DPP v Wilson (a pseudonym)
[2018] VSCA 263
•17 October 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0006
| DIRECTOR OF PUBLIC PROSECUTIONS | Appellant |
| v | |
| ALEXANDER WILSON (a pseudonym)[1] | Respondent |
[1]To ensure that there is no possibility of identification of the victims, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the respondent.
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JUDGE: | WHELAN, T FORREST JJA and TAYLOR AJA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 8 October 2018 |
DATE OF JUDGMENT: | 17 October 2018 |
MEDIUM NEUTRAL CITATION: | [2018] VSCA 263 |
JUDGMENT APPEALED FROM: | DPP v Alexander Wilson (a pseudonym) (Unreported, County Court of Victoria, Judge Cotterell, 20 December 2017) |
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CRIMINAL LAW – Appeal – Sentence – Crown appeal – Incest – Indecent act with a child under 16 years – Offending over several years – Whether individual sentences manifestly inadequate – Whether total effective sentence manifestly inadequate – Whether new total effective sentence and new non parole period manifestly inadequate – Appeal allowed – Respondent resentenced– New total effective sentence of nine years six months – New global non-parole period of seven years – Crimes Act 1958 (Vic) ss 44, 47 – DPP (Vic) v Dalgliesh (a pseudonym) (2017) 349 ALR 37.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr B Kissane QC with Mr J Gullaci | Office of Public Prosecutions |
| For the Respondent | Ms F Todd with Mr N Jane | Stary Norton Halphen |
WHELAN JA
T FORREST JA
TAYLOR AJA:
This Court recently observed that incest is an appalling crime involving a fundamental breach of trust.[2] A child is cynically exploited in a crime of violence. In this case, the offender/respondent was the child’s grandfather. He was also grandfather to three sisters, each of whom was also abused by him. At the time the impugned sentence was imposed, he was serving a sentence for offending against those other grandchildren.
[2]See R v Walsh (a pseudonym) [2018] VSCA 172.
On 29 November 2017 in the County Court, the respondent pleaded guilty to four charges of incest and three charges of indecent act with a child under 16. On 20 December 2017 he was sentenced as follows: [3]
[3]See Reasons for Sentence, DPP v Alexander Wilson (a pseudonym) [2017] VCC (County Court of Victoria, Judge Cotterell, 20 December 2017) (‘Sentence’) at [35].
Charge on Indictment H11380338
Offence
Maximum
Sentence
Cumulation
1
Indecent act with a child under 16 contrary to s 47(1) Crimes Act 1958 (Vic)
10 years’ imprisonment (s 47(1) Crimes Act 1958 (Vic))
12 months’ imprisonment
1 month
2
Incest contrary to s 44(1) Crimes Act 1958 (Vic)
25 years’ imprisonment (s 44(1) Crimes Act (Vic))
54 months’ imprisonment
Base sentence
3
Indecent act with a child under 16 contrary to s 47(1) Crimes Act 1958 (Vic)
10 years’ imprisonment (s 47(1) Crimes Act 1958 (Vic))
6 months’ imprisonment
1 month
4
Incest contrary to s 44(1) Crimes Act 1958 (Vic)
25 years’ imprisonment (s 44(1) Crimes Act (Vic))
3 years’ imprisonment
1 month
5
Incest contrary to s 44(1) Crimes Act 1958 (Vic)
25 years’ imprisonment (s 44(1) Crimes Act (Vic))
3 years’ imprisonment
1 month
6
Incest contrary to s 44(1) Crimes Act 1958 (Vic)
25 years’ imprisonment (s 44(1) Crimes Act (Vic))
54 months’ imprisonment
1 month
7
Indecent act with a child under 16 contrary to s 47(1) Crimes Act 1958 (Vic)
10 years’ imprisonment (s 47(1) Crimes Act 1958 (Vic))
7 months’ imprisonment
1 months
Total Effective Sentence:
5 years’ imprisonment (1 year of this sentence is to be served cumulatively upon the sentence of 7 years presently being served).
Non-Parole Period:
New global non-parole period of 6 years is fixed to commence from 11 March 2016.
Pre-Sentence Detention declaration pursuant to s 18(1) of the Sentencing Act 1991 (Vic):
Nil
6AAA Statement:
6 years’ imprisonment with a non-parole period of 3 years and 6 months
Other Orders:
- Forensic Sample Order
- Sentenced as a serious sexual offender pursuant to s 6B Sentencing Act 1991 (Vic) on all charges.
We shall refer to this as the current offending.
As we have said, the respondent was serving another sentence at the time the impugned sentence was imposed. On 29 April 2016 in the County Court, he was sentenced as follows:
Charge on Indictment F12061321
Offence
Maximum
Sentence
Cumulation
1
Indecent act with a child under 16 contrary to s 47(1) Crimes Act 1958 (Vic) [this was charged as a representative charge]
10 years’ imprisonment (s 47(1) Crimes Act 1958 (Vic))
9 months’ imprisonment
3 months
2
Use carriage service to menace, harass or cause offence contrary to s 474.17 of the Criminal Code Act 1995 (Cth) [this was charged as a representative charge]
3 years’ imprisonment (s 474.17(1) Criminal Code Act 1995 (Cth))
Convicted and fined $3000
Not applicable
3
Incest contrary to s 44(1) Crimes Act 1958 (Vic) [this was charged as a representative charge]
25 years’ imprisonment (s 44(1) Crimes Act (Vic))
5 years’ imprisonment
Base sentence
4
Incest contrary to s. 44(1) Crimes Act 1958 (Vic)
25 years’ imprisonment (s 44(1) Crimes Act (Vic))
3 years’ imprisonment
18 months
5
Indecent act with a child under 16 contrary to s 47(1) Crimes Act 1958 (Vic.)
10 years’ imprisonment (s 47(1) Crimes Act 1958 (Vic))
6 months’ imprisonment
3 months
Total Effective Sentence:
7 years’ imprisonment
Non-Parole Period:
5 years
Pre-Sentence Detention declaration pursuant to s. 18(1) of the Sentencing Act 1991 (Vic):
49 days
6AAA Statement:
6 years’ imprisonment with a non-parole period of 3 years and 6 months
Other Orders:
- Sex Offender’s Registration Act reporting for life
- Sentenced as a serious sexual offender pursuant to s 6F Sentencing Act 1991 (Vic) on charges 4 and 5.
We shall refer to this as the related offending.
The Director of Public Prosecutions appeals against the sentences imposed in the 20 December 2017 sentence. The Director contends that the sentences imposed on counts 4, 5 and 7 were manifestly inadequate, the total effective sentence of 5 years is manifestly inadequate, as is the order for one year cumulation upon the 7 year total effective sentence imposed on 29 April 2016.
It is necessary to set out in short form the circumstances of both sets of offending.
Current offending
SW was 10 years old and staying over at her grandfather’s house when he put her to bed. He massaged her neck, stomach, legs and back and then touched her vagina with his finger (Charge 1 — indecent act with a child under 16). When SW was 11, the respondent took her into his garage, pulled her underpants down and penetrated her vagina with his tongue (Charge 2 — incest). At about this time, the respondent took her into his computer room and showed her a pornographic video depicting adult heterosexual sex (Charge 3 — indecent act with child under 16). When SW was 12, the respondent, when tucking her into bed, inserted his finger into her vagina (Charge 4 — incest). On a further occasion, when SW was about 12, the complainant exited the shower in her grandfather’s bathroom. He came in, knelt in front of her, held her arms at her sides and licked her vagina (Charge 5 — incest). At 13 years of age, SW stayed overnight again at her grandparents’ house. Her grandfather tucked her into bed, moved his hand to her vagina and penetrated her with his finger (Charge 6 — incest). Finally, when SW was about 13 or 14, again at her grandparents’ house, the respondent came into her bedroom and touched her vagina. She asked him to stop, he did so and did not offend against her again (Charge 7 — indecent act with child under 16).
The current offending therefore occurred over several years and involved one complainant who was aged between 10 and 13 or 14.
Related offending
The respondent, who has been married for 50 years, has two children. His daughter is the mother of SW. His son is the father of BM, PM and LM, the three female complainants in the related offending. Thus, SW is the cousin of BM, PM and LM.
In 2009, when BM was 13 and 14 years old, she would stay at her grandparents’ house after gymnastics class. On three occasions, the respondent showed her pornographic computer images including tattooed and pierced male and female genitalia, images of female pubic waxing styles, and adult pornography involving the use of dildos (Charge 1 — indecent act with child under 16 — representative charge).
On the first and third occasions set out in the previous paragraph, the respondent forwarded the pornographic material to BM’s email account (Charge 2 — use carriage service to menace, harass or cause offence — representative).
Between 1 January 2004 and 31 December 2007 (i.e. over four years), the respondent touched PM on many occasions. PM was between 7 and 10 years old during this period. When she was 8, she was sitting on the respondent’s lap watching TV. Her family was present. The respondent touched her clitoris. On another occasion, the respondent did the same thing while PM was in bed at her grandparents’ house. He said, ‘… if I do this you can’t tell anyone.’ On a third occasion, when PM was about 9, the respondent again touched her vagina while she was sitting on his lap. This occurred at PM’s house at a time when her grandfather was visiting (Charge 3 — incest — representative).
Over the same period, LM was also offended against. She was PM’s twin sister. On one occasion, the date is unclear, LM was wrapped in a towel after showering at her grandparents’ house. In the lounge room, the respondent put his hand under the towel and inserted his fingers into her vagina for between half a minute and a minute. This activity was interrupted by the respondent’s wife entering the lounge room (Charge 4 — incest).
Again while staying over at her grandparents’ house, LM was in bed when the respondent entered and sat on the bed. He stroked LM’s body and touched her vagina over the doona covers. He told LM that ‘… it was our little secret and if Gran or Dad knew then we would get into a lot of trouble’ (Charge 5 — indecent act with child under 16).
It is important to bear steadily in mind that this is not an appeal against the adequacy of Davis J’s sentence on the related offending. As we have set out, on that occasion the respondent was sentenced to a total effective sentence of 7 years’ imprisonment, with a minimum non-parole period of 5 years. This sentence was imposed shortly before the High Court handed down its decision in DPP (Vic) v Dalgliesh (a pseudonym).[4]
[4](2017) 349 ALR 37.
This appeal
The Director of Public Prosecutions has filed a notice of appeal with the following grounds:
Ground 1.The individual sentences on charges 4, 5 and 7 are manifestly inadequate in the circumstances.
Ground 2.The ‘total effective sentence’ is manifestly inadequate in all the circumstances.
Ground 3.The ‘new total effective sentence’ and the ‘new single non-parole period’ (imposed on the current sentence and the related sentence) are manifestly inadequate in all the circumstances.
The grounds are interrelated and we shall deal with them as one.
Submissions
The appellant reminded us that the respondent fell to be sentenced as a serious sexual offender consequent upon his convictions for the related offences. It follows that the protection of the community is statutorily elevated as the principal sentencing purpose and the common law principle of totality is modified. The appellant also reminded us of the recent High Court decision of DPP v Dalgliesh (a pseudonym)[5] and submitted that the effective one-year additional term of imprisonment for such serious offending was manifestly inadequate. That manifest inadequacy extended to the individual sentences imposed on charges 4, 5 and 7 and the total effective sentence of 5 years’ imprisonment.
[5]Ibid.
The respondent contended that the individual sentences imposed on charges 4, 5 and 7 are well within range, especially having regard to the guilty pleas and other mitigating factors. In particular, the respondent relied on his age (77 at the time of sentence), his contributions to the community over many years, his remorse and the positive steps he had made towards rehabilitation. Insofar as cumulation on the related offending is concerned, the respondent contended that the additional year added to the existing sentence was entirely within range given the respondent’s age and low risk of recidivism. As things currently stand, the respondent will be 82 at the end of his non-parole period and 84 at the expiration of his sentence.
Analysis
The appellant, whilst arguing manifest inadequacy, does not contend that there is any specific error in her Honour’s careful reasons for sentence. Her Honour, having described the offending correctly, noted that this was ‘extremely serious offending’ and set out the destructive impact the offending has caused to the complainant and the wider family unit. Her Honour stated that ‘… a society which fails to protect its children from sexual abuse from adults, particularly those entrusted with their care, is degenerate’. Her Honour was quoting from the decision of R v Sposito[6] (per Marks J). Those words, uttered in 1993, remain depressingly appropriate a quarter of a century later.
[6][1993] SCV (8 June 2009) [4].
Her Honour set out the factors in mitigation, which largely centred around the respondent’s age, his pleas of guilty, his lack of prior criminal history, his community contributions, his remorse and his prospects of rehabilitation.
In Dalgliesh[7] this Court concluded that then current sentencing for incest revealed error in principle.[8] A sentencing practice had developed that was not a proportionate response to the objective gravity of the offence, nor did it sufficiently reflect the moral culpability of the offender. On appeal by the Director, the High Court endorsed this Court’s conclusion set out above, but held this Court had erred in not applying that conclusion to the respondent.[9]
[7][2016] VSCA 148.
[8]Ibid [128].
[9](2017) 349 ALR 37 [2] (Kiefel CJ, Bell and Keane JJ).
Consistent with what the High Court said in Dalgliesh, this Court recently in Carter (a pseudonym) v The Queen[10] rejected an argument that sentences for incest ought be increased only incrementally. The Court said, ‘[t]he incremental increase cases in Victoria should be taken as overruled by Dalgliesh.’[11] Just sentences must be imposed.
[10][2018] VSCA 88.
[11]Ibid [80].
In our view, the sentences imposed on charges 4, 5 and 7 are manifestly inadequate in all the circumstances. We are also of the view that the total effective sentence is manifestly inadequate in all the circumstances and that the combined new total effective sentence and the new single non-parole period[12] are also manifestly inadequate. We shall explain our reasons for these conclusions.
[12]Imposed on indictment H11380338 (the current offending) and on indictment F12061321 (the related offending).
When the complainant was 9 years old, her cousin asked her ‘Does Pa touch you?’ She replied ‘No’ and her cousin responded ‘You’ll be next’. Within about a year the respondent commenced ongoing and regular sexual abuse of the complainant over a three to four year period. Within this context, the indecent acts and the digital and vaginal acts of incest occurred. The complainant was cynically exploited for base sexual gratification. In the process, her life has been profoundly impacted. The respondent’s conduct was reprehensible and demands denunciation and condign punishment.
Against this, the respondent is of advanced years. He is now 78. That is one of many factors relevant to sentencing. Alone, it cannot justify a departure from what is ‘just and appropriate’. Even allowing for the application of the principle of totality (as modified by the serious sex offender legislation) and the other mitigating factors identified by her Honour, in our opinion the individual sentences, the orders for cumulation and the new total effective sentence and minimum term were wholly outside the range of sentences available to her Honour. ‘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.’[13] There is no reason why these remarks, made recently in a judgment from this Court, ought not apply equally to grandparents.
[13]DPP v Makwalsh (a pseudonym) [2018] VSCA 172 [33] (Maxwell P, McLeish JA).
We will allow the appeal and resentence the respondent as follows:
Charge on Indictment H11380338
Offence
Sentence
Cumulation
1
Indecent act with a child under 16 contrary to s 47(1) Crimes Act 1958 (Vic)
12 months’ imprisonment
3 months
2
Incest contrary to s 44(1) Crimes Act 1958 (Vic)
4 years 6 months’ imprisonment
Base sentence
3
Indecent act with a child under 16 contrary to s 47(1) Crimes Act 1958 (Vic)
6 months’ imprisonment
3 months
4
Incest contrary to s 44(1) Crimes Act 1958 (Vic)
4 years 6 months’ imprisonment
6 months
5
Incest contrary to s 44(1) Crimes Act 1958 (Vic)
4 years 6 months’ imprisonment
6 months
6
Incest contrary to s 44(1) Crimes Act 1958 (Vic)
4 years 6 months’ imprisonment
6 months
7
Indecent act with a child under 16 contrary to s 47(1) Crimes Act 1958 (Vic)
12 months’ imprisonment
3 months
Total Effective Sentence:
6 years 9 months’ imprisonment (2 years 6 months of this sentence is to be served cumulatively upon the sentence of 7 years presently being served; 4 years 3 months is to be served concurrently).
New TES of 9 years 6 months. This new TES is to commence on 11 March 2016.
Non-Parole Period:
New global non-parole period of 7 years is fixed to commence from 11 March 2016.
Pre-Sentence Detention declaration pursuant to s 18(1) of the Sentencing Act 1991 (Vic):
Nil
6AAA Statement:
8 years 6 months’ imprisonment.
7
4
0