Duncan (A Pseudonym) v The Queen

[2014] VSCA 215

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0082

MARK DUNCAN (A PSEUDONYM) [1]

Applicant

V

THE QUEEN

Respondent

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

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JUDGES:	PRIEST and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	9 September 2014
DATE OF JUDGMENT:	9 September 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 215
JUDGMENT APPEALED FROM:	DPP v Duncan (Unreported, County Court of Victoria, Judge Wilmoth, 11 April 2014)

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CRIMINAL LAW – Sentence – Indecent assault – Attempted indecent assault – Use a carriage service to transmit child pornography – Possession of child pornography – Confusing Crown opening leading to factual errors in sentencing – Sentences not in accordance with current sentencing practices – Crown concessions as to error – Application for leave to appeal granted – Appeal allowed – Applicant resentenced.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J McLoughlin	Victoria Legal Aid
For the Crown	Ms S Borg	Mr C Hyland,  Solicitor for Public Prosecutions

PRIEST JA
BEACH JA:

Introduction and background

1. The applicant seeks leave to appeal against sentences imposed upon him by a County Court judge on 11 April 2014.  Following pleas of guilty to five charges of indecent assault, one charge of attempted indecent assault, one charge of using a carriage service to transmit child pornography and one charge of being in possession of child pornography, the applicant was sentenced by the judge as follows:

Charge on Indictment	Offence		Maximum			Sentence		Cumulation
1.	Indecent assault [s.44(1) of the Crimes Act 1958]		5 years’ imprisonment [s.44(1) of the Crimes Act 1958]			3 years’ imprisonment		Base
2.	Indecent assault [s.44(1) of the Crimes Act 1958]		5 years’ imprisonment [s.44(1) of the Crimes Act 1958]			3 years’ imprisonment		12 months
3.	Indecent assault [s.44(1) of the Crimes Act 1958]		5 years’ imprisonment [s.44(1) of the Crimes Act 1958]			3 years’ imprisonment		12 months
4.	Indecent assault [s.44(1) of the Crimes Act 1958]		5 years’ imprisonment [s.44(1) of the Crimes Act 1958]			3 years’ imprisonment		12 months
5.	Attempted indecent assault [s.44(1) of the Crimes Act 1958 and the common law]		5 years’ imprisonment [s.472(2) of the Crimes Act 1958 as in force at the relevant time]			2 years’ imprisonment		6 months
6.	Indecent assault [s.44(1) of the Crimes Act 1958]	5 years’ imprisonment [s.44(1) of the Crimes Act 1958]			3 years’ imprisonment		12 months
7.	Use a carriage service for child pornography material [s.474.19(1)(a)(iii) of the Criminal Code Act 1995 (Cth.)]	15 years’ imprisonment [s.474.19(1) of the Criminal Code Act 1995 (Cth)]			12 months’ imprisonment		—
8.	Possession of child pornography [s.70(1) of the Crimes Act 1958]	5 years’ imprisonment [s.70(1) of the Crimes Act 1958]			2 years’ imprisonment		6 months
Total Effective Sentence (combined):				8 years’ 3 months’ imprisonment – 3 months of the sentence pertaining to Charge 7, the Commonwealth charge, to be served immediately.  All State sentences ordered to be served 3 months after the commencement of the Commonwealth sentence.
Non-Parole Period (combined):				5 years’ imprisonment – being 3 months of the Commonwealth sentence, charge 7, and 4 years and 9 months of the sentence relating to all State charges.
Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991:				Nil
6AAA Statement: 10 years’ imprisonment with a non-parole period of 7 years.
Other relevant orders: Sentenced as a Serious Sexual Offender in respect of charges 3, 4, 5, 6 and 8 pursuant to s 6E of the Sentencing Act 1991. Order for Sex Offender Registration pursuant to s 34 of the Sex Offenders Registration Act 2004 with a reporting period of life. Forensic sample order pursuant to s 464ZF(2) of the Crimes Act 1958.

1. The indecent assaults and attempted indecent assault were committed by the applicant between March 1981 and April 1984.  The victim of those offences was the applicant’s daughter, who at the time of this offending was aged between 10 and 13 years.  The child pornography offences were committed in 2012 and 2013. 

1. At the time he was sentenced, the applicant was 73 years old and in poor health, suffering from heart disease, prostate cancer and significant osteoarthritis.  His cognitive capacities were also in decline.

1. The indecent assaults were variously constituted by a touching of the victim’s vagina under her underpants (charge 1), digital penetrations of the victim’s vagina (charges 2 and 3), pinching and rubbing the victim’s nipples (charge 4) and rubbing Vicks on the victim’s upper chest and breasts (charge 6).  The attempted indecent assault was constituted by the applicant walking his fingers up the victim’s leg to her underpants and then pushing his finger underneath her underpants when the applicant was interrupted by his wife, the victim’s mother (charge 5).  In addition to these offences, there were a number of uncharged acts which occurred before and after the charged acts.  Some of the uncharged acts involved additional occasions of the digital penetration of the applicant’s daughter.

1. The conduct constituting charge 7 involved the applicant forwarding 7 pornographic images to a police officer in the United States, who was then impersonating a 13 year old girl.  The conduct constituting charge 8 involved the possession of 1,655 picture files and four video files on a computer and 469 picture files on a memory stick.  The judge found that most of this matter was classified at the lower levels of seriousness according to the scale commonly used in prosecutions for such matters, although two of the files were classified in the most serious level.[2]

   [2]Level 6: anime, cartoons, comics, computer generated graphics, drawings, audio and text depicting/describing children engaged in sexual poses or activity.

1. The applicant seeks leave to appeal against his sentence on five proposed grounds of appeal.  In his proposed grounds of appeal the applicant contends that:

(a)       the sentencing discretion miscarried because of a number of factual errors made by the sentencing judge;

(b)      the sentencing judge erred in her treatment of the mitigating significance of the applicant’s age and ill health;

(c)       the sentencing judge erred in failing to take into account sentencing practices at the time of the commission of the offences covered by Charges 1 to 6;

(d)      the sentencing judge erred in failing to give mitigating weight to the applicant’s service to the community; and

(e)       the individual sentences, the total effective sentence and the non-parole period are manifestly excessive.

1. The respondent concedes that there is a material difference between the objective gravity of the actual allegations giving rise to charge 6 and the basis upon which the judge sentenced the applicant, which is not reflected in the sentence imposed.  Accordingly, specific error is conceded in relation to the sentence on charge 6.  Further, the respondent concedes that ‘it is somewhat surprising that in the sentences she imposed her Honour did not distinguish between the penetrative conduct constituting charges 2 and 3 on the one hand, and the significantly less serious behaviour on the applicant’s part constituting charges 1 and 4, on the other hand’.  Additionally, the respondent concedes that the sentences imposed on charges 1, 4, 5 and 6 do not conform to current sentencing practices for the offences constituting those charges (current sentencing practices meaning ‘practices which now apply, having regard to the maximum sentence applicable to the offence when committed’).[3]

   [3]Bavage v The Queen [2012] VSCA 149, [10]; and Stalio v The Queen (2012) 223 A Crim R 261, 270 [11], 276 [39] and 283 [78].

Analysis

1. The judge sentenced the applicant on charge 6 on the basis that charge 6 was constituted by the applicant’s daughter masturbating the applicant, whereas charge 6 was the occasion when the applicant rubbed Vicks on his daughter’s upper chest area and breasts.  It would appear that the judge’s error arose from a mistake made by the prosecutor during opening when the prosecutor confused the facts of charge 6 with the facts of an uncharged act.  The Crown’s revised written case concedes that this was not the only confusion that occurred during the course of the prosecutor’s opening of the matter to the judge. 

1. In the light of the Crown’s concessions concerning the errors made in the sentencing process (which concessions we think are correctly made), the sentences imposed upon the applicant in respect of at least charges 1, 4, 5 and 6 must be set aside.  In the circumstances, the sentencing discretion is re-opened in respect of all the sentences imposed, and orders made, by the judge in respect of the applicant.

1. Notwithstanding the seriousness of the applicant’s offending, there were (and are) significant matters in mitigation that must be taken into account in sentencing the applicant.  These include:

(a)the applicant’s age and poor health;

(b)the applicant’s insight and remorse;

(c)the applicant’s early plea of guilty, following his cooperation with the police during which he admitted matters additional to those in respect of which complaint had been made; and

(d)the applicant’s previous good standing in the community, and in particular, his conduct professionally as a fire fighter involving the receipt of several awards and commendations at various times. 

1. In all of the circumstances, we would re-sentence the applicant.  With respect to the first two charges, there is a legislative direction that any sentence passed on them is to be concurrent with other sentences unless otherwise directed.[4]  Given that the applicant is to be sentenced as a serious sexual offender from charge 3 onwards, however, there is a legislative direction that sentences passed on charges 3 to 8 are to be served cumulatively unless otherwise directed.[5]  Strict compliance with the legislative regime is thus cumbersome.  Our overall intention, however, is reflected in the following table:

   [4]Sentencing Act 1991 (Vic) s 16(1).

   [5]Sentencing Act 1991 (Vic) s 6E.

Charge on Indictment	Offence		Maximum		Sentence		Cumulation
1.	Indecent assault [s.44(1) of the Crimes Act 1958]		5 years’ imprisonment [s.44(1) of the Crimes Act 1958]		12 months’ imprisonment		4 months
2.	Indecent assault [s.44(1) of the Crimes Act 1958]		5 years’ imprisonment [s.44(1) of the Crimes Act 1958]		2 years’ imprisonment		Base
3.	Indecent assault [s.44(1) of the Crimes Act 1958]		5 years’ imprisonment [s.44(1) of the Crimes Act 1958]		2 years’ imprisonment		12 months
4.	Indecent assault [s.44(1) of the Crimes Act 1958]		5 years’ imprisonment [s.44(1) of the Crimes Act 1958]		12 months’ imprisonment		6 months
5.	Attempted indecent assault [s.44(1) of the Crimes Act 1958 and the common law]		5 years’ imprisonment [s.472(2) of the Crimes Act 1958 as in force at the relevant time]		6 months’ imprisonment		2 months
Charge on Indictment	Offence		Maximum		Sentence		Cumulation
6.	Indecent assault [s.44(1) of the Crimes Act 1958]	5 years’ imprisonment [s.44(1) of the Crimes Act 1958]		12 months’ imprisonment		6 months
7.	Use a carriage service for child pornography material [s.474.19(1)(a)(iii) of the Criminal Code Act 1995 (Cth.)]	15 years’ imprisonment [s.474.19(1) of the Criminal Code Act 1995 (Cth)]		12 months’ imprisonment		—
8.	Possession of child pornography [s.70(1) of the Crimes Act 1958]	5 years’ imprisonment [s.70(1) of the Crimes Act 1958]		2 years’ imprisonment		6 months

1. These sentences and orders for cumulation make a total effective sentence of five years’ imprisonment. We will fix a non-parole period of three years’ imprisonment. While the judge delayed the commencement date of the State sentences (the sentences on Charges 1–6 and 8), we would not delay the commencement date of any of the sentences we will impose. Further, we do not pause here to analyse the power of the Court to delay the commencement date of a State sentence in the face of s 17 of the Sentencing Act 1991. 

Conclusion

1. The application for leave to appeal against sentence must be allowed. The appeal is allowed and the applicant is re-sentenced as we have foreshadowed. In so far as it may be necessary, pursuant to s 6AAA of the Sentencing Act 1991 we declare that but for the applicant’s plea of guilty we would have imposed a total effective sentence of seven years’ imprisonment with a non-parole period of five years.

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