarke, the Court rejected a submission that the effect of Green was to further limit the purpose of Crown appeals against sentence, saying that ‘[n]othing in Green contradicts the approach taken by this Court in Karazisis’.[84]
[84]Ibid 293–4 [27].

Now I should briefly refer to Director of Public Prosecutions (Cth) v Couper.[85] Tate JA footnoted an observation that, because of the statutory abolition of double jeopardy, in a Crown appeal the Director is not required to satisfy a more demanding test to establish that a sentence is manifestly inadequate in contrast with a test that an offender must meet in order to establish that a sentence is manifestly excessive. In support of that statement, her Honour cited Karazisis and the remarks of Buchanan and Neave JJA in Hardy.[86] It will immediately be observed that what her Honour was addressing was the role of the Court in an appeal once instituted by the Director. It was not the antecedent question whether the Director was warranted in instituting that appeal. What her Honour said could not stand for the proposition that manifest inadequacy simpliciter is now sufficient to warrant the institution of an appeal by the Director.
[85](2013) 41 VR 128.
[86]Ibid 144 [94] n 18.

I should refer also to Director of Public Prosecutions v Oksuz.[87] On a Director’s appeal, the Court resentenced the respondent on a charge of attempting to pervert the course of justice, and made no change to sentences imposed at first instance on charges of reckless conduct endangering life, and blackmail. With orders for cumulation an increased total effective sentence was imposed.
[87](2015) 47 VR 731 (‘Oksuz’).

It is instructive that Redlich and Kyrou JJA, in separate reasons, variously described the sentence imposed on the charge of attempting to pervert the course of justice as being not simply manifestly inadequate, but ‘derisory’, ‘egregiously disproportionate to the respondent’s degree of criminality’ and as being ‘entirely out of proportion to the seriousness of the offence’ by reference to the maximum penalty and judicial pronouncements in other cases.[88] Characterisation of the sentence imposed at first instance in that language showed that the inadequacy of sentence was of the kind described by Charles JA in Clarke, and by Redlich JA in Bright. In those circumstances, there could be no suggestion that the appeal had not been brought in accordance with principle. Neither could the Director have failed to negate the exercise of the residual discretion. With respect to the residual discretion, I note further that its content and possible exercise was discussed by Kyrou JA at [165] to [178]. Of course, his Honour was not called upon to consider the problem which I have been discussing.
[88]See, eg, 733 [4], 753 [95]

Out of chronological order, I should next refer to Director of Public Prosecutions v Tewksbury (a pseudonym).[89] The respondent was sentenced on two charges of incest, four charges of committing an indecent act with a child under 16, one charge of producing child pornography (which was related to the commission of some of the sexual offences the subject of other charges), and one charge of possessing child pornography. The circumstances of the offending were unarguably very bad. On the plea of guilty, a total effective sentence of four years’ imprisonment with a non-parole period of two years and ten months was fixed. This Court concluded that the Director had made out a claim of manifest inadequacy of sentence. The Court’s reasons culminated with the statement that:

It follows that, in our opinion, the sentencing discretion seriously miscarried in the present case. The disconnect to which we have referred is so pronounced that it bespeaks of error in principle in the exercise of that discretion.[90]

[89][2018] VSCA 38 (‘Tewksbury’).

[90]Ibid [99].

In my opinion, it is clear, as counsel for the respondent submitted in answer to a question from the Bench, that what the Court was there saying was that the circumstances of that case were not ‘mere’ or ‘simple’ manifest inadequacy of sentence, but of inadequacy meeting the descriptions stated by Charles JA in Clarke and by Redlich JA in Bright.[91]
[91]See [84] above. See, more recently, to the same effect, DPP (Cth) v Walls [2014] VSCA 323 [20] (Neave, Whelan and Beach JJA) citing DPP v Chatterton [2014] VSCA 1 [83]–[85] (Weinberg, Whelan and Priest JJA).

Next, I should refer to Director of Public Prosecutions v O’Neill,[92] where this Court stated that:
[92](2015) 47 VR 395 (‘O’Neill’).

103.… First, as the judgments in Director of Public Prosecutions v Karazisis make clear, under the present statutory regime the notion that Crown appeals should only be rare and exceptional no longer applies.[93]
…
105.Third, the error must raise a matter of principle that needs to be addressed for the governance and guidance of sentencing courts, or in order to establish or maintain proper sentencing standards.[94] This is a limiting purpose which does not extend to the correction of sentencing errors relating only to the particular case.[95] The limiting purpose provides a framework within which to assess the significance of factors relevant to the exercise of the residual discretion whether the court should refuse to intervene.[96]
106.The specific errors, alleged in the grounds of appeal, do not possess the necessary qualities which would permit intervention on a Crown appeal. They raise no error of principle that needs be addressed for the governance and guidance of sentencing courts or in order to establish or maintain proper sentencing standards.
…
110.The limiting purpose of an appeal is that the ground is appropriate for the proper discharge of the court’s statutory function in establishing a matter of principle.[97] As Heydon JA said in R v Hernando[98] of s 5D of the NSW Criminal Appeal Act 1912, in a passage approved by French CJ and Gageler J in CMB v Attorney-General (NSW),[99] there are two hurdles that the Crown must surmount before the respondent can be sentenced more heavily:
‘The first is to locate an appellable error in the sentencing judge’s discretionary decision. The second is to negate any reason why the residual discretion of the Court of Criminal Appeal not to interfere should be exercised.[100]’

[93](2010) 31 VR 634, 661 [120] (Ashley, Redlich and Weinberg JJA with whom Warren CJ and Maxwell P agreed). Citation in original.

[94]Griffiths (1977) 137 CLR 293; Everett (1994) 181 CLR 295, 299; Clarke [1996] 2 VR 520, 522; R v TW (2011) ACTLR 18, 20–1 [6]; R v Meyboom [2012] ACTCA 48 [6]–[9]; R v Yuan [2015] NSWCCA 198 [30].

[95]Green (2011) 244 CLR 462, 477 [36] (French CJ, Crennan and Kiefel JJ).

[96]Ibid.

[97]CMB v A-G (NSW) (2015) 256 CLR 346, 316–17 [35] (French CJ and Gageler J); DPP v Gow (2015) 298 FLR 397, 399–400 [4] (Basten JA).

[98](2002) 135 A Crim R 451.

[99](2015) 256 CLR 346, 316 [34]. See also R v NT (2015) NSWCCA 136 [52].

[100]R v Hernando (2002) 136 A Crim R 451, 458 [12].

A number of points must be made in respect of the passages just cited.

First, the significant point being made at [105], [106] and [110] is that the residual discretion can have a part to play if the appeal does not in fact disclose an error in principle to which the Court should respond. Whilst the point was made in the context of addressing a complaint of specific error, there is no logical reason why it should be so confined.

Second, it is again necessary to appreciate that the authority cited in support of the first of the above passages was [120] in Karazisis. The passage referred, however, to only one part of the subject-matter of [120] in Karazisis.

Third, the second passage cited at [109] above in part relied upon Everett and Clarke and, in part, Green. The limiting purpose there described is one which, consistently with Karazisis, is to be considered by the Director before an appeal is instituted.

Fourth, and following on from what I have said at [111] above, O’Neill appears to offer a solution to the problem which I have identified. The difficulty is that the issue was touched upon, but was not fully ventilated, on the hearing of this appeal. Whilst it is for the Director to negate any reason why the residual discretion should not be exercised, at a practical level it was not submitted for the respondent that the residual discretion is engaged if the circumstances of the matter do not warrant the appeal being brought; and that this was here the situation. Maxwell P and McLeish JA, whose reasons I have had the advantage of reading in draft, do not share my opinion that what I consider to be a problem arose in a concrete way in this case. For that reason, what I would otherwise have suggested, that the parties be called upon to make further submissions, becomes beside the point.

In the circumstances, I should not offer a firm conclusion about the solution. I only say that, in my opinion, the soundness of the proposal in O’Neill that an appeal might be dismissed in the exercise of the residual discretion because the ground relied upon did not possess the necessary qualities which would permit intervention is underlined by the jurisprudence that, on a Crown appeal, it is for the Director to negate any reason why the residual discretion of the Court not to interfere should be exercised.[101] It is, I consider, difficult to conceive of a more persuasive reason for dismissing a Crown appeal in the exercise of the residual discretion than that, on proper analysis, it is apparent that the appeal was not brought in accordance with principle. This would be the more so if the consequence of the appeal being instituted would otherwise be that the offender’s sentence would be increased.
[101]See CMB v A-G (NSW) (2015) 256 CLR 346; Karazisis (2010) 31 VR 634; DPP v Zhuang (2015) 250 A Crim R 282, 298–300 [47]–[49] (Redlich, Priest and Beach JJA); Oksuz (2015) 47 VR 731, 781 (Kyrou JA); DPP (Cth) v Garside (2016) 50 VR 800, 823 [82] (Redlich and Beach JJA).

I should add this. It might be, in a particular case, that it would be appropriate for this Court, notwithstanding the dismissal of an appeal in the exercise of the residual discretion, to make a statement that the sentence under appeal was (manifestly) inadequate. This was a course which respondent’s counsel submitted would here be appropriate if the Court rejected the submission that no aspect of the sentence was manifestly inadequate. To dispose of an appeal in such a manner would on the one hand give any necessary guidance, whilst on the other hand reinforce the principle that a Director’s appeal is not the ‘mirror image’ or the ‘other side of the coin’ of a prisoner’s appeal.[102] There is, in my opinion, every reason why this Court should not slide into treating a Crown appeal in that way.
[102]DPP v Chatterton [2014] VSCA 1 [86] (Weinberg, Whelan and Priest JJA).

In all, the distinction drawn by the joint reasons in Karazisis between the role of the Director in determining whether to institute an appeal and the role of the Court in determining an appeal which has been instituted remains intact. This Court has understandably focused, when considering Director’s appeals, on the decreased opportunity to ensure that appeals continue to be informed by the limiting purpose of such appeals by reference to double jeopardy, both in deciding whether an appeal should succeed at all, and as well with respect to resentencing, rather than upon whether the Director should have instituted the appeal. But whenever an appeal is instituted which, at least as disclosed in argument, seeks no more than the correction of an individual sentence, the question arises, as I noted earlier, whether the Court is powerless to act. The Court might be satisfied, on the one hand, that a particular appeal on the ground of manifest inadequacy is no more than ‘the other side of the coin’ of an offender’s appeal on the ground of manifest excess; but, on the other hand, conclude that the sentence imposed was in fact manifestly inadequate, in which circumstances, as a matter of correction, an increased sentence ought be imposed. It would be incongruous, as I earlier observed, if the Court was put in the position of being obliged to impose a heavier sentence in an appeal the institution of which was unjustified. The same might obviously be the perception of an affected offender.

The present analysis is not assisted by speculation as to the working-out of a reservation expressed in the reasons of Kiefel CJ, Bell and Keane JJ in Director of Public Prosectuions v Dalgliesh(a pseudonym).[103] The reservation addressed the subject of Crown appeals generally. For completeness, I will say just a very little about the matter.
[103](2017) 349 ALR 37. That was an appeal from this Court’s decision in Dalgliesh [No 1] [2016] VSCA 148. On remitter from the High Court, this Court dealt with the matter in Dalgliesh [No 2] [2017] VSCA 360.

Having disposed of the appeal in a manner consonant with well-established principle,[104] their Honours then said this:

Accordingly, this case is not the occasion to reconsider the bases on which it has been said in the past that Crown appeals on sentence should be a ‘rarity’. In particular, this case does not require this Court to come to a concluded view of the reservations expressed by Gleeson CJ in Wong v The Queen as to the ongoing validity of the reasons previously given for treating Crown appeals on sentence as exceptional.[105]

[104]Dalgliesh [HCA] (2017) 349 ALR 37, 50 [60].

[105]Ibid [61] (citations omitted).

The reservation in the passage just cited dealt with the descriptor ‘rarity’.

It would be one thing to conclude that Crown appeals should no longer be described as a ‘rarity’. It might be said that the present statutory jurisdiction of (some) intermediate courts of appeal to give guideline judgments[106] bears upon rarity.[107]
[106]See, in Victoria, pt 2AA of the Sentencing Act 1991.
[107]In Victoria, there are other provisions which permit the Director to appeal in quite particular circumstances. This might bear upon rarity. See ss 257 and 260 of the Act; and, potentially, ss 290A and 290C of the Act, proposed to be inserted by cl 35 of the Justice Legislation Miscellaneous Amendment Bill 2018.

It would be another thing to conclude that the limiting purpose for which such appeals may be brought no longer applies. Neither the reservation, nor the passage in the reasons of Gleeson CJ in Wong v The Queen[108] which their Honours cited, appears plainly to foreshadow a change of the latter kind. Guideline judgments, I add, have a purpose which comfortably falls within the limiting purposes of Crown appeals as previously delineated.
[108](2001) 207 CLR 584, 592–3 [9]–[10]. Wong concerned the impact of guidelines developed by the Court of Criminal Appeal of New South Wales, and the impact, if any, of those guidelines on the sentencing disposition in the particular case.

The Director’s notice of appeal

The notice of appeal dated 4 October 2017, having set out the charges and the sentence imposed, said this:

TAKE NOTICE that I, ... Director of Public Prosecutions for the State of Victoria, pursuant to s 287 of the Criminal Procedure Act 2009-
(a)consider that there is an error in the sentence imposed and that a different sentence should be imposed; and
(b)am satisfied that an appeal should be brought in the public interest.

I now give you Notice of Appeal to the Court of Appeal in respect of the sentence passed upon you on 6 September 2017 in the County Court at Melbourne.
GROUNDS OF APPEAL
1. The sentence imposed is manifestly inadequate.
In sentencing the respondent, the learned sentencing Judge—
(a)Failed to give sufficient weight to the nature and objective gravity of the offending;
(b)Failed to have sufficient regard to the maximum penalty prescribed for the offences;
(c)Failed to give sufficient weight to the representative character of charges 1 to 3;
(d)Failed to have sufficient regard to current sentencing practices;
(e)Failed to give sufficient weight to the principles of general deterrence, just punishment and denunciation; and
(f)Gave too much weight to factors in mitigation including prospects of rehabilitation, remorse, a voluntary confession to some of the offending and an assessment of moral culpability.

Reliance on particular (f), I should immediately note, was abandoned on the oral hearing of the appeal.

It is immediately apparent that the ‘qualifying’ circumstances (a) and (b) referred to in the document are simply a recapitulation of s 287 of the Act, expressed in the first person. It is next apparent that the single ground of appeal is manifest inadequacy of sentence, in respect of which various matters of weight are particularised. On its face, the sole ground of appeal and the particulars thereof are neither more nor less than would be expected, to the converse effect, in an offender’s appeal.

In all, the notice of appeal casts no light upon what principled consideration or considerations lay behind the Director’s recapitulation of the language of s 287 of the Act.

The Director’s submissions on the hearing of the appeal

On the hearing of the appeal, in response to questions from the Bench, the Director submitted that:

in this matter the appeal is brought to maintain appropriate sentencing standards and to provide some guidance to — it’ll be County Court judges in terms of their approach to sentencing for incest …

And:
There is certainly less constraint now on Director’s appeals than there ever has been, but they will be assessed more broadly than simply looking at the sentence and indicating that the sentence is manifestly inadequate.

The Director also submitted that:

Just very briefly on the Crown appeal. It is now governed by the Criminal Procedure Act. Section 287 of the Criminal Procedure Act provides that the DPP may appeal to the Court of Appeal against a sentence imposed by an originating court if the DPP considers that there is an error in the sentence imposed and that a different sentence should be imposed and is satisfied that an appeal should be brought in the public interest.
So you’ve got your public interest considerations but in terms of error, it’s an error in the sentence imposed and that a different sentence should be imposed. It’s not restricted in the way that DPP appeals were restricted many, many years ago. Determination of Crown appeal, 289(1), ‘On an appeal under s 287, the Court of Appeal must allow the appeal if the DPP satisfies the Court, (a), there is an error in the sentence first imposed and (b), a different sentence should be imposed’ — so that’s the statutory framework.

The first of the three passages just cited was the only explanation by the Director as to why the appeal was instituted in conformity with principle.

The second and third passages, in my opinion, misstate the true position. The Director’s general power[109] to institute an appeal is neither more nor less expansive than ever it was. Indeed, the effect of Karazisis is that there is now an emphasised obligation upon the Director to ensure that an appeal is not instituted except on a basis consistent with long-established principle. The most that can be said is that, in the event that an appeal is instituted in accordance with principle, the ambit of the residual discretion is reduced because the Court is prohibited from taking the element of double jeopardy into account at two points in its consideration of the appeal.
[109]By contrast with a few discrete situations. See n 107.

Conclusiveness of the Director’s state of mind?

Each of s 287(a) and (b) requires the Director to hold a particular state of mind before appealing against a sentence. In neither instance is the state of mind qualified by a requirement that it be reasonably held. In neither instance is the Director required, by the legislation, to indicate the basis for the state of mind which is required. The question then arises, is it relevant that objectively, as revealed in the course of the hearing of an appeal, the circumstances are not such as to have justified its institution; and the further question, if that is so, then can the Court do anything about it?

In my opinion, the Director’s asserted state of mind with respect to the requirements of s 287 of the Act cannot itself be the subject of investigation on an appeal once instituted. On the other hand, if the Court is satisfied, on full consideration, that the appeal has not been brought in accordance with the limiting purpose which authorises a Crown appeal, O’Neill implies, and I respectfully agree on a provisional basis,[110] that this circumstance is relevant to the exercise of the residual discretion in a case where the Director contends for manifest inadequacy of sentence.[111] Thereby would be avoided the incongruity to which I referred at [77] and [117] above.
[110]In the absence of full argument.
[111]Remembering that O’Neill was referring, in the second, third and fourth passages cited at [109] above, to a complaint of specific error.

I should next say that in my view the question whether a particular appeal has been instituted in accordance with principle should not be answered simply by the Director’s invocation of a category of case referred to, for instance, in Clarke. The true question is not what label is used to justify institution of an appeal, but whether, on full consideration, the circumstances fit that label.

Why institution of the appeal did not accord with principle

As I have already noted, and it is convenient to set it out again, the Director gave this explanation why the appeal had been brought:

In this matter the appeal is brought to maintain appropriate sentencing standards and to provide some guidance to — it’ll be County Court judges in terms of their approach to sentencing for incest …

In essence, two submissions were advanced:

(1)that the appeal was brought to maintain sentencing standards; and
(2)so that this Court could provide guidance to County Court judges.

In each instance, the submission attached the explanation for bringing the appeal to the charge of incest. The Director said nothing in that submission about the charges of indecent assault and common assault. Yet the notice of appeal addressed the sentence in an omnibus way.

It is not difficult to see why the Director’s explanation attached to the charge of incest. As from 2000, the respondent’s conduct the subject of the indecent assault charges would have alleged breach of a different provision carrying a substantially larger maximum penalty. Justification for instituting an appeal so as to maintain sentencing standards and to provide guidance to County Court judges with respect to an offence which relevantly ceased to exist some 18 years ago would have lacked obvious merit. Further, there was not the slightest evidence that sentencing standards have not been established since 2000 for offending of the kind committed by the respondent in the context of the ‘new’ provision. Further again, in oral submissions the Director abandoned challenge to the sentence on the charge of common assault. It was not in dispute that the prosecutor had misled the judge below as to the maximum penalty applicable at the time when the offence was committed.

In my opinion, it would be wrong to conclude, for some reason not advanced by the Director, that the Director acted in accordance with principle in appealing against the sentences imposed on the charges of indecent assault and common assault. So, in my opinion, the problem which I have identified arose in a concrete way in respect of these aspects of the appeal.

I turn to the appeal against sentence imposed on the representative charge of incest.

As I have already said, I have had the advantage of reading in draft the joint reasons of Maxwell P and McLeish JA. Those reasons set out the circumstances of the offending, the offender and the impact of the offending upon the complainant. Subject to consideration of two circumstances relied upon in mitigation of sentence, I respectfully accept their Honours’ summation of the matter.

Maxwell P and McLeish JA have concluded that the circumstances of this case take it out of the category of ‘mere’ manifest inadequacy, on the footing that the appeal will assist in working out the principles in practice of the proper approach to sentencing for incest. They have also concluded that in those circumstances it would be highly artificial to exercise the residual discretion in respect of the indecent assault charges.

I respectfully disagree with the first of those conclusions, which has implications for the second of them.

Since the High Court allowed the Director’s appeal in Dalgliesh [HCA],[112] there have been a number of occasions upon which this Court, either on a prisoner’s application for leave to appeal or else on a Director’s appeal, has had occasion to consider sentences imposed for the offence of incest. I have identified McCray (a pseudonym) v The Queen,[113] Dalgliesh [No 2],[114] Thrussell (a pseudonym) v The Queen,[115] Tewksbury,[116] Carter (a pseudonym) v The Queen,[117] Grantley (a pseudonym) v The Queen,[118] and Phillips (a pseudonym) v The Queen.[119] Save for Dalgliesh [No 2] (dealt with on remitter from the High Court) and Tewksbury, each of those cases involved a prisoner’s appeal on a ground of manifest excess. Dalgliesh [No 2] and Tewksbury were Director’s appeals on a ground of manifest inadequacy.
[112](2017) 349 ALR 37.
[113][2017] VSCA 340.
[114][2017] VSCA 360.
[115][2017] VSCA 386 (‘Thrussell’).
[116][2018] VSCA 38.
[117][2018] VSCA 88.
[118][2018] VSCA 112 (‘Grantley’).
[119][2018] VSCA 114 (‘Phillips’).

Each of the decisions noted above involved, as is always the case, its own individual and intricate features. They are the raw material for the instinctive synthesis which results in the sentence imposed in the particular case. For that reason, leapfrogging from one individual set of circumstances to another is unlikely to be a useful exercise in determining whether a sentence which is complained of is either manifestly excessive or manifestly inadequate.

What can be said, however, is that, despite the different perspectives of appeals on the grounds of manifest excess and manifest inadequacy, for the reasons explained in Dalgliesh [No 1],[120] as at 2016 sentences for the offence of incest were generally too low; and that, subsequent to the decision of the High Court in Dalgliesh [HCA], depending upon the entire circumstances of the particular case, individual sentences of imprisonment for incest of five years (McCray), five years and six years (Phillips), six years (Thrussell and Carter), and five years and six months and six years and six months (Grantley) have been held either not to be manifestly excessive, or else have not been challenged; whilst, on Director’s appeals, increased sentences on individual counts of incest of five years and six months (Tewksbury) and seven years and six months (Dalgliesh [No 2]) have been imposed.
[120][2016] VSCA 148.

It appears to me, with respect, that there have been plenty enough decisions of this Court since Dalgliesh [HCA] was decided in the High Court to inform the judges who must sentence offenders for incest that the scale of sentences has increased; and to indicate, by reference to the spread of sentences which have either been held to be not manifestly excessive, or which have been substituted, the broad parameters within which sentences should be likely to fall. There must come a point, if the limiting purpose of Crown appeals is not in practice ignored, when recourse to the justification of working out the practical application of sentencing for a particular kind of offence itself becomes unjustified.

For that reason alone, I do not accept, whatever might have been the situation when this appeal was instituted, that when it was heard there was any remaining need to provide guidance to County Court judges in terms of their approach to sentencing for incest.

Further, in my opinion, no question properly arose in this appeal, as the circumstances were exposed in this Court, of maintaining appropriate sentencing standards. That is so for two reasons.

First, I consider that it would be wrong to treat that label as justifying intervention by this Court when, in my opinion, the substantial point of the appeal was about ‘correcting’ an individual sentence.

Second, I consider that this matter was singularly unsuitable as a vehicle for maintaining appropriate sentencing standards.

Every sentence is, as I have said, the product of an instinctive synthesis which looks to all the circumstances of the offending, the offender, and, in accordance with Division 1C of Part 3 of the Sentencing Act 1991, the impact of the offending upon, particularly, its victim. Instinctive synthesis is incompatible with so-called ‘two stage’ sentencing. In the present case, to be brought to account in the synthesis, in addition to (1) the circumstances of the offending, which were objectively grave; (2) the personal circumstances of the offender generally; and (3), the impact of the offending upon the complainant, were two particular circumstances alleged in mitigation, one of which rarely arises and the other of which was a matter of substance when it will rarely have that character. When those circumstances were factored into the overall synthesis, I think that a sentence was apt to be produced which departed significantly from the parameters indicated by the range of decisions in late 2017 and this year. Moreover, they were such as to make this matter unsuitable as a vehicle for maintaining appropriate sentencing standards.

The first of the circumstances is that the respondent initiated police investigation by going to the police, 30 years after the offending had ended, he then being a man in his late 60s, to reveal some — though not all — of his offending. Whether his offending would otherwise have come to the attention of the police is uncertain. The sentencing judge correctly described this as a circumstance of mitigation, although he qualified its mitigatory impact to reflect the fact that the respondent did not reveal the full extent of his offending. Even so, the respondent admitted to repeat offending other than with respect to penile/vaginal penetration.

The second circumstance is the fact, as the judge accepted was the case, that the respondent himself had been subject to sexual abuse in childhood; to which was added the death of his own daughter when young, and the emergence of the complainant as, colloquially, ‘the daughter he never really had’.

It is not uncommon in this Court to learn that a sexual abuser has himself or herself suffered sexual abuse as a child. Often enough, the fact that an offender was himself or herself subjected to sexual abuse as a child is treated as an explanation, but not as an excuse, for the subsequent offending. It has been recognised, however, that in some cases childhood sexual abuse may reduce the offender’s moral culpability.

When interviewed by Ms Carla Lechner, a clinical psychiatrist, on four occasions in 2017, the respondent provided a history that he had been brought up in a home that was emotionally cold and in which his father was physically abusive. He then graphically described other circumstances of his childhood. As recorded by Ms Lechner,[121] they were as follows:

Mr [Walsh] stated that he developed a relationship with the neighbours – Gwen and Harry – whilst living in Snobb’s Creek. She was aged in her thirties and he was in his sixties. Gwen and Harry would ‘keep an eye on us’ when his parents were out at religious meetings. Mr [Walsh] stated that he spent a lot of time at the neighbours and regarded Harry as more of a father than his own. When aged about 11 years, ‘one day I walked in and Gwen was naked in the kitchen … she asked me if I wanted to touch her and I felt obliged to … by grade five she asked if I’d like to put myself inside her’. Thereafter they developed a sexual relationship and he would regularly engage in both oral sexual relationships and intercourse. This mostly occurred at the neighbour’s home but also in Gwen’s car. Mr [Walsh] stated that it was of paramount importance to Gwen that she achieve orgasm through oral stimulation and he would do his best to please her. If she did not achieve orgasm he would be spurned or humiliated (on one occasion Gwen apparently stated that the cat could do a better job). Mr [Walsh] stated that Harry became involved in watching their sexual contact. He does not recall Harry as being overtly aroused; he did not participate but would make suggestions regarding positions. He also wanted Mr [Walsh] to anally penetrate his wife (which he did) and made suggestions about Mr [Walsh] bringing along his friends to also participate. Mr [Walsh’s] sexual contact with Gwen continued for some years. He found that she also provided him with his main source of affection (although the affection would be withheld if he did not sexually satisfy her). Mr [Walsh] stated that when Gwen and Harry attended a scout’s camp and made suggestions to other boys, their overtures were disclosed, they were charged and left town. Mr [Walsh] stated that he felt confused at the abrupt end of their relationship. He also developed symptoms of depressed mood such as sleep disturbance, lack of motivation and social withdrawal, as well as experiencing intense anger. Following the scout camp ‘scandal’, Mr [Walsh] partially disclosed the abuse to his mother, who advised him to ‘try and see the good in his life and overlook the bad’.
During this same period, Mr [Walsh] was intermittently sexually abused by a maternal uncle – Bert – (the uncle of his mother). Bert would visit about twice a year and stay in the bungalow with [Mr Walsh]. He required Mr [Walsh] to perform both oral and anal intercourse. Although no overt duress was applied, Mr [Walsh] was acutely aware that his mother looked forward to these visits as Bert would take her to town and ‘spoil’ her. Later he learnt that his mother was also sexually abused by both uncle Bert and her own father. Mr [Walsh] did not disclose this abuse to his mother. These experiences of abuse during his pubescent period appear to have deeply affected Mr [Walsh’s] sexual development and have a bearing on his offending behaviour, particularly his understanding about normal sexual behaviour.

[121]Report, 30 April 2017.

Ms Lechner gave evidence orally in addition to providing a report. In her opinion, the respondent only came to the realisation that he had been a victim of what had occurred in his childhood in discussion with her. She also expressed the opinion that the respondent was only now developing insight into the impact of his behaviour upon the complainant.

The witness opined in her report that:

It would appear that his own experiences of abuse ‘primed’ him for becoming a perpetrator in a number of ways. Firstly, he was exposed to sexual activity at a young age and therefore considered this to be normal, particularly as the sexual activity was enjoyable and he perceived himself to be a willing participant. It is likely, given his age and the protracted nature of the abuse that this had some bearing on his neurological development. Secondly, the link between providing sexual gratification and being shown affection was very much a part of his experience and again, for him, became normative. Thirdly, the loss of his daughter Kathryn and attendant feelings of both loss and guilt, also ‘primed’ him to view the victim as a ‘replacement’ daughter. It is unclear why it turned into a sexual love however, the ‘special bond’ that he wanted to share with her, in his mind, involved sexual conduct. His need for love and affection and ‘a special bond’ overrode the moral implications of his behaviour and allowed him to rationalize his behaviour as fulfilling her needs not his. The fact that he thought about a marriage proposal in her adult years lends support to the notion that he was fixated on, and infatuated with her well into her adult life.

The judge made these findings in the present connection:

I do accept, as a matter of probability, that as stated to Ms Lechner, you were sexually abused as a child by the neighbours from about the age of 11 for some years and also by a maternal uncle who required you to perform both oral and anal intercourse. Furthermore, I also accept the history that you gave Ms Lechner that you were raised by extremely religious and emotionally cold parents and effectively did not have a childhood, as you rarely played and was expected to do the work of man from an early age. Your father was physically abusive towards and you and your siblings.
I also accept the opinion of Ms Lechner that your experiences of sexual abuse ‘primed’ you to become a perpetrator of sexual abuse. I also accept that the loss of your daughter and attendant feelings of both loss and guilt also ‘primed’ you to view the complainant as a replacement daughter.
I do refer to R v AWF [2000] VSCA 172, wherein Ormiston JA stated at [4]:
‘There is in fact very little authority upon the significance of childhood sexual abuse as a factor in sentencing. At the least the consensus of views expressed by judges is to the effect that such evidence is relevant, but its relevance and persuasiveness will vary greatly from case to case, especially where the charges are of the most serious kind. A recent summary of authorities appeared in the unreported decision of R v Anthony George Reid [citation omitted] in which a number of unreported New South Wales cases were referred to. So in a case of both sexual assault and murder Hunt, CJ at CL said in R v Lett [citation omitted]:
“The link no doubt helps to explain why the offender committed the offence, but it could hardly be said to excuse it. Minds may well differ as to whether such a history should mitigate the offence of child sexual abuse committed by the offender, but I am quite unable to see how it could possibly mitigate the offence of murder ... .”

Later in R v Balfour [citation omitted] the Court there held in the circumstances that it was unable to conclude that the sentencing judge had made an error by failing to extend leniency to the applicant because of childhood sexual molestation. On the other hand in R v AB Sperling, J. (with whom Gleeson, CJ agreed) said [citation omitted] that sexual molestation by teachers during an applicant's adolescence was a circumstance favourable to the applicant. So in Reid James, J. (with whom Mason P and Grove J concurred) said:
“In my opinion, if it is established that a child sexual assault offender was himself sexually abused as a child and that that history of sexual abuse has contributed to the offender's own criminality, that is a matter which can be taken into account by a sentencing judge as a factor in mitigation of penalty as reducing the offender's moral culpability for his acts, although the weight which should be given to it will depend very much on the facts of the individual case and will be subject to a wide discretion in the sentencing judge.”’

Ormiston J noted that such evidence is clearly relevant where there is no dispute to the existence of the abuse and there is some expert evidence which would connect that abuse with the offender’s subsequent behaviour.
In all the circumstances, I am so satisfied there is a connection between your experience of being sexually molested as a child and the perpetration of the subject offences. I do accept that consistent with the principles in R v AWF, such finding ameliorates to some extent your moral culpability in respect of the offending and accordingly, is relevant in determining an appropriate sentence.[122]

[122]Reasons [67]–[71].

In argument in this Court, there was this exchange between the Bench and senior counsel for the respondent:

JUDGE: But how does that help us? Your client clearly knew better, didn’t he?
COUNSEL: He did know better but - - -
JUDGE: He knew it was wrong.
COUNSEL: He, yes and - - -
JUDGE: So why does this make him less culpable if he knows that touching her is wrong - - -
COUNSEL: Because - - -
JUDGE: - - - then he’s as blameworthy as any other father who touches his daughter isn’t he?
COUNSEL: Because what has happened is he has by reason of his own experiences which were not fleshed out by the way, for the first time, when he spoke to Lechner because it’s within the second record of interview in some detail toward the end of the interview. She explains how it is that ‘Therefore considered this to be normal’ – I’m just picking out a phrase within that quote.
JUDGE: Yes but if he knows it’s wrong, he knows it’s not normal.

With respect, I do not think that the question of moral culpability was a simple one in this case. This can be illustrated by reference to the respondent’s two records of interview with the police, the first interview being held on 22 June 2015 and the second on 3 February 2016.

On the first occasion, asked about the appropriateness or legality of his behaviour, the respondent said that he ‘frankly disliked’ it.

Again, asked at the time whether he knew that what he was doing was wrong, he said, ‘[y]es, a hundred per cent’.

But then, in his later interview, the respondent, whilst accepting that he understood that what he was doing was legally wrong, said ‘I should have had the foresight and the knowledge to withdraw from that situation. … But it was normal to me because of experiences I’ve gone through in my own life. As a child, I was in a position for quite a considerable amount of my childhood where I assisted people to have orgasms. And because of it, I didn’t find it confronting’; and ‘I’m not trying to put myself in a position where I’m finding an excuse. … But when [the complainant] started having orgasms on me, I didn’t — I wasn’t confronted by it. I — it seemed like a normal part of life’.

Further, having said something about his childhood experiences, the respondent commented that he had no more options anymore because ‘[a]ll those people are dead’. He said also that he had ‘been living with it for 55 years’.

He concluded by saying, with respect to his offending, that ‘it clouded my judgment’. He was evidently referring to his childhood experiences.

Then there are the circumstances in which the respondent ceased offending. He became aware that the complainant was having sexual contact with a boy or boys her own age at school. It was at that time that he terminated his entirely misguided idea and intention of giving the complainant pleasure by what he did. Indeed, it seems that he and the complainant had a discussion about the matter at the time.

It appears to me that in this very unusual case the judge was well entitled to conclude that the circumstances of the abuse inflicted upon the respondent as a child moderated, to an extent, his moral culpability for the offending which he inflicted upon the complainant. His Honour did not over-emphasise the mitigatory effect of those circumstances. If anything, I consider that he understated that effect.

In the event, with respect to the sentence imposed on the charge of incest, I consider, as I have said, that there was no principled reason for this appeal being brought by the Director.

What must be done?

If I could confidently conclude, in the circumstances which I have described, that the residual discretion could be invoked to dismiss the appeal, I would do so without hesitation. But, as I have explained, I could not so conclude without hearing full argument. In the event, it appears that I have no option but to consider the appeal on the footing (which I have rejected) that it was brought in accordance with principle.

So considered, I am satisfied that the head sentences on the two charges of indecent assault and the charge of incest were manifestly inadequate. I do not consider, to complete the picture, that the sentence on the charge of incest was egregiously so.

As in every case, the search for the sentence which should be imposed on a charge of incest involves consideration of incommensurables. The judge’s sentencing remarks were, in my respectful opinion, a model analysis of the law and the facts. I have been very reluctant to conclude that the sentence which he imposed fell outside the sound exercise of the sentencing discretion. That is particularly so when regard is had to the two particular circumstances of mitigation to which I have referred. On the other hand, the sentence was low by the current trend of decisions. Further, it may be supposed that the judge would have imposed a higher sentence had he known that the concept of incremental increase in sentences would no longer be part of the sentencing landscape. In the event, I would substitute a sentence of five years and six months imprisonment on the charge of incest. This contrasts with the conclusion of Maxwell P and McLeish JA that a sentence of six years imprisonment should be substituted on that charge.

Maxwell P and McLeish JA propose the substitution of sentences of two years imprisonment on each of the charges of indecent assault. This was bad offending, and despite the weight of circumstances of mitigation, I do not disagree.

Their Honours propose that there be cumulation of six months of the sentence on charge 1 and nine months of the sentence on charge 3 on the base sentence on the charge of incest. Again, on the assumption which I feel obliged to make, I do not disagree.

To those orders for cumulation must be added cumulation of one month of the sentence on the charge of common assault.

In the event, and although it is just a footnote to history, I would impose a total effective sentence of six years and ten months imprisonment.

Maxwell P and McLeish JA consider that the non-parole period should be about 68 per cent of the total effective sentence. Although, again, my opinion is of no consequence, I consider that the entire circumstances of the matter, including the particular circumstances of mitigation, tend much more favourably for the respondent. The judge imposed a non-parole period of less than 60 per cent. I think that he was right to do so. I would impose a non-parole period of four years imprisonment.

Orders

In the circumstances which I have described, the appeal must be allowed. I would re-sentence the respondent as outlined at [171]–[176] above.

Charge	Offence	Maximum	Sentence	Cumulation
1	Indecent assault[14]	5y	1y	4m
2	Incest[15]	20y	4y	Base sentence
3	Indecent assault	5y	1y	7m
4	Common assault	2y[16]	2m	1m
Total Effective Sentence:		5y
Non-Parole Period:		2y 10m
Section 6AAA Statement:		7y

[2018] VSCA 172

17 July 2018