FD v The Queen
[2011] VSCA 8
•20 January 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No S APCR 2009 0806
| FD | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | REDLICH and WEINBERG JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 20 January 2011 |
| DATE OF JUDGMENT | 20 January 2011 |
| MEDIUM NEUTRAL CITATION | [2011] VSCA 8 |
| JUDGMENT APPEALED FROM | The Queen v [FD] (Unreported, County Court of Victoria, Judge L C Ross, 4 September 2009) |
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CRIMINAL LAW – Appeal – Sentence – Appellant pleaded guilty to eight counts of incest, one count of attempted incest and two counts of false imprisonment involving biological daughters – Sentenced as a serious sexual offender to 16 years’ imprisonment with non-parole period of 13 years – Whether sentence manifestly excessive – Appeal allowed – Individual sentences and total effective sentence not in accordance with current Victorian sentencing practice – Caution advised regarding use of comparable cases as sentencing guides – Hudson v The Queen [2010] VSCA 332 – Appellant re-sentenced to 12 years’ imprisonment with non-parole period of nine years.
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| Appearances: | Counsel | Solicitors |
| For the Appellant | Mr C B Boyce | Paul Vale Criminal Law |
| For the Respondent | Mr P Rose SC | Mr C Hyland, Solicitor for Public Prosecutions |
REDLICH JA:
WEINBERG JA:
On 4 September 2007, the appellant pleaded guilty in the County Court at Melbourne to eight counts of incest, one count of attempted incest, and two counts of false imprisonment. The victims of his offending were his two young daughters, whom we shall designate A and B respectively. A was aged nine at the time of sentencing and B aged eight. A was aged between seven and nine and B between six and seven when the offending occurred.
The children were born out of a relationship that the appellant had with their mother. The appellant played no part in their upbringing. They apparently became aware that he was their father at some point prior to 2007. They sent him a card which prompted him to establish contact with them. From that point on, he occasionally visited them at their mother’s home and ultimately she permitted the children to stay overnight with the appellant at his home. It was on these occasions that these offences occurred.
Each child was sexually abused in a variety of ways. The appellant performed oral sex upon them, as well as digital penetration. In addition, he had sexual intercourse with them. The offending occurred in the presence of both children. On one occasion, the appellant used handcuffs to secure the children’s wrists to the bed in which they were to sleep. He then proceeded to have sexual intercourse with them in this position.
In his interview with the police, the appellant said that any sexual behaviour on his part had been initiated by the children, who expressed curiosity about sexual matters. The appellant initially denied having sexually penetrated A, but conceded that he had attempted to do so. As the interview progressed, he made further concessions regarding his inappropriate sexual behaviour.
The sentencing judge correctly described the abuse as ‘appalling’. It was aggravated by the breach of trust involved, the age of the complainants, and the fact that the offending took place in the presence of both of them. The impact upon the victims had been profound, and was potentially immeasurable. The children had each filed victim impact statements accompanied by assessments by specialist sexual assault counsellors. In A’s case, she was demonstrating behavioural problems described as withdrawal, anxiety and sleep disturbance. In B’s case, there were indications of similar unsettled behaviour, including sleep disturbance, fear and aggression.
The appellant was 37 years of age at the time of sentencing. He had no prior convictions. He pleaded guilty at the earliest opportunity and, as the sentencing judge noted, this entitled him to a significant discount, particularly since the complainants were spared the ordeal of having to give evidence.
There was tendered on the appellant’s behalf a report by a clinical psychologist, Mr Jeffrey Cummins. It was said that the appellant had been raised in a caring and supportive environment. His parents had died in 1999 and 2001 respectively and this had had a profound effect upon him. Mr Cummins was of the view that the appellant had suffered from a depressive disorder since his father’s death, which he characterised as one level of severity below that of a major depressive disorder. The appellant had been in permanent employment up to the time of his arrest.
Mr Cummins said that the appellant was of normal, though below-average, intelligence. The sentencing judge requested the provision of a pre-sentence psychiatric report which was provided by Dr Kate Roberts. That report essentially mirrored Mr Cummins’ observations regarding the appellant’s family background and personal history. Dr Roberts agreed with Mr Cummins’ diagnosis of chronic mood disorder, short of major depression.
The sentencing judge observed that the appellant would be sentenced as a serious sexual offender in relation to counts 3, 4, 5, 8, 9 10 and 11. His Honour chose not to impose a disproportionate sentence. Nor, having regard to the sentencing options available, did he consider it appropriate to order total cumulation.
The appellant was sentenced as follows:
Count 1 (tongue into vagina of A) – six years’ imprisonment;
Count 2 (digital penetration of A) – six years’ imprisonment;
Count 3 (penile penetration of A) – ten years’ imprisonment;
Count 4 (tongue into vagina of B) – six years’ imprisonment;
Count 5 (attempted penilepenetration of B) – six years’ imprisonment;
Count 6 (unlawful
imprisonment of A) – 12 months’ imprisonment;
Count 7 (unlawful
imprisonment of B) – 12 months’ imprisonment;
Count 8 (penile penetration of A) – 12 years’ imprisonment;
Count 9 (tongue into vagina of A) – nine years’ imprisonment;
Count 10 (digital penetration of B) – nine years’ imprisonment; and
Count 11 (tongue into vagina of B) – nine years’ imprisonment.
His Honour ordered that two years of the sentence on count 3 and two years of the sentence on count 9 be served cumulatively upon each other, and upon count 8, making a total effective sentence of 16 years’ imprisonment. He directed that the appellant serve a minimum of 13 years’ imprisonment before becoming eligible for parole. He said that, but for the appellant’s plea of guilty, the total effective sentence would have been 20 years’ imprisonment with a non-parole period of 16 years. He directed that the appellant be registered for life under the Sex Offenders Registration Act2004.
There is but one ground of appeal, namely that the sentence imposed was manifestly excessive.
On 13 August 2010, the appellant was granted leave to appeal, pursuant to s 582 of the Crimes Act 1958. Redlich JA, who granted leave, noted that an examination of the sentencing statistics between 2002 and 2009 revealed that a number of the individual sentences imposed on the counts of incest in this case were higher than any individual sentence ever previously imposed during that period. The total effective sentence, and the non-parole period, appeared to be the second highest ever imposed.
The latest sentencing snapshot available shows that between the period 2004-5 and 2008-9, 167 people were sentenced for the offence of incest. More than 98% of them were men. Of those dealt with for incest 95% were given an immediate custodial sentence. Terms of imprisonment ranged from three months to eight years, while the median length of imprisonment was four years. The most common length of imprisonment imposed was three years. In the majority of cases, there were either multiple counts of incest charged, or other offences charged along with incest.
Of the 154 people sentenced to imprisonment for multiple offences, the length of total effective sentences ranged from three months to 16 years and six months. The median total effective length of imprisonment was six years, three months and 15 days. Non-parole periods ranged from six months to 13 years, while the median length of the non-parole period was four years. The vast majority of those who were sentenced to imprisonment for incest received a total effective sentence of between three years and eight years, with a small number receiving up to ten years. There was only one case involving a term of imprisonment of 16 years or more, four cases involving 15 to 16 years and three cases involving 14 to15 years. Non-parole periods generally ranged between about two years and six years.
The difficulty with statistics of this nature is that they do not provide any information as to which of these cases involve pleas of guilty, and which were contested trials. Moreover, in some cases, individual counts are treated as ‘representative’ whilst in others, every separate act of sexual penetration is counted as a discrete offence. Nonetheless, the figures bear out what Redlich JA noted when he granted leave to appeal. Horrendous as these offences were, this was a very severe sentence.
We have read the victim impact statements prepared by A and B and by their mother. These are, as might be expected, deeply distressing and powerfully moving documents. It would be tempting, but wrong, for this Court to allow these sentences to stand simply because the appellant’s conduct was so abhorrent that almost any punishment would be regarded as acceptable. That would not be consistent with this Court’s obligation to ensure that the penalty meted out to the appellant for his crimes was, in general terms, consistent with the penalties imposed upon others who had behaved similarly.
Regrettably, this Court sees many cases involving the extended sexual abuse of young children by their fathers. Sometimes the offending lasts for years.
A good example is R v CVP[1]. That was an appeal against a sentence imposed by a County Court judge in December 2001. The appellant had pleaded guilty with respect to a range of sexual offences committed against his two daughters. The offences had taken place between about 1986 and 1991. There were 19 counts on the presentment, including, effectively, six counts of incest. At the time, the maximum penalty for incest was 20 years’ imprisonment. The appellant had a number of prior convictions for offences of dishonesty, and some for violence. The longest sentence imposed on any individual count was six years. After orders for cumulation, the total effective sentence was 11 years’ and 10 months’ imprisonment, with a non-parole period of nine years and nine months.
[1][2002] VSCA 193.
In CVP, the elder daughter, who was called N, was only aged four or five at the time the offending commenced. The offences against the younger daughter, K, began when she was about six. At the time of sentencing, the appellant was aged 47. The specific details of each count were not dissimilar to those in the present case, save that there was no sexual intercourse as such. Virtually every other form of sexual depravity took place. A number of the counts were what could fairly be described as representative in nature.
On appeal, Eames JA, with whom Ormiston and Vincent JJA agreed, held that the sentence in question was manifestly excessive. As appalling as the conduct of the appellant was, their Honours held that the sentence should be reduced. The appellant was re-sentenced, resulting in a total effective sentence of ten years’ imprisonment. A non-parole period of seven years and six months was substituted.
A brief survey of the decisions of this Court over the past 12 months or so dealing with sentences for incest confirms that the sentences imposed in this case are significantly out of kilter with current sentencing practice in this State.
In NJD v The Queen,[2] the appellant pleaded guilty in the County Court to numerous sexual offences, including seven counts of incest, three counts of gross indecency and two counts of indecent assault. The offences were very old, having been committed between 1966 and 1970. The appellant pleaded guilty only at the last moment prior to commencement of the trial. He received a total effective sentence of eight years’ and seven months’ imprisonment with a non-parole period of five years. His appeal succeeded and he was re-sentenced to seven years and one month, with a non-parole period of four years and three months.
[2][2010] VSCA 84.
In OAA v The Queen,[3] the appellant pleaded guilty in the County Court to five counts of incest, including several counts each involving multiple acts of sexual intercourse. He had impregnated his daughter, who was aged 12 at the time. He was sentenced to nine years’ and six months’ imprisonment with a non-parole period of seven years. Specific error having been demonstrated in relation to whether particular counts were ‘representative’, he was re-sentenced to nine years’ imprisonment with a non-parole period of six years and six months.
[3][2010 VSCA 155.
In GEM v The Queen,[4] the appellant pleaded guilty in the County Court to two counts of indecent assault and three counts of incest involving his step-daughter, aged between 12 and 15 at the relevant times. He was sentenced to nine years’ and three months’ imprisonment with a non-parole period of six years and six months. His appeal against sentence was dismissed.
[4][2010] VSCA 168.
In GJW v The Queen,[5] the appellant was convicted by a jury in the County Court on 14 counts of incest and four of committing an indecent act with or in the presence of a child under the age of 16. The offences were alleged to have been committed between 2003 and 2005, when his step-daughter was aged between 11 and 13. He was sentenced to a term of 11 years and ten months, with an eight-year non-parole period. His appeal succeeded and he was re-sentenced to a total effective sentence of ten years with an eight-year non-parole period.
[5][2010] VSCA 193.
In CF v The Queen,[6] the appellant pleaded guilty to three counts of incest involving the vaginal penetration of his step-daughter who was aged 16 at the relevant time. She became pregnant as a consequence. The appellant was sentenced to a total of 13 years’ imprisonment with a non-parole period of nine years. This was held to be manifestly excessive. The appellant was re-sentenced to a total effective term of eight years’ imprisonment with a non-parole period of six years.
[6][2010] VSCA 275.
Finally, in DP v The Queen[7] the appellant pleaded guilty to ten counts involving the sexual abuse of his daughter, a child under the age of 16. Seven of the offences were counts of incest. The offending began when the young girl was aged only eight and continued for the best part of ten years. It included numerous acts of sexual intercourse. Each of the counts of incest were said to be ‘representative counts’.
[7][2011] VSCA 1.
The appellant was sentenced to a total effective term of twelve years and a non-parole period of ten years was fixed. Importantly, for present purposes, the sentences imposed in relation to each of the incest counts ranged from two to four years, with the appellant having been sentenced as a serious sexual offender after being convicted of the first two counts. His appeal against sentence was dismissed. We interpolate to say that it is difficult to see how the offending in DP should be viewed as in any way less heinous than that of the appellant in the present case.
There is nothing scientific about this survey of recent cases in this Court dealing with sentencing for incest. It has been undertaken with a clear appreciation of the limitations inherent in such an exercise.
These limitations were recently considered by this Court in Hudson v The Queen.[8] There, in a joint judgment, Ashley, Redlich and Harper JJA said:
[8][2010] VSCA 332.
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.
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 5(2) 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.
‘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.
Before both the sentencing judge and this Court, cases said to fall within the same category were examined in some detail to demonstrate which cases were or were not a fair comparison with the present case. That analysis, it was submitted, warranted the conclusion that a sentence of no more than 30 years was the correct non-parole period.
A detailed examination of ‘like’ cases to implicitly suggest that a particular sentence is the correct one or that the sentence should fall within a very narrow band, is not permissible. Sentences imposed in other cases are not precedents which must be applied unless they can be distinguished. Where principles of parity do not apply, they are not to be regarded as some sort of ’benchmark’ which is determinative of the sentence to be imposed. To attempt to so utilise other cases within a particular category involves the unwarranted assumption that all of the relevant factors which bore upon the imposition of those comparative sentences can be identified and weighted. There may be many reasons why the sentences in those cases should not be viewed by the sentencing judge as an appropriate sentence, or even a guide. Because of the dissimilarity in the offending conduct in other cases and the matters personal to the offenders, it would be an error to directly compare the sentence under challenge with that imposed in other cases.
To undertake and utilise a comparative analysis, whether at first instance or on appeal, in an attempt to identify a sentence in a ‘like’ case that is a fair comparison, is calculated to introduce a level of mathematical precision inimical to the instinctive synthesis. Where the parity principle is not enlivened, recourse to other cases is not undertaken to strike some equality with another particular sentence. Consistency is to be achieved by the application of the appropriate range and not from the application of single instances of ‘like’ cases. The adoption of a sentence selected by an earlier court, even if the case is very similar, would be to sacrifice the proper exercise of judicial discretion in pursuit of consistency of sentencing.
It is no part of the sentencing task, or the assessment of a sentence on appeal, to embark upon that level of analysis of comparable cases. However, there has been an increasing tendency to overlook these limitations. Accordingly one must be wary of attempts to examine a comparable case in ‘micro detail’, as such an approach will ordinarily be indicative of an intent to use the case as providing something more than a guide to a range.[9]
[9]Ibid [27]-[33] (citations omitted).
Their Honours added:
On appeal, the question is not whether the sentence under challenge is more or less severe than some other sentence that is within the range, but whether the sentence falls within the range of sentences that are appropriate to the objective gravity of the offence and to the matters personal to the offender.[10]
[10]Ibid [35] (citation omitted).
These observations in Hudson[11] closely reflect the High Court’s admonition in Hili v The Queen[12] regarding the limited use to which comparable cases can be put as guides to sentencing. In Hasan v The Queen,[13] which was decided only a week or so after Hudson, the passages set out above were cited with approval.
[11]Hudson v The Queen [2010] VSCA 332.
[12][2010] HCA 45, [53]-[55] and [74]-[78].
[13][2010] VSCA 352.
Accepting the limits to which comparison of other sentences can legitimately be put, even a cursory comparison of the individual sentences imposed in this case, and those imposed in other cases of multiple acts of incest, reveals a major statistical discrepancy. For example, the sentence of 12 years imposed on count 8 for a single act of incest is vastly greater than any individual sentence imposed for that offence that we have been able to find. The total effective sentence of 16 years is likewise significantly out of kilter with sentences imposed in relation to offending of comparable gravity. The sentencing snapshot and the examples set out above assist the intuitive synthesis to which we would, in any event, have arrived, namely that the sentence which his Honour imposed in this case was outside the range of a sound sentencing discretion.
We would accordingly allow this appeal and re-sentence the appellant as follows:
Count 1 - four years’ imprisonment;
Count 2 - four years’ imprisonment;
Count 3 - eight years’ imprisonment;
Count 4 - four years’ imprisonment;
Count 5 - four years’ imprisonment;
Count 6 - 12 months’ imprisonment;
Count 7 - 12 months’ imprisonment;
Count 8 - eight years’ imprisonment;
Count 9 - seven years’ imprisonment;
Count 10 - seven years’ imprisonment; and
Count 11 - seven years’ imprisonment.
We would order that two years of the sentence on count 3 and two years of the sentence on count 9 be served cumulatively upon each other and upon count 8, making a total effective sentence of 12 years’ imprisonment. We would fix a non-parole period of nine years. The appellant is sentenced as a serious sexual offender in relation to counts 3, 4, 5, 8, 9 10 and 11.
Pursuant to s 6AAA of the Sentencing Act 1991, the Court declares that but for the appellant’s plea of guilty, the total effective sentence imposed would have been one of 15 years’ imprisonment with a non-parole period of 11 years. The sentencing judge’s orders as to sex offenders’ registration, and all other ancillary orders, are confirmed.
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