DPP v WRJ
[2009] VSCA 174
•3 August 2009
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 670 of 2008
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| WRJ |
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JUDGES: | MAXWELL P,VINCENT and NEAVE JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 21 January 2009 | |
DATE OF JUDGMENT: | 3 August 2009 | |
MEDIUM NEUTRAL CITATION: | [2009] VSCA 174 | |
JUDGMENT APPEALED FROM: | r v WRJ (Reasons for Sentence) (Unreported, County Court of Victoria, Judge Pilgrim, 5 May 2008) | |
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CRIMINAL LAW – Appeal – Sentence – Director’s appeal – Sexual penetration of child under 10 – Indecent act with a child under 16 – Sexual penetration of child under 16 – Indecent assault – Persistent offending against same victim over seven years – Victim the offender’s niece – Total effective sentence of 3 years and 10 months, with a non-parole period of 1 year and 8 months – Whether manifestly inadequate – Whether insufficient cumulation – Significant mitigating factors – Delay of six years between complaint and sentence – Unfairness – Rehabilitation – Respondent suffering from severe depression – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr G Silbert SC with Mr B L Sonnet | Mr C Hyland, Solicitor for Public Prosecutions |
| For the Appellant | Mr P Tehan QC with Mr S Kennedy | Ronald V Tait |
MAXWELL P
VINCENT JA:
After a trial in the County Court, the respondent (‘WRJ’) was convicted of two counts of sexual penetration of a child under 16, seven counts of committing an indecent act with a child under 16 and three counts of indecent assault. The offending took place between 1994 and 2001. The victim (‘P’) was nine when the offending began and 15 when it ceased. WRJ was seven and a half years older than P.
WRJ was sentenced as set out in the table below:
Sentence imposed
| Count | Offence | Age of victim | Age of offender | Maximum penalty | Sentence | Cumulation | ||
| 3 | Penetration (digital) of child under 16 | 9 | 16-17 | 25 | 3y | Base | ||
| 4 | Indecent act with child under 16 (IA) | 9 | 16-17 | 10 | 1y |
| ||
| 5 | IA | 9 | 16-17 | 10 | 1y | |||
| 6 | IA | 9 | 16-17 | 10 | 1y | |||
| 7 | IA | 9 | 16-17 | 10 | 1y | |||
| 9 | IA | 11 | 18-19 | 10 | 1y | |||
| 10 | IA | 13 | 20-21 | 10 | 1y | |||
| 11 | IA | 13 | 20-21 | 10 | 1y | |||
| 12 | Sexual penetration (penile) of child under 16 | 15 | 22-23 | 10 | 1y 6m | 6m | ||
| 13 | Indecent assault | 15 | 22 | 10 | 1y | |||
| 14 | Indecent assault | 15 | 22 | 10 | 1y | |||
| 15 | Indecent assault | 15 | 22 | 10 | 1y | |||
| Total effective sentence : 3y 10m | ||||||||
The Director of Public Prosecutions has appealed against the sentence, under s 567A of the Crimes Act 1958 (Vic), on the ground of manifest inadequacy. Complaint is made in respect of the sentence imposed on count 12 (sexual penetration of a child under 16), the total effective sentence and the non-parole period fixed. In support of the complaint that the total effective sentence was inadequate, a second ground contends that there was insufficient cumulation between counts.
For reasons which follow, we would dismiss the appeal.
The circumstances of the offending
WRJ was born in February 1978. He was aged 16 or 17 when the offending began. For most of the period of the offending, WRJ resided in the Swan Hill area with his mother. In 1996 and 1997 he was a full-time boarder at school while he completed years 11 and 12.
The complainant is WRJ’s niece. She is his sister’s daughter. While growing up, she spent extended periods of time at the home of her grandmother, WRJ’s mother. As a result, WRJ and the complainant were for long periods living in the same house. WRJ often had to act as babysitter or carer for the complainant and her siblings. Most of the offending occurred in the family home. The offences occurred without the knowledge of the (grand)mother. WRJ was fully aware of P’s age.
The first offence of sexual penetration occurred when P was nine. She had just come home from school. WRJ put his hand down her pants and inserted his finger into her vagina. P gave evidence that she was crying and telling him to stop but that he did not ‘and it went on for three or four minutes’.
The other offence of sexual penetration was committed when P was 15. It took place in the rear seat of WRJ’s car. He had driven a friend home. P was travelling in the back seat. After dropping the friend off, WRJ pulled over by the side of the road and got into the back seat with P. He penetrated her vagina with his penis. In evidence she said, ‘I started screaming and threatening him saying “if you don’t get off I’ll kill myself”.’
The counts of indecent act covered a range of incidents where WRJ touched P on the vagina, either through her clothes or directly, or caused her to touch his penis. The three counts of indecent assault related to a single course of events during which, on three separate occasions, WRJ touched P on the breasts.
As we recently restated in Director of Public Prosecutions v DDJ,[1] sexual offending against children is a matter of the utmost seriousness. We there set out some of the strong statements made by the courts, over many years, about the community’s abhorrence of the sexual abuse of children, especially by persons in a position of trust. We also pointed out that
[t]he repetition of the sexual abuse is likely to heighten the victim’s fear that the abuse will occur again, and to increase the damage which he or she suffers. Equally, the repetition is likely to make the offender progressively more aware of the effect the abuse is having on the victim. In each of these respects, culpability is heightened.[2]
[1][2009] VSCA 115, [36].
[2]Ibid [32].
The present case exhibits all of these features. The offending went on for many years and P was greatly damaged by it. The relationship between WRJ and P was one of trust, both the implicit trust embodied in the relationship of uncle and niece and the explicit trust imposed on WRJ by his mother, to care for P when she was not there. The counts of sexual penetration are particularly serious. Of those, the second is more serious than the first, given that it occurred when WRJ was 22 or 23 and the sexual abuse had already been going on for six years. Far from coming to a mature realisation of the wrongfulness of his conduct, WRJ proceeded to commit a much more serious offence.
As noted earlier, it is the sentence for the second penetration count about which the Director makes specific complaint. Importantly, the fact that P was aged 15 at the time means that the applicable maximum is 10 years, in contrast to the maximum of 25 years applicable to the first penetration count. The Director’s submission was that the appropriate sentencing range for that count was three to four years’ imprisonment, this being ‘a bad example’ of the offence. The Director’s submission drew attention to the Sentencing Advisory Council’s Sentencing Snapshot for the offence of sexual penetration of a child aged between 10 and 16.[3] In the period 2001-02 to 2005-06, imprisonment terms ranged from four months to four years and two months. The median length of imprisonment was two years, and the average term ranged from one year and nine months in 2001-02 to two years and seven months in 2004-05. According to the Director’s submission, a sentence below the median could not reasonably be justified in the present case.
[3]Sentencing Advisory Council, Sentencing Trends for Sexual Penetration of a Child Aged between 10 and 16 in the Higher Courts of Victoria, 2001-02 to 2005-06, Sentencing Snapshot No 31 October 2007.
In order to assess that submission, it is necessary to examine the very significant mitigating factors on which WRJ was able to rely. These factors were very carefully considered by the sentencing judge.
Delay: rehabilitation and fairness
On the plea, the prosecutor quite properly brought to the judge’s attention that there had been a very significant delay between the first report of the offending and the sentencing hearing. P first made a statement to police in May 2002. WRJ was interviewed by investigating police in August 2002 but was not charged until late July 2006, almost four years later. The prosecutor noted that the sentencing hearing was nearly six years after P’s initial statement. He told the judge:
None of that delay is attributable to the prisoner. He gets the full benefit of that delay. The present informant in court is not responsible for the delay but matters were not attended to in respect of this investigation when they should have been earlier …
As this Court has often said, delay which is not attributable to the offender constitutes a powerful mitigatory factor.[4] Commendably, defence counsel drew the attention of the sentencing judge to the relevant cases, and his Honour quoted from them extensively in his reasons.
[4]R v Miceli [1998] 4 VR 588, 591 (Tadgell JA); R v Schwabegger [1998] 4 VR 649, 659 (Vincent AJA); R v Cockerell [2001] 126 A Crim R 444, 447 [10] (Chernov JA); R v Merrett, Piggott and Ferrari (2007) 14 VR 392, 400 [35] (Maxwell P).
As Vincent AJA said in R v Schwabegger[5] (‘Schwabegger’), delay can have relevance at a number of levels. His Honour referred to Duncan v R,[6] where the Western Australian Court of Criminal Appeal had said:
[W]here, prior to sentence, there has been a lengthy process of rehabilitation and the evidence does not indicate a need to protect society from the applicant, the punitive and deterrent aspects of the sentencing process should not be allowed to prevail so as to possibly destroy the results of that rehabilitation.
… The very fact of the long delay in bringing the matter to court which led the applicant to have this matter hanging over his head for nearly four years is rightly prayed in aid on his behalf.[7]
[5]R v Schwabegger [1998] 4 VR 649, 659.
[6](1983) 47 ALR 746.
[7]Ibid 749.
What Vincent JA said in Schwabegger is particularly relevant to the present case:
[T]here is, in my opinion, a serious incongruity between the assertion that an offence is serious and that the courts must, through the sentences they impose, endeavour to limit its incidence, on the one hand, and such a leisurely progression of the criminal justice proceedings which follow its commission that literally years pass before the matter comes before the court, on the other. For a number of reasons, the investigation and prosecution of criminal conduct should be conducted as quickly as is reasonably practicable if the objectives of the system are to be attained. Additionally, a legitimate sense of unfairness can develop when the criminal justice process proceeds in what can be perceived as too leisurely a fashion.[8]
[8]Schwabegger [1998] 4 VR 649, 659–60.
Street CJ had earlier adverted to these considerations in R v Todd:[9]
Moreover, where there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstance that he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on the subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach – passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner.
[9][1982] 2 NSWLR 517, 519-20.
In R v Merrett, Piggott and Ferrari[10] (‘Merrett’s case’), a delay of three years (between the offending and the laying of charges) was described as ‘quite extraordinary’. The same could be said, with even more force, of the present case. The case against WRJ could hardly have been more straightforward. There was a single complainant and the decision whether or not to lay charges could have been made, we would have thought, soon after she and the respondent had been interviewed.
[10](2007) 14 VR 392.
As Maxwell P pointed out in Merrett’s case, the significance of delay does not depend on whether the delay can be satisfactorily explained or not. Its relevance lies rather in the effect which the lapse of time – however caused – has on the accused. As the judge correctly observed, attention must be focused on issues of rehabilitation and fairness.
We deal first with rehabilitation. With one exception (to which we refer below), the respondent had an unblemished record between 2000 (when this offending ceased) and 2008, when he was remanded in custody for sentence following his conviction. That counts strongly in his favour, in our view, especially in view of the very difficult circumstances under which he was living during that period, to which we now turn.
As the judge found, until these allegations were made public in 2002, WRJ ‘held an esteemed position in society, in particular in the Aboriginal community.’ He had for a number of years been a Koori Community Alcohol and Drug Worker with the Aboriginal Cooperative in Swan Hill. In a reference tendered on the plea, Dr Michael Moynihan of the Swan Hill Medical Group described him as an effective worker, and a hard worker, in that position. According to the report of Kathleen O’Callaghan, a consultant psychologist working in Swan Hill, WRJ
was one of the most respected, educated and helpful person to his fellow [members of the] Aboriginal Community. He was also respected by Professionals in the medical field for his work in assisting people overcome personal drug and alcohol problems. When the charges were laid his whole world changed. He lost his Drug and Alcohol work and he was soon openly maligned by members of the Koori Community. Overnight he was the victim of harsh inferences and even ridicule.
His personal life became hellish. He was ordered never to be alone with any of his children because of the nature of his charges. He confided that he was afraid to give even a kiss to his children. He could be with his youngest son (now two years old) only when [his partner] was present.
…
The once competent member of Swan Hill community both Indigenous and non-indigenous is a broken disillusioned person. Since the charges have become known and consequently spread by word of mouth he has became openly ridiculed every time he walked or drove his car in town, to the extent that he stayed home and filled in an application to request a home in a totally different town.
Dr Moynihan said:
Although he was a hard worker he has been debarred from employment while the case has been progressing over the last few years. He also recently retaliated to insult in Bendigo recently and was convicted of assault. Despite enduring much before, he has succumbed to depression.
In the circumstances, we do not regard the conviction for assault mentioned by Dr Moynihan (to which the Crown made no reference, either on the plea or on the appeal) as detracting materially from the very powerful mitigation available to WRJ by reason of the long delay and his having otherwise refrained from further offending. His circumstances could hardly have been more difficult in the period 2002-08. The opprobrium to which he has been subjected only emphasises the unfairness of his having had hanging over his head for so many years the prospect of being charged and, ultimately, incarcerated.
The sentencing judge made positive findings about WRJ’s prospects of rehabilitation, as follows:
Ms O’Callaghan says of you that your reasoning power, vocabulary and acquired academic achievement suggests a high normal to superior education. All of this augurs well for your prospects of rehabilitation. In addition you have the continued support of your mother, your partner … and a friend … who was in court on the last occasion we were together and I believe they are all here again today.
Ms O’Callaghan lists your qualifications and abilities together with your past work history. In her report your achievements and list of qualifications are impressive. Again all of those things go towards good prospects of rehabilitation. With the support of your mother, [your partner and your friend] and your previous good work ethic you should in the future return to be an important and useful citizen within the community.[11]
[11]The Queen v WRJ (Reasons for Sentence) (Unreported, County Court of Victoria, Judge Pilgrim, 5 May 2008) [35]–[36].
No issue was taken with those findings on the appeal.
The relevance of severe depression
There is no suggestion that WRJ suffered any mental impairment during the years when the offending occurred. As noted, however, WRJ became very depressed after the allegations were made public and before the charges came on for trial in 2008. According to the 2007 report from Dr Moynihan, he was then on anti-depressant medication and was being seen by a visiting psychiatrist. As at April 2008, when Ms O’Callaghan prepared her report, he was described as ‘very susceptible to depression’. According to Ms O’Callaghan’s testing, he was suffering from ‘severe depression‘ and very high levels of distress.
A related matter which the judge took into account concerns WRJ’s eldest brother. Both Ms O’Callaghan and Dr Moynihan referred to the fact that his brother was a ‘stolen generation’ Koori, who had been taken from his mother. Eventually, the brother was charged with murder in the United States. It was only after a persistent campaign by their mother, involving extensive travel to the United States, that the death sentence was commuted to life imprisonment.
Senior counsel for WRJ provided the Court with an affidavit of December 2008 prepared by Andrea Hilton, an Aboriginal liaison officer at Port Phillip Prison. Ms Hilton is employed ‘to assist Aboriginal prisoners in relation to their specific cultural needs’. In her affidavit she said:
I have much more contact with [WRJ] than other prisoners because of his high needs.
I have observed that he has yet to come to terms with imprisonment. He appears to me to be less settled than other prisoners. He is difficult to predict. I always have had an underlying concern that he is going to harm himself.
I am aware that he has already harmed himself by burning his leg. I understand that he tied his leg to the metal frame of his bed and that he pushed more materials into a rubbish bin he had set alight so that it would keep burning.
I have seen his injuries which required skin grafts and have left a nasty scar and it appears that he does not walk properly. The skin is all taut and it appears to me that it will require physiotherapy. He has done real damage to the limb below the knee. The scar is from the knee to the ankle and it looks like tree bark on the whole lower leg. He did this he said because psychiatric services wouldn’t listen to him.
He appears to me to have no consistency in his ongoing medication. For example he was prescribed valium on one weekend and the following week or two he was prescribed imovane for a week. Prior to this in the space of eight months he was not prescribed any medication.
I am aware that previously Doctor T had supplied him with a letter to excuse him for going to Court because of the extreme stress that he experiences. Yet he was given no on-going medical assistance.
…
He does not present any differently now to when he first came to prison. When he socialises he appears to be just passing the time but does not commit himself to being in prison. It becomes part of the process. He says that he can’t do prison and that he will go out in a box. He appears not to form a commitment to the sentence, the prisoners or the prison. While he at times is compliant he appears to remain alienated. He does accept that he is placed in prison but he is alienated from the purpose.
I see him at least three times a week to maintain his welfare. He remains unpredictable with possible risk of self harm.
…
My view is that [he] has been uncommitted to prison. He remains somewhat unpredictable with possible risk of self harm. He is not on any ongoing medication which concerns me. He sleeps poorly and cries continually and is in a constant state of despair. The institution of the management plan has given him a sense of some responsibility. He however remains in a highly vulnerable state.[12]
[12]Affidavit of Andrea Hilton dated 15 January 2009, [5]-[10], [12], [13] and [18].
We received this additional evidence, both because it shed further light on a matter which the judge dealt with in sentencing and because of its potential relevance to the discretion of this Court to dismiss a Director’s appeal even where the sentence is shown to be manifestly inadequate. Having regard to the uncontested evidence about WRJ’s mental condition, it can hardly be doubted that his mental illness means that imprisonment will ‘weigh more heavily on [him] than it would on a person in normal health’.[13] It is difficult to imagine how someone in his condition would cope with the rigours of prison life. There is, moreover, evidence that his condition has worsened because of being in custody.[14] The account of self-harm speaks for itself.
[13]See R v Verdins (2007) 16 VR 269; R v Tsiaras [1996] 1 VR 398; R v Vardouniotis [2007] VSCA 62.
[14]R v Verdins (2007) 16 VR 269.
Conclusion
Before pronouncing sentence, the judge said this:
I also take into account your severe depression, and further the fact that there has been a substantial undue delay in bringing these counts before this court.
I insist, and I tell you now, I have substantially reduced the sentence I would otherwise impose because of all of those factors.
Having said this, it must be observed that these offences were a despicable breach of trust. Young [P], your niece, was entitled to look up to you, trust you and rely upon you, to support her in her formative years.
You, sir, have grossly breached that trust. This offending persisted over a lengthy period. that is, at least eight years. You commenced interfering with [P] when she was eight years of age and your offending continued until she was 16.
I take into account that you vigorously deny the offences and that you understandably have not displayed remorse for any of those offences.
[P] has filed a victim impact statement, wherein she has said that this behaviour of yours has, and I read from her statement. She says, “This affected me a lot. I began to have nightmares and I couldn’t sleep properly. I drank a lot. I didn’t get to achieve my dreams in life. I’ve done a lot of things that I regret. I’ve turned on my family, I just can’t be the person I wanted to be.”
Then later she says, “I drank a lot. I started to lower myself and even turned to chroming. It really affected me mentally. Not even counselling really helped. I felt lost. Not on earth. Every day was a day of looking over my shoulder, watching everyone around live a good life.[15]
[15]The Queen v WRJ (Reasons for Sentence) (Unreported, County Court of Victoria, Judge Pilgrim, 5 May 2008) [35]–[36] [57]–[63].
30 It can be seen that his Honour was equally alive to the gravity of the offending as to the powerful mitigating factors. His Honour had presided over WRJ’s trial and
was exceptionally well placed to determine the appropriate sentence. Although the sentences imposed were low indeed, we are not in the end persuaded that they should be interfered with. We reach this conclusion having regard to the highly exceptional mitigating circumstances and to the fact that any resentencing would have to be reduced to take account of the exposure to double jeopardy which a Director’s appeal creates.
NEAVE JA:
I have had the advantage of reading the draft judgment of Maxwell P and Vincent JA in this matter. Unfortunately I cannot agree with the conclusion they have reached.
I acknowledge that, in sentencing WRJ, there were very significant mitigating factors which the learned judge had to take into account. These included the substantial delay in prosecuting the offences, WRJ’s prospects of rehabilitation, the effect of his offending becoming known within the Aboriginal community and his very severe depression after the allegations were made public. In my opinion, however, the sentence of one year and six months imposed on count 12 (the second count of sexual penetration) and the order requiring cumulation of only six months of that sentence, was manifestly inadequate.
The circumstances of the offending are described in the joint judgment of Maxwell P and Vincent JA. WRJ was aged 23 when he committed the offence covered by count 12. That count was not an isolated example of offending - WRJ had subjected the victim to numerous other incidents of sexual abuse for some years. He took advantage of the victim’s vulnerability and abused the trust placed in him. WRJ continues to deny having committed the offences and cannot, therefore, express remorse for what he has done. It is a tragedy that a person who was, according to the report of psychologist Kathleen O’Callaghan, previously ‘one of the most respected, educated and helpful’ members of the Aboriginal community, has
offended in this way. But the victim continues to feel the effects of the offence. It is significant that she was sexually penetrated by a member of her own community, who should have protected her against sexual abuse, rather than taking advantage of her vulnerability.
Having regard to the circumstances in which count 12 was committed, I would accept the Director’s submission that the appropriate sentencing range for that count was three to four years’ imprisonment. His Honour cumulated only a third of the sentence of one year and six months’ imprisonment imposed in relation to count 12. I consider that it would have been appropriate to cumulate at least half of that sentence, which as I have said was, in my view, manifestly inadequate. Even when regard is had to the principle of double jeopardy, I consider that a higher sentence should have been imposed and that the total effective sentence was also manifestly inadequate.
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