DPP v West
[2017] VSCA 20
•21 February 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2016 0104
| DIRECTOR OF PUBLIC PROSECUTIONS | Appellant |
| v | |
| ANDREW JOHN WEST[1] | Respondent |
[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the respondent.
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| JUDGES: | REDLICH, BEACH and McLEISH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 13 February 2017 |
| DATE OF JUDGMENT: | 21 February 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 20 |
| JUDGMENT APPEALED FROM: | DPP v West (a pseudonym) (Unreported, County Court of Victoria, Judge Allen, 6 May 2016) |
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CRIMINAL LAW – Appeal – Sentence – Indecent act with child under age of 16 (8 counts), sexual penetration of child under 16 (3 counts) – Conviction following trial – Total effective sentence of 5 years and 6 months’ imprisonment, 3 years non-parole – Whether sentence manifestly inadequate – Sentence wholly failed to reflect need for denunciation, punishment, general and specific deterrence and protection of community – Offending warranted substantially higher individual sentences and orders for cumulation – Appeal allowed – Resentenced to total effective sentence of 7 years and 6 months’ imprisonment, 5 years non-parole.
CRIMINAL LAW – Appeal – Sentence – Proportionality and totality – Whether principles of proportionality and totality permit reduction of individual sentences – Director of Public Prosecutions v Grabovac [1998] 1 VR 664, applied.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellants | Mr B L Sonnet | Mr J Cain, Solicitor for Public Prosecutions |
| For the Respondent | Mr D A Dann QC with Mr J D Kantor | Mike Wardell |
REDLICH JA
BEACH JA
McLEISH JA:
Following a trial in the County Court, the respondent was convicted on eight counts of indecent acts with a child under the age of 16 and three counts of sexual penetration of a child under the age of 16. He was acquitted by the jury on two further charges.
The judge sentenced the respondent as follows:
| Charge | Offence | Maximum | Sentence | Cumulation |
| 1 | Indecent act with a child under the age of 16 | 10 years | 6 months’ imprisonment | 1 month |
| 2 | Indecent act with a child under the age of 16 | 10 years | 9 months’ imprisonment | 2 months |
| 3 | Indecent act with a child under the age of 16 | 10 years | 9 months’ imprisonment | 1 month |
| 4 | Indecent act with a child under the age of 16 | 10 years | 8 months’ imprisonment | 2 month |
| 5 | Indecent act with a child under the age of 16 | 10 years | Not guilty | N/A |
| 6 | Indecent act with a child under the age of 16 | 10 years | 8 months’ imprisonment | 1 month |
| 7 | Indecent act with a child under the age of 16 | 10 years | 6 months’ imprisonment | 1 month |
| 8 | Indecent act with a child under the age of 16 | 10 years | 6 months’ imprisonment | 1 month |
| 9 | Sexual penetration of a child under the age of 16 | 25 years | 39 months’ imprisonment | Base |
| 10 | Sexual penetration of a child under the age of 16 | 25 years | 30 months’ imprisonment | 6 months |
| 11 | Sexual penetration of a child under the age of 16 | 25 years | 36 months’ imprisonment | 9 months |
| 12 | Sexual penetration of a child under the age of 16 | 25 years | Not guilty | N/A |
| 13 | Indecent act with a child under the age of 16 | 10 years | 9 months’ imprisonment | 3 months |
| Total Effective Sentence: | 5 years and 6 months’ imprisonment | |||
| Non-Parole Period: | 3 years | |||
| Pre-Sentence Detention Declared: | 95 days | |||
| 6AAA Statement: | N/A | |||
| Other orders: | Forensic sample order pursuant to Crimes Act 1958 s 464ZF. Reporting period of life pursuant to Sex Offenders Registration Act 2004 s 34. Sentenced as a serious sexual offender on charges 3, 4, 6, 7, 8, 9, 10, 11 and 13. | |||
The Director of Public Prosecutions appeals against the sentence under s 287 of the Criminal Procedure Act 2009 on the ground that it is manifestly inadequate.
The circumstances of the offending
The respondent was aged between 43 and 44 at the time the offending took place. The complainant was aged between seven and eight. The complainant is the daughter of the respondent’s former partner.
The respondent and the complainant’s mother were in a relationship for approximately seven years. They have two children together, but they never resided together. At times, the respondent cared for the complainant. She would occasionally sleep over at his place of residence.
The offending took place between 1 June 2013 and 20 October 2014.
The conduct constituting charge 1 occurred when the respondent was at the complainant’s home. The complainant was in her bed, sleeping. The respondent touched her vagina with his finger. He told her afterward that it was a secret to keep between them and that he would get into big trouble if she told anyone.[2]
[2]The prosecution opening on the plea stated that the respondent told the complainant to keep it a secret because she (the complainant) would be in trouble if she told anyone. It is clear from the VARE transcript that the complainant’s evidence was that the respondent was concerned that he would get into trouble.
Charges 2 and 3 involved another occasion when the respondent was caring for the children at the complainant’s house. The complainant and her younger brother, who was the child of the respondent and the complainant’s mother, were with the respondent in the lounge room. The respondent told the complainant’s younger brother to pull the complainant towards him, which he did. The respondent grabbed the complainant’s arm and laid her on her stomach on the couch. He lay on top of her. He then licked his finger and put it on her vagina and anus. The complainant’s twin brother witnessed this from another room.[3] In his VARE, he stated that he saw the respondent lick his finger and put it ‘in her rude spot’ and then wipe his finger on himself afterwards. The complainant and her twin brother spoke about the incident the following day.
[3]Although there was evidence that the complainant’s younger brother was present, the Director accepted that the respondent was not sentenced on the basis that this child had witnessed the offending. The Director also accepted that the respondent was not sentenced on the basis that he was aware that the complainant’s twin brother was able to view the offending.
On another occasion, the complainant was at the respondent’s unit in his lounge room. The respondent licked his finger, put it on the complainant’s anus and said ‘do you like it?’. The complainant replied ‘no’ and the respondent pushed harder. The complainant stated that this hurt. This was charge 4.
Charge 6 occurred when the complainant was vacuuming her bedroom. The respondent came into the room and turned off the vacuum cleaner. He stretched out her pants and licked his finger before touching the complainant on her anus. He asked ‘do you like it?’. The complainant replied ‘yes’, because she thought that if she said ‘no’ the respondent would push his finger in harder.
On another occasion, the complainant’s mother was in the shower with the complainant’s brother. The complainant was in her bed, lying on her side. The respondent came into her bedroom, licked his finger, stretched out her pants and touched her on the vagina (charge 7) and anus (charge 8).
Charges 9 and 10 took place on another occasion when the complainant was in her room with the respondent. He picked her up and stood her on the bed, licked his finger and put it in her vagina (charge 9) before turning her around and putting his finger in her anus (charge 10). The complainant stated that this hurt a lot. The respondent then went into the toilet and washed his hands.
Charge 11 involved an occasion where the complainant was sleeping at the respondent’s flat and slept in his bed with him. The respondent was only wearing underpants in bed. He put the complainant on his stomach so that her legs were either side of him and facing him. He lifted the complainant and touched her on the vagina. He twirled his finger around and his finger went into her vagina. While doing this he repeatedly asked ‘do you like it?’. He then put the complainant back onto the bed and went to sleep.
Charge 13 occurred in the respondent’s lounge room. He told the complainant to squat down. He unzipped his pants and pulled the complainant’s pants down. He then rubbed his penis between the complainant’s buttock cheeks.
Plea submissions
At the plea hearing, counsel for the respondent noted that he had no prior convictions and that this was his first time in custody. The respondent had worked consistently since leaving school in year 11, mainly as a mechanic, until he suffered a serious wrist injury in 2006. He had not worked since 2006. As a result of the wrist injury, he suffered tenosynovitis of the right wrist and had very limited ability to use his wrist. He also suffered from spinal canal stenosis, a back condition for which he found it difficult to obtain proper medical attention while in prison. This condition necessitated the use of a walking stick and made it difficult for the respondent to participate in prison activities.
The respondent had good relationships with his parents growing up and was never subject to any abuse or trauma. The respondent’s father died from leukaemia in 2010. The respondent was estranged from his brother, who lived in the United States. The respondent’s mother and sister were present in court to support him.
The respondent had not seen his children[4] since the allegations had come to light. This had caused him distress and was not likely to change.
[4]The respondent had five children: two with the complainant’s mother and three from two other relationships.
There was evidence that the respondent suffered severe depression and anxiety following his interview with police in 2015. For a period of time after that episode, he required almost full-time care. As a consequence, his sister had authority with respect to his legal, financial and medical affairs.
One of the medical reports provided to the sentencing judge stated that the respondent would be ‘somewhat mentally vulnerable’ in custody. The report suggested that a further assessment could be conducted if the respondent were to complete a sex offender course while in custody.
It was submitted that the respondent was of prior good character. In support of this submission, evidence was tendered of his volunteer work, which included regular work for the State Emergency Service.
The respondent submitted that, without negating the gravity of the offending, there were more serious instances of this type of offending. Examples included cases involving multiple complainants, severe accompanying violence and the use of weapons. There was no violence or threat of violence in the present case. Nor did the offending take place over a ‘lengthy duration’.
The prosecutor submitted that the offending was very serious and ‘high end’, and it entailed a significant breach of trust, in that the respondent was a parental figure. That position, and the trust associated with it, created the opportunity to offend. Moreover, the offending involved a level of brazenness. The respondent, who maintained his innocence, showed no remorse for or acceptance of the offending. For that reason, his prospects of rehabilitation were diminished. The prosecutor also tendered victim impact statements from the complainant and her mother.
The prosecutor submitted that the offending was repeated and took place over a significant duration of time. The complainant was very young, and was warned not to tell anyone what had transpired. While it was conceded that the respondent’s medical issues were to be taken into account to a limited degree, they could not reduce his moral culpability.
Sentencing remarks
The sentencing judge noted that the respondent was in a position of trust in relation to the complainant.[5] He stated that the conduct was a serious example of this kind of offending, the gravity of which was aggravated by several matters, including the duration of the offending, the complainant’s very young age, the offending taking place often while the complainant was in the respondent’s care, and the fact that the respondent told the complainant to keep the offending secret lest he get into trouble.[6] The offending constituted ‘appalling behaviour’.[7]
[5]DPP v West (a pseudonym) (Unreported, County Court of Victoria, Judge Allen, 6 May 2016) [2] (‘Reasons’).
[6]Ibid [11].
[7]Ibid [10].
The judge noted that sexual offences against children are extremely serious as the complainants are necessarily vulnerable and dependent upon adults.[8] The offending in this case was a ‘serious betrayal of trust’.[9] While the respondent may well have had good prospects of rehabilitation, those of the complainant were unknown.[10]
[8]Ibid [12].
[9]Ibid.
[10]Ibid.
The judge referred to several sentencing considerations, including the need for just punishment, denunciation and general deterrence,[11] the objective and relative gravity of the offending and the principles of proportionality and totality.[12] In that regard, the judge stated that taking account of the principles of proportionality and totality ‘often results in individual sentences being seemingly inadequate, compared to the objective gravity of the particular offence in isolation’.[13]
[11]Ibid.
[12]Ibid [13].
[13]Ibid.
The judge took into account that this was the respondent’s first custodial sentence and that it would involve unusual hardship (albeit it was not an ‘overwhelming factor’) due to the respondent’s medical issues.[14] He declared that the respondent was to be sentenced as a serious sexual offender on charges 3–4, 6–11 and 13.[15]
[14]Ibid.
[15]Ibid [22].
After outlining the respondent’s background and his physical and mental illnesses as described above,[16] the judge noted evidence from a psychiatrist that his risk of re-offending was ‘low to moderate’. The judge also noted that the respondent maintained his innocence, which meant that the psychiatrist found it impossible to assess his level of insight into the offending.[17]
[16]Ibid [15]–[17].
[17]Ibid [18].
The arguments on appeal
The Director particularises the ground of manifest inadequacy as follows:
The sentence reflects that the learned sentencing judge:
(a)in setting the total effective sentence, individual sentences and non‑parole period, failed to give sufficient weight to the sentencing principles of protection of the community, just punishment, denunciation, general deterrence and specific deterrence;
(b)failed to properly reflect the gravity of the offending;
(c)failed to have sufficient regard to the impact of the offence upon the victim and her mother;
(d)failed to have sufficient regard to the maximum penalties for the offences;
(e)gave too much weight to mitigating factors concerning the offender;
(f)made orders for concurrency and cumulation in respect of all the individual sentences imposed that, in combination with the fact that the individual sentences are objectively low, resulted in a total effective sentence and non-parole period that are manifestly inadequate in all the circumstances;
(g)made orders for concurrency and cumulation that fail to reflect that the respondent was to be sentenced as a ‘serious sexual offender’ on charges 3, 4, 6, 7, 8, 9, 10, 11 and 13.
The sentence was said by the Director wholly to fail to reflect the judge’s findings that the offending constituted ‘appalling behaviour’ and was ‘serious conduct of this kind’, or to meet relevant sentencing objectives. The Director submitted that the individual sentences were impermissibly low to the point of being ‘derisory’ and that the orders for cumulation were plainly inadequate. The objective gravity of the offending was demonstrated by the complainant’s young age, the prolonged duration of the offending, the fact it involved a gross breach of trust, that the respondent told the complainant that what occurred was to be kept secret, that the offending comprising charges 2 and 3 took place in the sight of the complainant’s twin brother, that in respect of charge 4 the respondent continued to offend after the complainant told him that she did not like what he was doing, and the fact that the respondent was a serious sexual offender for the purposes of sentencing on charges 3–4, 6–11 and 13. In his written submissions the Director referred to the need for ‘condign punishment’ in cases involving sexual offending against children.[18]
[18]See, eg, R v Ware [1997] 1 VR 647, 653 (Hedigan AJA; Winneke P and Hayne JA agreeing); DPP v CPD (2009) 22 VR 533, 546–7 [54]–[56] (Maxwell P, Redlich JA and Robson AJA); Sutton (a pseudonym) v The Queen [2015] VSCA 251 [25]–[28] (Maxwell P and Redlich JA).
In oral argument, the Director submitted that the sentencing judge had made no reference to a number of important sentencing considerations, including the fact that community protection was the principal purpose for which the respondent was to be sentenced in respect of charges 3–4, 6–11 and 13.[19] Nor was there any reference to specific deterrence or the respondent’s lack of remorse, which were weighty considerations in light of the respondent’s maintaining of his innocence. The judge had also not referred to the maximum penalties applicable for the offending.
[19]See Sentencing Act 1991 s 6D.
The Director submitted, while acknowledging that specific error was not alleged, that the judge had erred in moderating the individual sentences in order to reflect the principles of totality and proportionality.
The Director referred to sentencing statistics produced by the Sentencing Advisory Council in respect of the offences with which the respondent was charged.[20] While recognising the caution with which ‘comparable cases’ must be treated,[21] the Director contended that, having regard to the sentences that had been passed on offending of the kind that the respondent had committed, and in particular the fact that many cases of that kind were resolved by way of guilty pleas, the sentence passed on the respondent was shown to be manifestly inadequate. The Director also referred to four cases that were said to provide ‘a general guide or impression as to the appropriate range of sentences’[22]: Roper v The Queen,[23] R v XB,[24] R v JMA[25] and Director of Public Prosecutions v Watts.[26]
[20]Sentencing Advisory Council, Sentencing Trends in the Higher Courts of Victoria 2009–10 to 2013–14: Indecent Act with a Child under 16, Sentencing Snapshot No 178 (2015); Sentencing Advisory Council, Sentencing Trends in the Higher Courts of Victoria 2009–10 to 2013–14: Sexual Penetration with a Child Aged under 12, Sentencing Snapshot No 180 (2015).
[21]See, eg, R v Pham (2015) 325 ALR 400, 405–6 [26]–[28] (French CJ, Keane and Nettle JJ), 410–11 [49]–[50] (Bell and Gageler JJ).
[22]Hudson v The Queen (2010) 30 VR 610, 617 [29] (Ashley, Redlich and Harper JJA).
[23][2016] VSCA 52.
[24][2009] VSCA 51.
[25][2007] VSCA 105.
[26][2014] VCC 382.
The respondent submitted that the sentencing judge had taken account of all matters relevant to the sentencing exercise. While the judge did not refer specifically to community protection as the principal object in respect of charges 3–4, 6–11 and 13, he accepted as much on the hearing of the plea and specifically referred in his remarks to the fact that the respondent was to be sentenced as a serious sexual offender; the judge would have well understood that it followed that community protection was to be accorded primacy in the sentencing task. The judge should also be taken to have been aware of the applicable maximum penalties. Similarly, while there was no reference to specific deterrence, that had to be understood in the context of what was said to be a finding that the respondent had good prospects of rehabilitation.
The respondent submitted that the judge gave appropriate weight to the matters pleaded in mitigation. It was submitted that while the Sentencing Advisory Council reports and cases relied on by the Director demonstrated that the sentence passed on the respondent was ‘lenient’, it did not satisfy the exacting test for appellate intervention in a Director’s appeal. The respondent pointed to other cases which it was submitted were not directly comparable but demonstrated that the general sentencing statistics relied on by the Director were of little use in the present case.[27]
[27]R v BO [2006] VSCA 247; R v Wang [2007] VSCA 296; DPP v WRJ [2009] VSCA 174; R v IAB [2009] VSCA 229; Miller v The Queen [2011] VSCA 143; MA v The Queen [2012] VSCA 214; Dibbs v The Queen (2012) 225 A Crim R 195; PG v The Queen [2013] VSCA 9; CMG v The Queen (2013) 46 VR 728; Roper v The Queen [2016] VSCA 52.
The respondent concluded by submitting that, having regard to all the circumstances, there had been ‘a thorough and careful balancing’ by the sentencing judge. It was relevant to note that much of the offending had been of the ‘briefest’ duration. Further, despite the need to sentence the respondent as a serious sexual offender, the principle of totality was still applicable. In particular, this was not a case where the offender posed a prominent risk of reoffending or had poor prospects of rehabilitation; there was positive evidence of his otherwise good character.[28]
[28]See DPP v Hopson (a pseudonym) [2016] VSCA 303.
Finally, the respondent submitted that the case would warrant exercise of the residual discretion to refuse the appeal if the Court decided that any individual sentence was manifestly inadequate but that the total effective sentence this Court would impose would not be ‘that much greater’ than the one imposed by the sentencing judge.
Analysis
As noted, the sole ground of appeal alleges manifest inadequacy in the sentence imposed. Manifest inadequacy is a conclusion which does not depend on identifying any specific error of reasoning by the sentencing judge.[29] The only question is whether the Court is persuaded that the sentence was ‘wholly outside the range’ of sentencing options available to the sentencing judge.[30] As with the ground of manifest excess, it must be shown that something has gone ‘obviously, plainly or badly wrong’.[31]
[29]Dinsdale v The Queen (2000) 202 CLR 321, 325–6 [6] (Gleeson CJ and Hayne J).
[30]DPP v Karazisis (2010) 31 VR 634, 663 [127] (Ashley, Redlich and Weinberg JJA; Warren CJ and Maxwell P agreeing).
[31]See, eg, Clarkson v The Queen (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA).
The Director’s particular submissions regarding the reasons of the sentencing judge, in which various errors and omissions were said to reside, were directed more to seeking to explain the source of the alleged manifest inadequacy than to establishing that it existed. It will be useful to return to two of the Director’s specific submissions later in these reasons, namely the argument that the judge erred in considering that he was required by the principles of totality and proportionality to impose individual sentences that were lower than they might otherwise have been, and the contention that significant sentencing considerations were omitted from the judge’s remarks. However, the appeal does not turn on those issues.
In the present case, we have not found the material relied on as to current sentencing practice especially useful. The statistics on which the Director relied do not, as is well known, distinguish between sentences following a plea and those imposed after a trial.[32] Nor do the particular cases relied on provide any real assistance. As the Court said in DPP v Zhuang, recourse to other cases will only provide guidance as to the appropriate sentence where they may be seen to fall ‘broadly within the same category of seriousness as the subject offence and where the circumstances of the offender are not dissimilar’.[33] Unless that can be said, cases may (like sentencing statistics) serve only the very limited purpose of assisting the court to identify the limits of an appropriate sentencing range — without circumscribing that range. Even ‘like’ cases are not precedents; nor do they define the limits of the sentencing discretion.[34] The cases cited in this appeal lacked the requisite commonalities with the present offending (including the circumstances of the offender) to be described as ‘like’ cases and did not assist in determining whether the sentence imposed was manifestly inadequate.
[32]Blair (a pseudonym) v The Queen [2014] VSCA 175 [109] (Whelan JA; Weinberg and Beach JJA agreeing).
[33](2015) 250 A Crim R 282, 294 [34] (Redlich, Priest and Beach JJA).
[34]See Wong v The Queen (2001) 207 CLR 584, 605 [57] (Gaudron, Gummow and Hayne JJ).
It is therefore necessary to approach the appeal by applying the principles stated earlier and determining whether the sentence in the present case was within the range properly open to the sentencing judge. For the reasons that follow, in our opinion it was not.
No issue can be taken with the sentencing judge’s characterisation of the respondent’s offending as ‘appalling’[35] and a ‘serious betrayal of trust’.[36] The complainant was very young and was entitled to feel safe when she was entrusted into the respondent’s care. The offending was repeated and persistent over a period of about 16 months and the respondent had been told by the complainant that she did not like what he was doing. It has taken an inevitable and profound psychological toll on the complainant and her mother, in particular.
[35]Reasons [10].
[36]Ibid [12].
By definition the offending that involved sexual penetration was the most grave. But the indecent acts were also of a very serious nature. Despite the relatively short duration of most of those acts, they involved intimate violations of the complainant. The offending in charge 13, in which the respondent rubbed his penis between the complainant’s naked buttocks, especially called for denunciation.
Account must of course be taken, as the sentencing judge did, of the various factors relied on in mitigation. Chief among those were the respondent’s otherwise good character and his physical ailments, which it can be accepted will make a term of imprisonment more burdensome. His ‘somewhat’ vulnerable mental state is also a relevant factor, as is his otherwise good character as evidenced in particular by his impressive community service. But the respondent’s submissions went too far in asserting that the judge had identified ‘good’ prospects of rehabilitation. While the judge said that the respondent’s prospects ‘may well [be] good’,[37] this was said only by way of comparison with the difficulty the complainant would face in her own recovery. It is more telling that the judge later noted later in his remarks that the medical evidence suggested a ‘low to moderate’ risk of reoffending.[38] Part of the difficulty in assessing that risk lay in the respondent continuing to maintain his innocence. That highlights his lack of remorse or insight into his offending.
[37]Ibid [12].
[38]Ibid [18].
The maximum penalty for the offence of sexual penetration of a child under 16 is 25 years’ imprisonment, and the maximum term for an indecent act with a child under 16 is 10 years. The complainant was of course well under the age of 16, being 7 or 8 years of age at the time of the offending. As noted, the sentences on charges
3–4, 6–11 and 13 were required to be imposed for the principal purpose of protecting the community from the respondent.[39] Although not an aggravating factor, it must also be borne in mind that the respondent contested the charges and is therefore not entitled to the benefit that would have flowed from a guilty plea. Taking full account of the mitigating circumstances, the total effective sentence of 5 years and 6 months’ imprisonment and the non-parole period of 3 years wholly failed to reflect the need for denunciation, punishment, general and specific deterrence and the protection of the community.
[39]Sentencing Act 1991 s 6D(a). The prosecutor did not seek a disproportionate sentence under s 6D(b) in order to achieve that purpose.
The Director’s submissions concentrated especially on the orders for cumulation. We agree that the sentences ordered in cumulation were extremely low. Especially when account is taken of the fact that the offending in charges 3–4, 6–11 and 13 proceeded on the basis that cumulation was to be presumed by virtue of s 6E of the Sentencing Act 1991, cumulation of only 6 or 9 months (in the case of sexual penetration) and 1 or 2 months (for all but one of the indecent acts) cannot be sustained. Most of the charges related to individual occasions and reflected repeated, renewed violations of the complainant over a period of more than a year.[40] They warranted substantially higher levels of cumulation.
[40]Charges 3, 8 and 10 related to conduct occurring on the same occasions as the offending in charges 2, 7 and 9 respectively.
In resentencing, it is not appropriate to proceed, as the sentencing judge did, on the basis that the sentences to be imposed will need to be lower than they would otherwise have been, in order to reflect the principles of totality and proportionality.[41] It is necessary to say a little more about this aspect of the case.
[41]Senior counsel for the respondent pointed out in oral submissions that the prosecutor had assented when the judge indicated at the plea hearing his intention to proceed in this manner.
In Director of Public Prosecutions v Grabovac Ormiston JA, with whom Winneke P and Hedigan AJA agreed, explained the manner in which multiple sentences should be structured so as to give effect to the sentencing principles of totality and proportionality.[42] He said, in summarising his conclusions:[43]
In general a court should avoid imposing artificially inadequate sentences in order to accommodate the rules relating to cumulation. In other words, as the High Court said [in Mill v The Queen (1988) 166 CLR 59], where practicable when applying accepted rules of sentencing as to totality, proportionality and the like and in order to fashion an appropriate total effective head term in relation to a series of offences, it is preferable to achieve a satisfactory result by passing appropriate individual sentences and to make those sentences wholly or partially concurrent, rather than by an order or orders for the cumulation of unnecessarily reduced individual sentences. Nevertheless, a rule of this kind can only be a precept or guideline to be applied as and when practicable. In particular, though concurrency is to be preferred, a degree of cumulation ought to be ordered where sentences represent separate episodes or transactions which ought to be recognised, though at all times avoiding the imposition of a ‘crushing’ sentence.
[42][1998] 1 VR 664, 676–81 (‘Grabovac’).
[43]Ibid 680. See also R v Lomax [1998] 1 VR 551.
As this passage indicates, Ormiston JA was proceeding on the assumption that concurrency is ordinarily to be presumed. That position does not obtain in the case of sentencing of a serious sexual offender, by virtue of s 6E of the Sentencing Act 1991. This case does not require the Court to determine how the principle of totality is to be reconciled with the legislative policy in s 6E.[44] However, the same need to commence by fixing sentences for individual offences applies. Ormiston JA explained in Grabovac:[45]
What the judge should have done was to fix the appropriate term for each offence, then to direct such cumulation and concurrency as would likewise reflect the criminality of each episode of offending and finally to look at the end result to see if the principle of totality had been breached and to see otherwise whether it was a crushing head sentence. I would not suggest that this should be a mechanical process. Obviously a judge could fairly fix on a degree of concurrency and cumulation with an eye to what would not offend against the principle of totality; after all that is the object of the rules relating to both concurrency and cumulation. But the starting point should be sentences which are proportionate to and appropriate for each offence.
However, in reaching these conclusions, I would not suggest that it would not be proper on occasions to tailor the individual sentences by reducing them to a degree to enable other principles to be accommodated properly, e.g., to allow for the significance of separate episodes of offending to be recognised by directions for cumulation. … [A] direction for partial cumulation may require some reduction of one or more individual sentences but any reduction should not take the original sentence outside the range appropriate to the gravity of the offence. If anything is to be sacrificed in these circumstances it ought to be the need to order cumulation for each logically separate transaction or episode. So long as it is not made to appear that additional offences could have been committed with impunity, then some compromise with apparent ‘principle’ may be made where there are a series of offences which cannot in practice be all accorded a degree of cumulation, whatever strict logic might require.
[44]See DPP v Hopson (a pseudonym) [2016] VSCA 303 [48]–[52] (Redlich and Whelan JJA and Beale AJA); Gordon v The Queen [2013] VSCA 343 [74] (Redlich JA); McL v The Queen (2000) 203 CLR 452, 476–7 [76] (McHugh, Gummow and Hayne JJ).
[45][1998] 1 VR 664, 683–4.
It has been affirmed since Grabovac that the approach of imposing appropriate individual sentences and then ordering cumulation or concurrency is far preferable to moderating individual sentences.[46] That said, such moderation may still be required, as the same authorities confirm, if orders for cumulation or concurrency are incapable of yielding a proportionate total effective sentence.
[46]See, eg, Azzopardi v The Queen (2011) 35 VR 43, 62 [65] (Redlich JA; Coghlan and Macaulay AJJA agreeing); DPP v Jones (2013) 40 VR 267, 288 [90] (Redlich and Priest JJA); DPP (Cth) v KMD[2015] VSCA 255 [89]–[97] (Maxwell P, Weinberg and Beach JJA); Zogheib v The Queen [2015] VSCA 334 [86] (Kaye JA; Maxwell P and Santamaria JA agreeing); Binse v The Queen [2016] VSCA 145 [64] (Whelan, Beach and McLeish JJA).
It should finally be mentioned that there was some force in the Director’s complaint that the judge’s sentencing remarks omitted mention of significant sentencing considerations. While it is not suggested that the judge committed specific error by overlooking those considerations, and it is not essential that a sentencing judge slavishly enunciate every single consideration that bears on the exercise of the sentencing function, it is desirable in the interests of transparency that the remarks make reference to the principal factors that bear on the sentence.
The present was not a case where the judge could be criticised for failing to make clear the basis for his sentence or how the submissions that had been made on the plea had been taken into account. However, in light of the matters to which the Director drew attention, it is worth repeating what was said about the need for transparency in sentencing remarks in R v Koumis:[47]
While reasons for sentence need not be extensive, one would usually expect the reasons to include certain matters. Without being prescriptive or exhaustive, one would generally expect the reasons to include the sentencing judge’s findings as to the circumstances of the offence and any circumstances which the judge regards as aggravating or mitigating. Reference will normally be made to the impact of the offence upon the victims. The personal circumstances of the offender which bear materially upon the sentence should be identified. It is also desirable that conclusions reached by the sentencing judge as to the primary arguments advanced by the parties, particularly if they are in controversy, should be apparent from the reasons. That is not to suggest that the sentencing judge is obliged to address every argument advanced on the plea.[48] But the primary factors that have influenced the instinctive synthesis should be exposed during the course of the sentencing remarks. Where the sentencing remarks are deficient as to such material matters, transparency in the process is denied and interested parties are left to ‘speculate’ about the reasoning process.[49]
[47](2008) 18 VR 434, 439–40 [63] (Redlich and Kellam JJA and Osborn AJA).
[48]R v Giakas [1988] VR 973.
[49]DPP v Josefski (2005) 13 VR 85, 91 [30] (Maxwell P).
The respondent should be resentenced as follows:
| Charge | Offence | Maximum | Sentence | Cumulation |
| 1 | Indecent act with a child under the age of 16 | 10 years | 9 months’ imprisonment | 1 month |
| 2 | Indecent act with a child under the age of 16 | 10 years | 9 months’ imprisonment | 2 months |
| 3 | Indecent act with a child under the age of 16 | 10 years | 9 months’ imprisonment | 2 months |
| 4 | Indecent act with a child under the age of 16 | 10 years | 15 months’ imprisonment | 4 months |
| 6 | Indecent act with a child under the age of 16 | 10 years | 12 months’ imprisonment | 3 months |
| 7 | Indecent act with a child under the age of 16 | 10 years | 12 months’ imprisonment | 3 months |
| 8 | Indecent act with a child under the age of 16 | 10 years | 12 months’ imprisonment | 3 months |
| 9 | Sexual penetration of a child under the age of 16 | 25 years | 4 years’ imprisonment | Base |
| 10 | Sexual penetration of a child under the age of 16 | 25 years | 3 years’ imprisonment | 6 months |
| 11 | Sexual penetration of a child under the age of 16 | 25 years | 3 years’ imprisonment | 1 year |
| 13 | Indecent act with a child under the age of 16 | 10 years | 18 months’ imprisonment | 6 months |
| Total Effective Sentence: | 7 years and 6 months’ imprisonment | |||
| Non-Parole Period: | 5 years | |||
In light of this conclusion, the issue raised by the respondent regarding the residual discretion does not arise.
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