E D v The Queen
[2011] VSCA 397
•30 November 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2010 0123 | |
| ED | Appellant |
| v | |
| THE QUEEN | Respondent |
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JUDGES: | REDLICH and HARPER JJA and ROBSON AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 26 July 2011 | |
DATE OF JUDGMENT: | 30 November 2011 | |
MEDIUM NEUTRAL CITATION: | [2011] VSCA 397 | |
JUDGMENT APPEALED FROM: | R v [ED] (Unreported, County Court of Victoria, Judge Lewitan, 8 April 2010). | |
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CRIMINAL LAW – Application for leave to appeal sentence – Whether sentence was manifestly excessive – Comparable cases as a guide to the ‘range’ – Principles of sentencing in child sex offences – Total effective sentence of nine and a half years’ imprisonment with non-parole period of seven and a half years not manifestly excessive – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr J D Williams | Victoria Legal Aid |
| For the Crown | Mr A J Grant | Mr C Hyland, Solicitor for Public Prosecutions |
REDLICH JA:
I agree for the reasons Robson AJA has given that the appeal should be dismissed.
HARPER JA:
I agree with Robson AJA.
ROBSON AJA:
The appellant pleaded guilty in the County Court to two counts. Count 1 alleged that the appellant maintained a sexual relationship with a child under 16.[1] The victim of this offence was the appellant’s stepdaughter. The offending was particularised in the presentment as follows:
[1]s 47A Crimes Act 1958.
… On at least three occasions the applicant took part in one or more of the following acts with the complainant which consisted of:
a) the kissing on the mouth of the complainant;
b) the touching of the vagina of the complainant with his hand;
c) the touching of the vagina of the complainant with his penis;
d) the introduction of his penis into the vagina of the complainant;
e) the introduction of his fingers into the vagina of the complainant; and
f) the touching of the vagina of the complainant with his tongue.
Count 2 alleged that the appellant knowingly possessed child pornography. The appellant pleaded guilty to both counts.
The appellant admitted nine previous convictions from six court appearances. None of these prior convictions related to sex offences or offences against the person. The appellant had not previously received a sentence of imprisonment.
The appellant was sentenced as follows:
Count on Presentment
Offence
Maximum penalty
Sentence
Cumulation
1.
Maintain sexual relationship with child U16, [s 47A Crimes Act1958]
25 years
9 years
Base
2.
Possess child pornography, [s 70 Crimes Act1958]
5 years
9 months
6 months cumulative
Total Effective Sentence:
9½ years
Non parole period:
7½ years
Pre-sentence detention declared:
22 days
6AAA Statement: The learned trial judge stated that the sentence she would have imposed if the appellant had been convicted of these offences after trial would have been 12 years on Count 1 and 12 months on Count 2, with the appellant becoming eligible for parole after serving 10 years of that sentence.
The appellant sought leave to appeal against sentence on the grounds:
1that the sentence is manifestly excessive;
2that the learned trial judge erred in her assessment of the impact on the victim of the appellant’s offending;
3that the learned trial judge erred in regarding protection of the community, as the predominant consideration in sentencing.
The application for leave to appeal
On 1 April 2011, Ashley JA gave the appellant leave to appeal on the sole ground that the sentence on Count 1 was manifestly excessive.[2]
[2]s 315(1) Criminal Procedure Act 2009.
The trial judge’s findings of fact relating to the offence Count 1
The appellant married EL in 2001. The appellant’s wife had two children, BP and the complainant, from a previous relationship. The appellant’s stepdaughter,
the complainant, was born on 28 April 1994 and was between 11 and 14 years old at the relevant times.
The appellant was born on 12 January 1972 and was between 32 and 37 years of age when he committed the offences.
The appellant maintained a sexual relationship with the complainant between 1 October 2005 and 31 January 2009. During that time, the appellant engaged in various sexual acts at the family home in Rosebud. On various occasions, the appellant was observed kissing, including tongue-kissing, the complainant. When the complainant was 11 years old, the appellant put his hand down the front of the inside of the complainant’s pants and touched her vagina.
In about December 2006, when the appellant’s wife was away from home receiving medical treatment for cancer, the appellant pulled down the complainant’s pants and underpants. The appellant took off his trousers and underpants and lay on top of her. The appellant rubbed his penis up and down on the complainant’s vaginal lips. The appellant did this to the complainant every day until his wife returned home six weeks later.
On one occasion in 2007, when the complainant was drunk, the appellant introduced his finger into the complainant’s vagina. The appellant then licked the complainant’s vagina.
From the start of 2006, when the complainant was 11 years old, the appellant inserted his penis into the complainant’s vagina.
Until September 2006, penile/vaginal sex occurred in the complainant’s bedroom. The appellant started to give the complainant alcohol and then had penile/vaginal sex with the complainant twice a week in the shed at the back of the family home. After September 2006, the penile/vaginal sex occurred three to four times a week.
The appellant also took the complainant with him to his brother-in-law’s house in Rosebud to baby-sit his nephew, who was four years old. Penile penetration of the vagina occurred on those occasions.
The last occasion of sexual intercourse was in January 2009. The complainant had returned from her aunt’s home. She went to the rear shed to get a smoke from the appellant. The appellant locked the door, put a blanket down and had penile/vaginal sex with the complainant.
By this time, the complainant had a boyfriend. The complainant commenced disclosing the sexual abuse to him, and he encouraged the complainant to report it to the police.
In May 2009, when cleaning out the appellant’s wardrobe, the complainant and her boyfriend found photographs of the vaginal area of a young girl. The complainant believes they were photographs that the appellant took of her when she was drunk. In some other photographs, another person’s hand is touching the girl’s vagina.
On 20 May 2009, the complainant and her boyfriend went to the toolshed and found 14 DVDs. The boyfriend put some of the DVDs into the computer and saw child pornography. The complainant established that two of the 14 DVDs contained child pornography.
Initially, the complainant disclosed instances of intercourse in the VATE tape, but not the prior history of sexual abuse. At first, the complainant did not make full disclosure of the abuse she had endured, as her mother was then in palliative care suffering from terminal cancer. The complainant’s mother blamed herself for what had happened to the complainant, as the mother had married the appellant. Further disclosures were made in the complainant’s statements following the VATE tape.
The trial judge’s findings on the personal circumstances of the offender
At the time of sentencing, the appellant was 38 years old. He was born in Melbourne in 1972. The appellant’s father was a fire fighter and regularly absent from the home. The appellant did not have a realistic relationship with his father, who was violent towards him. The appellant has one sister, but he does not get along with her and has no contact with her.
Because the appellant’s father was a fire fighter, the appellant’s family moved frequently. The appellant attended five different primary schools. In the mid 1980s the appellant’s family moved to Traralgon. The appellant attended Traralgon Technical College from Years 7 to 9, but he did not perform well and did not enjoy school. The appellant did not have any friends at school because of the constant moves. Whilst at school, the appellant was treated by some psychiatrists for attention deficit disorder.
When the appellant was 13 years old, he started drinking alcohol. During his teenage years, the appellant developed a drinking habit and drank a slab of full strength beer a day.
When the appellant was 20 years old, he married his first partner. The marriage lasted four years. The appellant’s wife slept with other men during the relationship. His wife left him in 1996. The appellant felt humiliated.
During the first year of the appellant’s relationship with the complainant’s mother, the complainant’s mother was diagnosed with cancer. The complainant’s mother underwent three operations, including a full mastectomy. The appellant self-medicated with alcohol.
At the sentencing hearing, the appellant’s counsel submitted that the appellant was a person who had a very significant alcohol problem that had persisted for a long period of time. The appellant’s counsel also submitted that this serious drinking problem had affected the appellant’s day-to-day functioning. The appellant’s counsel conceded that although the appellant’s drinking affected his judgment, it did not diminish the appellant’s criminal responsibility.
The appellant admitted to prior convictions before the trial judge. He admitted to eight convictions, involving four court appearances between 1998 and 2003. The trial judge accepted the appellant’s counsel’s submissions that the prior offending did not involve violence or offences of a sexual nature.
At the time of sentencing, the appellant had been in no further trouble since these offences. The trial judge was told of the appellant’s desire to cure his alcohol problem and accepted that was the case, although there was little before her to suggest that the appellant would be able to do so. Her Honour said that in fixing an appropriate sentence, she must seek to maximise such chances of the appellant’s rehabilitation as there may be.
Sentencing
The trial judge said that, as well as the matters personal to the appellant that she had referred to, she must also take into account such matters as deterrence, especially general deterrence, which she said was of considerable importance in a case such as this. Her Honour said she must consider the question of the protection of the members of the community from the appellant and bear in mind the likelihood of him re-offending. Her Honour also said she was called upon by the Sentencing Act 1991 to manifest the community’s denunciation of the appellant’s conduct and generally to impose a just punishment.
Her Honour said that the appellant’s counsel conceded that a prison sentence was called for in this case. Her Honour said that counsel asked her to consider the stress, distress and terrible circumstances the appellant was facing. The appellant’s counsel submitted that the appellant’s response to troubling circumstances was to self-medicate. The appellant’s counsel submitted that the appellant mistook and misused the affection and tenderness shown to him by the complainant, and that the physical contact then escalated. Counsel conceded that although this provides some explanation for the appellant’s conduct, it did not justify that conduct.
Her Honour said that the offences were, without doubt, serious offences. The period of abuse extended over four years. The victim was between 11 and 14 years old at the time. There was enormous age and power imbalance during the abuse. Alcohol was used to disinhibit the complainant. The trial judge said that in all the circumstances she had no alternative to the imposition of a custodial sentence.
Investigation and prosecution
The appellant was interviewed by police on 7 May 2009 and made qualified admissions to maintaining a sexual relationship with the complainant. He was interviewed again on 10 June 2009. He gave a ‘no comment’ record of interview.
The appellant indicated his plea of guilty prior to the committal mention in September 2009. On 16 March 2010, he entered a plea of guilty to a three count presentment which included a count of persistent sexual abuse of a child under 16 (Count 2). Following the conclusion of the plea hearing, the trial judge established that a prior application of the transitional provisions pertaining to the Crimes (Sexual Offences) Act2006 contained in s 606A of the Crimes Act meant that the conduct that was the subject of Count 2 should have been included in the maintain sexual relationship count (Count 1). Her Honour gave the appellant leave to vacate his plea and the Crown leave to file over a fresh presentment to correct this error. The appellant pleaded guilty to the filed over presentment on 17 March 2010.
Ground 1: The sentence imposed on Count 1 (maintain sexual relationship with a child under 16) is manifestly excessive
Relevant principles
The imposition of a sentence by a sentencing judge is made in the exercise of a discretion vested in the sentencing judge.[3] Before this Court can interfere with a sentence on the ground that it is manifestly excessive, the Court needs to be persuaded that the sentence imposed by [the] judge was wholly outside the range of sentencing options available to her or him.[4]
[3]House v The King (1936) 55 CLR 499, 504 (Dixon, Evatt and McTiernan JJ); Carroll v The Queen (2009) 254 ALR 379, 381.
[4]R v Boaza [1999] VSCA 126, [42] (Winneke P), approved in R v MacNeil-Brown [2008] VSCA 350, [9]; see also Hudson v The Queen [2010] VSCA 389.
Thus the issue for determination is whether this Court is persuaded by the appellant that the sentence of nine years on Count 1 imposed by the trial judge was upon the facts wholly outside the range of sentencing options available to the trial judge. The appeal does not otherwise involve any alleged error on the part of the trial judge in sentencing the appellant.
The nature of the offence
Prior to 1 December 2006, the offence of ‘persistent sexual abuse of child under the age of 16’ was known as ‘maintaining a sexual relationship with a child under the age of 16.’ Section 47A of the Crimes Act 1958 that introduced the offence commenced operation on 5 August 1991. It was apparent from the debate that accompanied the second reading of the Bill[5] that the offence was enacted to overcome problems that can arise when a young child, who has been the subject of repeated sexual abuse by the same person over a lengthy period, is unable to identify with any precision the occasions upon which particular sexual acts occurred.[6]
[5]Hansard 13-20 March 1991, 506-517; 652-668.
[6]R v Macfie [2000] VSCA 173, [33] (Winneke P, Chernov and Brooking JJA).
Similar cases
Reference was made in submissions to sentences imposed in ‘similar’ cases. In Hudson v The Queen[7] this Court has held that comparable cases may not be used for the purpose of trying to identify a sentence that is a fair comparison with the circumstances of the instant case. The sentence under challenge will not fall outside the range because there are similar cases that are arguably more serious that have attracted the same penalty or cases no less serious which have attracted lesser penalties.[8]
[7][2010] VSCA 389.
[8][2010] VSCA 389, [26].
This Court has held that comparable sentences are only a guide as to the ‘range.’ In Hudson v The Queen[9] the Court said:
[27] The selection of a sentence involves the exercise of a judicial discretion which is informed by the circumstances in which the offence was committed and the character, antecedents and conditions of the offender. It is not possible to say that a sentence of a particular duration is the only correct or appropriate penalty to the exclusion of any other penalty. The method of instinctive synthesis will by definition produce outcomes upon which reasonable minds will differ. For that and other reasons, counsel are precluded from submitting that a specific sentence should be imposed.
[28] Sentences imposed in ‘like’ cases provide some indication of the range that is open in the proper exercise of the discretion. They will indicate, subject to relevant discretionary considerations, the order of the sentence that might be expected to be attracted by a certain type of offender who commits a certain type of offence.
A general overview of sentences imposed for offences of a similar character will play a part in informing the ‘instinctive reaction’ when a court is asked to consider whether a sentence is manifestly inadequate or excessive. They are an indicator of ‘current sentencing practices’ which is one factor that the court must consider under s 52 of the Sentencing Act 1991. By facilitating the identification of the range, similar types of cases serve the criminal justice objective that sentencing should be systematically fair and consistent. They advance the underlying value of equality under the law.
[29] ‘Like’ cases can only, at best, provide a general guide or impression as to the appropriate range of sentences. In that context it has been said on many occasions that ‘comparable cases’ can only provide limited assistance to this Court. They may however be used in search of unifying principles. That was not the use to which counsel sought to employ them here. (Citations omitted)
[9][2010] VSCA 389, [27]–[29].
The appellant’s submissions
In the course of the plea, the Sentencing Advisory Council ‘Sentencing Snapshot 82: sentencing trends in the higher courts of Victoria: Maintain a sexual relationship with a child under 16’ (Snapshot 82) was handed up to the judge. Her attention was drawn to figures four and five in Snapshot 82.
The appellant submits that the sentence imposed does not accord with current sentencing practices as disclosed by Snapshot 82. While it is acknowledged that there is not a large sample size of cases involving this count,[10] the median sentence of imprisonment for the count is five years and three months: only two people received the same sentence as the appellant, and only one received a sentence greater (ten years). It is argued that this means that the sentence imposed in this case is in the top seven per cent of sentences imposed for this offence.
[10]Between 2003/2004 and 2007/2008, Sentencing Snapshot 82: sentencing trends in the higher courts of Victoria: Maintain a sexual relationship with a child under 16, Figure 1.
The appellant submits that those figures do not provide a foundation for the observation by the judge on the plea that sentences for this offence are generally increasing.[11]
[11] Transcript on plea page 33 lines 11 – 20.
The appellant referred to the judge’s response to the Crown’s suggested range of sentences (total effective sentence of nine – 12 years’ imprisonment and non-parole seven and a half – nine), and pointed out that her Honour had said that the suggested range was higher than the sentencing statistics would lead one to expect and had sought guidance from the Crown as to comparable cases. The appellant says that in response to this request the Crown relied upon two cases, DPP v DZ[12] and DPP v DDJ,[13] while acknowledging that they were not directly comparable. It is submitted that these two cases do not support the Crown range of the sentence imposed on Count 1. It is further submitted that DPP v DZ and DPP v DDJ are significantly worse offences in which the offenders were sentenced more leniently than the appellant, even having regard to the application of the double jeopardy principle.
[12][2009] VSCA 301.
[13][2009] VSCA 115.
DPP v DZ involved a successful Director’s appeal. The offender pleaded guilty to three counts of maintaining a sexual relationship with a child under 16. Three daughters of the offender’s de facto wife were the victims of the offences.
The sentencing judge imposed a total effective sentence of 12 years (individual counts of five, five and six years). The Court found that the trial judge had erred in treating each of the three counts as representative counts. The Court was thus required to re-sentence the offender. The Court said, nevertheless, that they considered that the sentence imposed on the offender was manifestly inadequate. The Court was taken to Sentencing Snapshot 82, as in this case.
The offender was re-sentenced to eight, six and a half and six years’ imprisonment on the individual counts, a total effective sentence of 14 years and a non-parole period of 11 years. If not for double jeopardy and the respondent’s guilty plea, the Court said it would have imposed a total effective sentence of 16 years’ imprisonment.
The three victims were aged 11, 11, and 10 respectively when the abuse against each of them began. The offender was 39–42 when the abuse took place. The abuse in total extended over three years and nine months. The abuse involved diverse sexual acts. The offences were committed in the victim’s home and while the girls’ mother was away from home.
The appellant says that DPP v DZ is in many ways more serious than the case before us, as it involved the use of threats and force.[14]
[14]Appeal transcript 12.
The appellant submits that in DPP v DDJ, this Court allowed the possibility that current sentencing practices for the offence of maintaining a sexual relationship with a child might be inadequate but, in the absence of argument to that effect, did not form a concluded view.[15]
[15]DPP v DDJ [2009] VSCA 115, [67]–[72].
DPP v DDJ also involved a successful Director’s appeal. The offender pleaded guilty to one count of maintaining a sexual relationship with a child under 16 and one count of producing child pornography. The offender was sentenced to five years’ imprisonment on the relationship count and two years on producing pornography with a total effective sentence of eight months and a non-parole term of three years.
The Court of Appeal held this sentence to be manifestly inadequate by current sentencing practices. The offender was re-sentenced to seven years on the relationship count and three years on the pornography count with a total effective sentence of eight years with non-parole period of five years and six months. That sentence had been reduced to take account of double jeopardy.
The offender had a sexual relationship with a 14 year old girl for some four months. At the time, the offender was 39 years of age. He made pornographic video of her carrying out a large range of sexual acts.
At the request of the Court, counsel for the Director of Public Prosecutions provided a sentencing range that, according to the Director, was available to the trial judge for the offences.
The Director submitted a sentencing range on maintaining a sexual relationship with a child under 16 of nine to 12 years’ imprisonment. The Court held that the range put forward by the Director could not be justified on the basis of current sentencing practices. The Court also held that the current sentencing practices for the offence were inadequate. They said that the range of sentences being imposed appeared not to reflect the very high maximum that Parliament has fixed for the offence. They held, however, that they were not at liberty in re-sentencing the offender to disregard current practices.
The appellant says that a significant difference between DPP v DDJ and the current case is that the offender in DPP v DDJ had prior convictions for indecent assault in aggravating circumstances for which he served a term of imprisonment.
The appellant concedes that both DPP v DZ and DPP v DDJ are of limited utility. Nevertheless, the appellant submits that DPP v DZ and DPP v DDJ are significantly worse offences in which the offenders were sentenced more leniently than the appellant even having regard to the application of the double jeopardy principle.
The appellant seeks to characterise the features of both DPP v DZ and DPP v DDJ into those that are worse than those in the appellant’s case, and those that are comparable or better. He submits that there is no reported decision relevantly comparable to the appellant’s case. As discussed below, this is contested by the Crown which relies on a significant number of cases.
The appellant says that the Crown did not contend on the plea that the sentencing judge ought sentence without or with qualified regard to current sentencing practices and the trial judge did not purport to do so. He says that her Honour did not in her reasons for sentence avert to current sentencing practices or explain her departure from them.
The appellant concludes that in respect of Count 1, the sentence is outside the range of sentences properly available to the judge, the appeal should be allowed, and the appellant should be re-sentenced with there being a reduction of the head sentence and non-parole period.
The Crown’s submissions
The Crown contends that the offence of maintaining a sexual relationship with a child under 16 covers a wide range of conduct and that the use of statistics on sentencing relating to the current offence should be undertaken with caution. The Crown says that the offence applies to a broad range of prohibited conduct that extends from indecent activity that involves no contact (such as offending involving the offender exposing his or her genitals to a child) to more serious offending involving sexual penetration and incest (that was the offending involved in the current matter where the appellant was the stepfather of the complainant).
The Crown argues that the statistics relied upon by the appellant do not provide any analysis of the frequency of the conduct alleged in each case.
In response to the appellants’ contention that the two cases referred to by the prosecutor, DPP v DZ and DPP v DDJ, did not support the prosecutor’s suggested range open to the trial judge, the Crown agrees with the appellant that these two cases are of limited utility for the reasons set out in Hudson v The Queen.[16]Nevertheless, the Crown contends that the cases are of some assistance, particularly in identifying the current sentencing practices, particularly in DPP v DDJ, where a range of cases are analysed.
[16][2010] VSCA 332.
The Crown submits that in DPP v DDJ the offending was found to have many of the features also found in the present case, including a gross breach of trust, the disparity in age between the appellant and the victim, the victim’s vulnerability because of her mother’s illness and personal situation, and the use of alcohol to disinhibit the victim.
The Crown concedes that material difference with DPP v DDJ is that the offender had a relevant prior conviction for indecent assault for which he had previously been imprisoned. The Crown contends, however, that the present case is aggravated by the fact that the offending continued for a period of four years, three months (as compared to five months in DPP v DDJ).
The Crown says that in re-sentencing the offender for maintaining a sexual relationship with a child under 16 to a term of seven years’ imprisonment, the Court noted the significance of the persistent repetition of the sexual abuse. The Court said that:
…it is the persistence of the sexual relationship over time which is at the heart of the offence. The 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 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. On the other hand, it would be quite wrong to conclude that the offender’s culpability varies in direct proportion to the length of the relationship. Other factors may be of greater significance, such as the nature of the pre-existing relationship between the offender and the victim, and the nature and intensity of the sexual abuse which takes place.[17]
[17]DPP v DDJ [2009] VSCA 115, [32].
The Crown further relies on the fact that in sentencing the offender in DPP v DDJ to a term of seven years, the Court noted that the sentence was reduced to take account of the offender’s exposure to double jeopardy.[18]
[18]Ibid [ 66].
The Crown submits that in DPP v DZ the offending involved three victims. The Crown refers to the fact that the offending that was the subject of Count 1 in that case occurred over a period of three years, nine months and involved conduct that was equivalent to that alleged in the present case.[19] In re-sentencing the offender to a term of eight years’ imprisonment for Count 1, the Court noted that ‘the gravity of the offending in this case and the principles of general and specific deterrence require the imposition of very substantial sentences on the individual counts.’[20] The Court also noted that the increase in sentence would have been higher if the appellant in that case were not exposed to double jeopardy.[21]
[19]DPP v DZ [2009] VSCA 301, [14].
[20]Ibid [28].
[21]Ibid [30].
The Crown concedes that on the appellant’s plea it was not contended by the Crown that trial judge ought to sentence without regard, or without qualified regard to current sentencing practices.
As noted, the appellant argues that the judge did not avert to current sentencing practices or explain her reason for departing from them. The Crown submits that, during the course of the plea, her Honour was referred to the relevant Sentencing Snapshot and the cases noted above.
The Crown says that both cases[22] themselves involved a detailed analysis of current sentencing practices for the relevant offence. It submits that the trial judge did have regard to current sentencing practices when imposing the sentence, and that the sentence imposed was not outside the range of sentences properly available to her Honour.
[22]In particular DPP v DDJ, which involved a consideration of a large number of sentences imposed for the relevant offence.
The Crown submits that the frequency or persistence of the sexual abuse involved, the period over which the offending continued, and the nature of the sexual offending involved in the current case makes the current offence a very serious example of maintaining a sexual relationship with a child under 16.
A table was attached to the Crown’s written submissions that it says contains an analysis of sentences imposed for serious examples of the relevant offence for the period from 2007 to 2010. It is submitted that an analysis of the sentences imposed in those cases demonstrates that the sentence imposed by the trial judge did not depart from current sentencing practices and was not outside the range of sentences properly available. The cases referred to in that table are as follows.
R v RNT[23]
[23][2009] VSCA 137.
The appellant had pleaded guilty in the County Court to 12 counts of sexual offending. Count 12 was maintaining a sexual relationship with a child under the age of 16, the offender’s stepson. The trial judge imposed a sentence of nine years for that count. The Court of Appeal found a sentencing error in sentencing generally and the sentencing discretion was re-opened. The Court of Appeal re-sentenced the offender on the head count to nine years for maintaining a sexual relationship with a child under the age of 16.
The Crown submits that the offending in that case is of a similar level of culpability or seriousness as the current offending. It says that the age of the victim in RNT was similar to that in this case. The period of offending was 4½ years, slightly longer than this case. Without going into the details of the sexual acts involved in RNT they were no worse than in this case.
R v Dixon[24]
[24]Victorian County Court 14 August 2007.
In this case, the offender pleaded guilty. The sentence imposed was ten years. The period of the relationship between the offender and the victim was eight years. The victim was the offender’s daughter. This case is referred to in DPP v DDJ.
DPP v DZ and DPP v DDJ
The Crown’s submissions on these two cases have already been dealt with.
R v Mail[25]
[25][2008] VCC 1208.
In this case, the offender pleaded guilty to one count of maintaining a sexual relationship with a child under the age of 16 years. The duration of the offending was some five years and the victim was the daughter of the offender’s wife. Although there were a wide variety of sexual acts inflicted on the victim, they did not include penile penetration. The offender was sentenced to seven years with a non-parole period of five years. The relationship had lasted some 22 months. The victim was aged between 11 and 15 at the time of the offending. There were numerous instances of sexual impropriety.
The Crown submits that this was an example of less serious offending because of the different type of sexual activity engaged in than in the current matter. Nevertheless, the Crown says that a sentence of seven years was imposed for the maintaining of that sexual relationship.
R v Samy[26]
[26][2009] VCC 0148.
The offender was convicted following a trial of maintaining a sexual relationship with the victim. The offender was the boyfriend of the victim’s mother. The offending lasted for some five years, beginning when the victim was 10 until she turned 13. At the time, the offender was some 56 years of age.
The sexual improprieties involved rubbing, licking and fingering, but did not involve allegations of full penile penetration. Even so, the sentence imposed was nine years’ imprisonment with a minimum of six years.
R v Treseder[27]
[27][2009] VCC 1603.
The offender was a long-term friend of the parents of the victim, who was aged 12 when the sexual impropriety began. The conduct did not involve penile penetration. The offender was aged 40 odd years at the time. The offender was sentenced to seven and a half years with a minimum of six years. The Crown submits that the sentence was significant and provides some context to compare with the current case.
DPP v Eastwood[28]
[28][2010] VCC 0219.
The defendant pleaded guilty to maintaining a sexual relationship with the daughter of his girlfriend who was aged seven to nine during the offending. There was no allegation of incest in that case. The abuse continued over a period of two years and seven months. There was no allegation of penile penetration, but otherwise the sexual conduct was serious. The offender was sentenced to seven years’ imprisonment with a minimum of five years.
R v Venville[29]
[29][2009] VCC 1419.
The defendant was accused of maintaining a sexual relationship with a child under the age of 16. The complainant was the daughter of a friend of the accused. The abuse extended over a five year period, commencing when the complainant was six years of age. There was no allegation of penile penetration, but otherwise the sexual abuse was serious. The offender pleaded guilty. The offender was sentenced to a term of seven years’ imprisonment with a non-parole period of five years.
Appellant’s reply
Mr Williams, counsel for the appellant, had no response in relation to those cases. He said they speak for themselves. He contended that the difficulty still remains in terms of comparing this case with some of those cases because, he said, they were significant differences in a number of ways.
Incest
Although the Crown submitted that in this case the count of maintaining sexual relations with a child under 16 involved incest on the part of the appellant, the Crown did not take the Court to any cases dealing with sentencing in incest cases. Nor did we hear any submissions on the relevance of sentencing in incest cases to the ‘sentencing range’ in this case.
Since hearing this appeal, this Court has handed down DPP v DJ[30] in which the Court dealt with an appeal by the DPP against the alleged inadequacy of the sentence on an incest conviction. The Court included a table of sentences for incest ranging from 16 years (total effective sentence) to three years. The approach of this Court to incest does not raise any concerns in my mind that the sentence imposed in this case was manifestly excessive.
[30][2011] VSCA 250.
Sentencing for child sex offences
This Court has consistently held that sexual offending against children is a matter of utmost seriousness.[31] The maximum penalty of 25 years for the offence of maintaining a sexual relationship with a child under the age of 16 years reflects the gravity with which the community views sexual crimes against children.[32]
[31] DPP v DDJ [2009] VSCA 115, [36] (Maxwell P, Vincent and Neave JJA); DPP v DJ [2011] VSCA 250.
[32]R v Macfie [2000] VSCA 173, [49] (Winneke P and Chernov JA with whom Brooking JA agreed); DPP v DDJ [2009] VSCA 115, [36] (Maxwell P, Vincent and Neave JJA).
The observations by this Court in DPP v DDJ about sentencing where the abuse of a child is involved bear repeating:[33]
[33][2009] VSCA 115, [37]–]38].
[37]In 1992, Crockett J said in relation to sentencing for sexual abuse of a child:
The undoubted fact that in recent times there has been evidence of a rising tide of public indignation that such crimes had been committed and be seen to be anything but infrequent occurrences. The courts, and particularly this court, I consider bound to respond to the legitimate community concerns with the response placing emphasis on the need, in particular, to have sentences that give effect to specific and general deterrence.[34]
[34]R v Wayland (Unreported, Supreme Court of Victoria, Court of Criminal Appeal, Crockett, Southwell and Hampel JJ, 14 September 1992) 4.
[38] In 1993, Marks J in R v Sposito[35] said:
A society which fails to protect its children from sexual abuse by adults, particularly those entrusted with their care is degenerate. The offence of incest is particularly erosive of human relations and casts doubts upon the assumption that parents are the natural trustees of the welfare of their children. It ought to be unnecessary to recount the morbid features of incest, the most prominent of which include the exploitation by the stronger will of the adult of the weaker will of the child, the physical and psychological subordination of the child to the perverted indulgences of the adult, the gross breach of trust placed in the offender by the victim and the community and the irreparable fundamental damage to the victim.
[39]Subsequently, in R v Wakime,[36] Winneke P referred to ‘the tide of community anger and resentment towards crimes which involve the despoliation of children.’[37] Then in R v WEF[38] his Honour said:
This Court has frequently said that those who engage in sexually abusing young persons who are in their trust can expect to receive condign punishment. Such conduct is not only destructive of family values and all that they stand for but it is now well known that it has the capacity to destroy for its young victims their chances of enjoying a natural and healthy lifestyle.
[35](Unreported, Supreme Court of Victoria, Court of Criminal Appeal, Marks, Hampel and McDonald JJ, 8 June 1993). See also R v Ware [1997] 1 VR 647, 653 (Hedigan AJA).
[36][1997] 1 VR 242, 244.
[37]See also R v TRG [2004] VSCA 89, [20] (Chernov JA).
[38][1998] 2 VR 385, 387.
In DPP v VH,[39] Callaway JA (with whom Buchanan and Eames JJA agreed) said that ‘the sexual abuse of children by persons in a position of trust is intolerable.’
[39](2004) 10 VR 234, 237–238; see also DPP v DAK [2004] VSCA 175, [33]–[35].
Was the sentence manifestly excessive?
After giving full consideration to the submissions of both parties, I have decided that the sentence is not manifestly excessive. As the authorities discussed disclose, there is no single correct sentence in a particular case. Opinions may reasonably differ and there is a range of sentences that are legitimate and reasonable. Current sentencing practice is of particular relevance in determining that range.
The range of sentences for the offence under consideration in this case has been from one year to 10 years in the period 2003-2004 to 2007-2008. Naturally, this very wide range is due to the variety of circumstances in which the offence may occur, as referred to by the Crown. The fact that nine years is within the range of sentences actually imposed during those years does not necessarily mean that the sentence imposed in this case is within the range of sentences that were legitimate and reasonably open to the sentencing judge.
It is also relevant to note that in this case the appellant was the stepfather of the complainant and admitted to what amounted to incest with his stepdaughter.
Although it is not necessary for me to decide the issue, I would have thought that the range of sentences given over the recent past for this offence does not necessarily define the ‘sentencing range’ when applying the principles of House v The King.
There is a major weakness in using raw statistics as a guide for sentencing, as the nature of the offences can and do vary markedly. This is especially so with the offence of maintaining sexual relations with a child under 16, as the period of maintaining can vary enormously, as can the age of the victim, the type of sexual act and other factors such as force, alcohol and such like.
Both parties agree that the facts of this case must by their nature put the offence close to the top of the middle range of offending for this offence.
The facts found by the sentencing judge reveal a terrible crime has been committed by the appellant against his stepdaughter who he was duty bound to protect. The offences occurred, amongst other times, in the complainant’s own home, when the complainant’s mother was away from home seeking medical treatment for an illness that ultimately took her life. The appellant would often ply the complainant with alcohol in order to more readily have his way. The complainant was a mere eleven years old when the offending began.
It is inherent in the concept of the ‘sentencing range’ that there is a range that is applicable to the facts and circumstances of the particular offence for which the offender is to be sentenced.
Bearing in mind the sentences imposed in the cases drawn to the Court’s attention, and particularly those referred to in the table to the Crown’s written submissions, the particular facts relating to this case, the sentencing statistics, and the maximum sentence prescribe by law, I am not satisfied the sentence imposed by the sentencing judge did fall wholly outside the ‘sentencing range’ open in the circumstances of this case.
Thus I do not find that her Honour erred in the exercise of her discretion in determining the sentence on Count 1 that she did.
No submissions were addressed to the non-parole period.
Accordingly, I am not satisfied that there is error in the sentence imposed on Count 1. I would dismiss the appeal.
Serious sexual offender
The Crown raised two preliminary matters. First, that the neutral summary provided to the Court had incorrectly omitted that pre-sentence, the appellant spent 22 days in custody and that the judge declared that to be the case. That error has been corrected in the summary of the sentence imposed by the trial judge set out above.
Secondly, the Crown points out that the trial judge had been incorrectly informed by both counsel at the trial that the serous offender provision did not come into play in dealing with the appellant on Count 2. The Crown says that the appellant should have been sentenced on Count 2 as a serious sexual offender pursuant to s 6 of the Sentencing Act1991.
The Crown says that for the purposes of sentencing the appellant under Count 2, the appellant was a serious sexual offender under s 6B(2) as he was convicted of an offence to which clause 1(a)(viii) of schedule 1 applies and for which he has been sentenced to a term of imprisonment. That clause applies to s 47A(1) of the Crimes Act1958 (persistent sexual abuse of a child under the age of 16). This was the offence the subject of Count 1 for which he was convicted and sentenced to a term of imprisonment. The Crown says that the second offence of possessing child pornography is a sexual offence under the Sentencing Act1991 so that the appellant fell to be sentenced as a serious sexual offender for that offence. The Crown says that in those circumstances, ss 6D, 6E and 6F would apply in relation to the sentence imposed for Count 2.
The Crown contends that in some cases an error in sentencing an offender on the basis that the offender was a serious offender has been held to vitiate the sentencing discretion where the error has affected the sentence that was imposed. We were referred to R v Fuller-Cust[40] and R v Iles.[41] The Crown says that in both
these cases the error was to the detriment of the offender and in each case the error was held to vitiate the sentencing discretion that had been exercised.
[40](2002) 6 VR 496.
[41](2009) VSCA 197.
The Crown contends that in the present case the error made was not to the detriment of the appellant because of the fact that if the declaration was made, it would have the effect of placing more onerous requirements on the appellant.
The Crown referred to two other cases where it was held that the error did not affect the sentence imposed and as a result it didn’t vitiate the sentencing discretion.[42]
[42]R v DW [2006] VSCA 196; Witbeck v The Queen [2010] VSCA 341.
Counsel for the appellant agreed that the trial judge did err as contended by the Crown and agreed with the Crown’s analysis. He indicated, however, that the appellant ‘did not seek to make anything of it.’ He said that the ground of appeal remains limited to Count 1 and he did not seek to change anything.
In the circumstances, where the appellant does not seek raise any issue by reason of the trial judge’s failure to declare that the appellant was a serious sexual offender for the purposes of sentencing him on Count 2, I do not consider it necessary to further consider the issue.
As the offender was not sentenced on Count 2 as a serious offender, it would not be appropriate to declare that he was sentenced as a serious sexual offender, even though he ought to have been.
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