E M T v The Queen

[2012] VSCA 193

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2011 0255

E M T
	Appellant
v
THE QUEEN	Respondent

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JUDGES:	WEINBERG, HARPER JJA and T FORREST AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	21 August 2012
DATE OF JUDGMENT:	21 August 2012
MEDIUM NEUTRAL CITATION:	[2012] VSCA 193
JUDGMENT APPEALED FROM:	DPP v [EMT] (Unreported, County Court Of Victoria, Judge Tinney, 1 July 2011)

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CRIMINAL LAW – Appeal against sentence – Appellant pleaded guilty to two charges of incest – Sentenced to 7 years 6 months’ imprisonment with a minimum non-parole period of 5 years – Whether minimum non-parole period manifestly excessive – Whether prospects of rehabilitation adequately reflected in minimum non-parole period – Representative charges – Very young victim – Grave offending – Minimum non-parole period within the acceptable range – Appeal dismissed – No point of principle.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr T Danos	Victoria Legal Aid
For the Crown	Mr B F Kissane	Mr C Hyland, Solicitor for Public Prosecutions

WEINBERG JA:

1. I will invite T Forrest AJA to deliver the first judgment.

T. FORREST AJA:

1. On 3 March 2011, the appellant, now aged 33, pleaded guilty to two charges of incest.  Following a plea which extended over three days, on 1 July 2011, the appellant was sentenced as follows:

Charge on Indictment	Offence	Maximum	Sentence	Cumulation
1	Incest	25 years [Crimes Act 1958 s 44(1)]	6 years’ imprisonment	Base sentence
2	Incest	25 years [Crimes Act 1958 s 44(1)]	6 years’ imprisonment	1 year and 6 months’ imprisonment
3	Failing to Appear	12 months [Bail Act 1977 s 30(1)]	Fine of $300
Total Effective Sentence:		7 and a half years’ imprisonment
Non-Parole Period:		5 years’ imprisonment
Pre-sentence Detention Declare:		120 days
6AAA Statement:		10 years with a non parole period of 8 years
Other orders: · Forensic sample ordered pursuant to s 464ZF of the Crimes Act 1958. · Registration and 15 years of reporting imposed pursuant to s 34 of the Sex Offenders Registration Act 2004.

1. On 8 February 2012, Hansen JA granted the appellant leave to appeal on the sole ground that the sentence was manifestly excessive.

Factual background

1. The factual basis of the offending was summarised in his Honour’s sentencing remarks.  The victim is the appellant’s daughter.  Her mother and the appellant

ended their relationship in February 2001.  Thereafter, the appellant enjoyed access arrangements every second weekend.  The offending took place during these visits between 1 October 2004 and 31 October 2005.  The victim was between six and a half and seven and a half years old during this period.

1. Charge 1 involved digital penetration of the victim’s vagina.  Charge 2 involved penetration of her vagina by the tongue.  Each charge was laid on a representative basis.  It was agreed between the parties that each form of penetration occurred on approximately 12 occasions during the 13 month period referred to above.

1. The date nominated in both Charges 1 and 2 was 31 October 2005.  This was the date of the appellant’s last contact with his daughter.  Both forms of penetration occurred on this occasion and provided the particularised factual setting for the offending.  A short time after that date, a family member heard the victim describing some of the appellant’s conduct to other children.  The police became involved very shortly thereafter.

1. Counsel for the appellant at the plea hearing agreed that the summary of prosecution opening was factually accurate.  It disclosed:

·The offending took place at the home of the accused’s father.

·Typically during access visits, the victim would sleep in the loungeroom on a mattress.  The appellant would sleep on the mattress with her.

·In a VATE interview on 12 November 2005, the child reported that he would rub her ‘rude spot’ and also lick it.[1]

·In his record of police interview conducted on 16 July 2008, the appellant admitted rubbing and licking his daughter’s vagina.[2]  He said he was vague

on the precise frequency and activity because he was using ‘a lot of drugs’ at the time.[3]

·The number of 12 instances of misconduct for each count was struck as a fair compromise between the appellant’s asserted vagueness and the victim’s account that it happened every access weekend.[4]

[1]VATE interview, questions 20, 25, 28, 50, 61, 81, 85, 91, 92, 157, 281 and 283.

[2]Record of interview, questions 30, 74, 94 and 117.

[3]Record of interview, questions 74 and 108.

[4]Plea transcript, 20/10/11, T15.

1. The appellant was not interviewed by police until 16 July 2008, over two and a half years after the offending had been reported.  The appellant was confronted by his former partner in November 2005 and shortly thereafter left his father’s home and stayed away from other family members.  He was arrested on the day of his police interview after being pulled over for a routine vehicle check.  He was bailed to appear at a committal mention listed for 28 November 2008, but failed to appear.  He was not apprehended until 29 June 1010.  This was the subject of charge 3 on the indictment.

This appeal

1. In contending that the sentence imposed was manifestly excessive, the appellant, in oral submissions advanced by Mr Danos, focussed on the minimum term, which he submitted was excessive and outside the appropriate range.  Mr Danos conceded that the head sentence was within range.

1. It was submitted on behalf of the appellant that the combination of:

(i)the fact that the appellant was emotionally upset over the failure of his relationship with the victim’s mother; and

(ii)the appellant’s consumption of drugs and alcohol during the offending period,

ought lead to a conclusion that the behaviour was ‘opportunistic’ rather than predatory, which in turn ought lead to a conclusion that the appellant’s prospects for rehabilitation were bright.  This conclusion, the appellant argued, was reinforced by his lack of similar prior or subsequent criminal history and was not adequately reflected in the minimum term imposed.

1. We were referred to the recent decision of R v Taskiranand Nabalarua,[5] a decision in which this Court allowed Taskiran a ground of manifest excess and then moderated the minimum term only.  I should add that in that case, this Court found that the sentencing judge had failed to give adequate weight to the appellant’s youth – he was a teenager at the time of his offending.  I should also add that after moderation the appellant’s minimum term was approximately 65 per cent of the head sentence.

   [5][2011] VSCA 358.

1. For my part, I am not satisfied that this ground has been made out.  I regard the learned sentencing judge’s reasons for sentence as comprehensive and impeccable.  It is clear that his Honour took into account the appellant’s good work record and otherwise unremarkable prior history.  His Honour found that the appellant had largely brought under control his alcohol and substance abuse prior to his remand in March 2011.  The appellant was given appropriate credit for a plea of guilty which was accepted, given his police admissions, to have come at an early stage.  His Honour accepted that the appellant was a paedophile limited to incest – a diagnosis in fact proposed by Ms Lechner, a clinical psychologist engaged by the appellant’s solicitors.  In my view, his Honour correctly rejected the argument that the appellant’s drug and alcohol abuse disinhibited him and thus reduced his moral culpability.  These were representative counts involving underlying offending over 13 months.  I consider that it was open to his Honour to find that the appellant has ‘reasonable prospects for rehabilitation, albeit… guarded’.[6]  Ms Lechner’s diagnosis and the representative nature of the counts could hardly lead to a more optimistic view being taken.  Similarly, it was open to his Honour to assess the appellant’s risk of re-offending as relatively low and as a consequence to give little weight to specific

deterrence or community protection.  His Honour also found that the appellant exhibited a high level of remorse for his offending.  In short, all of the factors that might be said to operate in the appellant’s favour were referred to specifically by his Honour during his sentencing remarks.

[6]R v [EMT] (Unreported, County Court of Victoria, Judge Tinney, 1 July 2011) [60].

1. These of course were only some of the factors that his Honour was required to consider.  The potential and actual impact of the crime on the seven year old victim requires no elaboration.  As representative charges there could be no finding of isolated aberration.  I consider his Honour correctly gave appropriate emphasis to considerations of general deterrence, denunciation and punishment.  His Honour described the appellant’s conduct as ‘most serious’ involving as it did the sexual abuse of his seven year old daughter.  For my part I agree with his Honour.  This was grave offending involving the abuse of a small child’s unqualified trust in her father.

1. In my view, both the head sentence and the minimum term were well within the range of sound discretionary judgment. 

1. The appeal should be dismissed.

WEINBERG JA:

1. I agree.

HARPER JA:

1. I also agree.

WEINBERG JA:

1. The order of the Court is that the appeal be dismissed.