Fichtner v The Queen
[2019] VSCA 297
•12 December 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0212
| KLAUS FICHTNER | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | MAXWELL P and KAYE JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 4 December 2019 |
| DATE OF JUDGMENT: | 12 December 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 297 First Revision: 12 December 2019 |
| JUDGMENT APPEALED FROM: | [2018] VCC 669 (Judge Pullen) |
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CRIMINAL LAW – Appeal – Sentence – Child sexual offending (6 charges, 4 victims) – Common assault (adult victim) – Child complainants aged between 8 and 16 – Representative charges of carnal knowledge – Pleas of guilty – Total effective sentence 17 years and 4 months’ imprisonment, non-parole period 13 years – Whether manifestly excessive – Predatory conduct over six years – Grooming – Breaches of trust – Violence – Very high culpability – Severe and permanent harm to victims – Limited mitigation apart from applicant’s age – Limited relevance of prior good character – Sentences within range – Leave to appeal refused – Sentencing Act1991 s 5AA.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr M Phillips | Victoria Legal Aid |
| For the Respondent | Ms G A Coghlan | Ms A Hogan, Acting Solicitor for Public Prosecutions |
MAXWELL P
KAYE JA:
The applicant pleaded guilty in the County Court to six charges of sexual offending, and one charge of common assault. The offences were alleged to have been committed in the period between 1976 and 1982. He was sentenced to a total effective term of 17 years and 4 months’ imprisonment, with a non-parole period of 13 years.
That sentence was comprised as follows:
| Charge on Indictment | Offence | Maximum | Sentence | Cumulation |
| 1 | Carnal knowledge of a girl of or above the age of 10 and under the age of 16, contrary to Crimes Act 1958 s 48(1) (Representative charge) | 10 years | 6 years and 6 months | 3 years and 6 months |
| 2 | Indecent assault of a female, contrary to Crimes Act 1958 s 55(1) | 10 years | 4 years | 1 year |
| 3 | Indecent assault of a female, contrary to Crimes Act 1958 s 55(1) & (3) | 10 years | 4 years | 1 year |
| 4 | Gross indecency with a girl under 16, contrary to Crimes Act 1958 s 69(1)(a) & (b) | 2 years | 10 months | 6 months |
| 5 | Carnal knowledge of a girl under the age of 10, contrary to Crimes Act 1958 s 46 (Representative charge) | 20 years | 10 years | Base |
| 6 | Common assault contrary to common law | At large | 18 months | 10 months |
| 7 | Indecent assault, contrary to Crimes Act 1958 s 44(1) | 5 years | 18 months | 6 months |
Total Effective Sentence: | 17 years and 4 months’ imprisonment | |||
Non-Parole Period: | 13 years’ imprisonment | |||
| (1) of the Sentencing Act 1991Pre-Sentence detention declaration pursuant to s 18: | 731 days | |||
| 6AAA Statement: 21 years’ imprisonment with a non-parole period of 17 years’ imprisonment | ||||
| Other relevant orders: · Pursuant to s 6F, sentenced as a Serious Sexual Offender in respect of charges 1, 2, 3, 4, 5, 7 · Forensic sample order · Life reporting under the Sex Offenders Registration Act 2004 | ||||
The applicant seeks leave to appeal against his sentence on the ground that each of the individual sentences imposed on charges 1, 2, 3, 5 and 7, the non-parole period, and the total effective sentence, are manifestly excessive. For reasons which follow, we would refuse leave to appeal.
Circumstances of offending
The circumstances of the offending were described in the summary of prosecution opening on the plea. In order to adequately portray the nature and gravity of the applicant’s offending, it is necessary to summarise the circumstances in some detail.
The applicant was born in April 1948. He married his first wife, JFK,[1] in June 1966. There were three sons of the marriage, born in 1966, 1971 and 1975 respectively.
[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the use of pseudonyms and initials in place of the names of the complainants and other witnesses.
The complainant in respect of the first two charges, KW, was born in May 1965. At that time her family lived in the same street as the applicant, and he was friendly with her family.
In 1976, when KW was 11 years of age, she and her younger brother would attend at the applicant’s home for guitar lessons from him. After a short time her brother commenced football and ceased attending the lessons. On one Saturday in 1976, after KW attended the applicant’s home for her guitar lesson, the applicant’s wife and his middle son left the premises. The applicant was then at home with his eldest son (to whom we will refer by the pseudonym Walter). The applicant sat next to KW during the guitar lesson that followed. As he did so, he commenced to rub her shoulders. When she made mistakes with her playing, the applicant suddenly pinched her on the cheek.
At one point, the applicant grabbed her around the mouth, pulled her off the seat, and dragged her to the lounge room. There he sat down on a mattress that was on the floor, with KW sitting between his legs. The applicant put his hands down the front of her underpants and touched her vagina. Walter entered the room at that stage. The applicant told him to go and get some ‘jelly’ stuff. When Walter returned with the jelly, the applicant put some of it on his fingers before digitally penetrating KW’s vagina.
The applicant then turned KW over so that she was facing the floor. He pulled down her tracksuit pants and underwear, pushed her face into the mattress, and inserted his penis into her vagina. (That conduct constituted charge 1: carnal knowledge of a girl of or above the age of 10 years and under the age of 16 years; representative charge). As a consequence KW suffered pain. Walter at that stage was sitting on the couch watching. The applicant said to him, ‘This is how you treat them if they don’t come around to what you want’. The applicant then put his finger in KW’s mouth, pressing the top of her cheek. He bent her over the couch and again penetrated her vagina.
Later, KW woke up lying on the floor in the spare bedroom wearing only a tee-shirt. The applicant entered the bedroom. Walter was standing in the doorway watching. The applicant said to Walter that if he was ‘not going to watch and learn’ he should go away. The applicant then digitally penetrated KW again. At that point, he told KW she was too tense. He took her to the bathroom, pulled down the fly on his trousers, pulled out his penis, and put it in KW’s mouth (charge 2: indecent assault of a female). The applicant held the back of KW’s head while he did so. At that point KW vomited. The applicant told her she was a ‘dirty bitch’ and that she needed to be taught a lesson.
The applicant then ran a bath. He tied KW’s wrists to the sink in the bathroom using a cord from a radio, while he went and made himself something to eat. He then returned to the bathroom, bent KW over the bath tub, and inserted his penis in her vagina (part of representative charge 1: carnal knowledge). The applicant then washed KW. Walter brought her clothes into the bathroom. KW got dressed and jumped out of the lounge room window to escape.
Eight years later, when KW was 19 years of age, she disclosed that sexual assault to her brother-in-law during a holiday.
SS was the victim of charge 3 (indecent assault of a female). She was the older sister of KW, having been born in December 1961. SS played netball with the applicant’s wife, JFK, and she also babysat their children.
In 1978, the applicant told SS’s father that he was having financial troubles, and that he was unable to pay his telephone bill. Accordingly, SS’s father permitted the applicant to use his own home telephone. On one occasion when the applicant arrived at SS’s family home to use the telephone, SS, who was then 16 years of age, was the only person home. The applicant made a telephone call. He told SS he was waiting on a return call. He sat on a couch next to SS, and put his hand on her leg. On the next occasion, when the applicant arrived to use the telephone, SS was again alone at home. On this occasion, he again sat next to her on the couch, patted her leg, and put his arm around her.
The applicant then began regularly attending at SS’s home to use the phone when he knew that SS was alone. On one occasion, she answered the door wearing a dressing gown. She sat on the couch and the applicant sat next to her. He ran his hand up her leg and into her underwear. SS reacted by jumping up and asking the applicant what he was doing. The applicant responded that she liked it.
On the following day, the applicant again arrived at SS’s home. She was wearing a dressing gown with a nightie and underwear underneath it. The applicant sat next to her on the couch, put his hand inside her underpants, and touched her pubic hair. She ran down the hallway. The applicant followed her. SS ran into a bathroom. She ended up on the sink cabinet with her head pressed against the mirror. The applicant put his hand into her pants and penetrated her vagina with his fingers. Her head hit the mirror. She was unable to move because the applicant was standing between her legs. He was saying to her ‘You want it, you want it’. That conduct was the basis of charge 3 (indecent assault of a female).
The applicant then said to SS that if she told anyone about what had occurred, her father would not be repaid the money that he had loaned to the applicant. On the following day, the applicant again returned to the home to use the telephone. On that occasion, SS refused to let him enter. The applicant told her that he was not going to repay the debt to her father, and he also told her that it was her word against his. On the same evening, the applicant spoke to SS’s father. The applicant told him that he (the applicant) had missed a job because SS would not let him in the house.
KJ was the victim of the offences that were the subject of charges 4 and 5. KJ was born in November 1970. At the time of the offences she was eight or nine years of age.
In 1977, KJ and her family moved to a home opposite the home of the applicant. In due course KJ became friendly with the applicant’s sons. In 1979 she stayed overnight at the applicant’s home. The applicant asked her for a goodnight kiss, and she kissed him on the lips. At his request, she kissed him again, and then, when he asked her to do so, she opened her mouth, and he put his tongue in her mouth.
Subsequently, each time that KJ saw the applicant, he would kiss her passionately. The applicant would also get KJ to sit on his lap. He would tickle her all over, ending with him tickling her in the groin area. During weekends and school holidays, KJ would often stay at the applicant’s home. He commenced to tickle her vagina over her clothing, then progressed to touching her on the vagina with his fingers. He would engage in that conduct while they kissed. On occasions he would penetrate her vagina with his fingers. If she moved or indicated that it was hurting he would stop. On one occasion, the applicant put KJ on the floor. He lay on top of her between her legs, and simulated the act of sexual intercourse, while tongue kissing her.
At that time the applicant showed the victim pornographic magazines, and he would try to copy some of the sexual positions depicted in those publications.
On one occasion in 1979, when KJ stayed overnight at the applicant’s home, she was asleep on the floor in his son’s room. The applicant picked her up, took her into the lounge room, and put her on the couch next to him. He showed her his penis and asked her to touch it, which she did, masturbating him and causing his penis to become erect. He asked her if he could put his penis in her mouth, but she refused. He then masturbated himself until he ejaculated. He showed the ejaculate to KJ and told her that that was where babies came from. That conduct was the subject of charge 4 (gross indecency).
The applicant and KJ then lay on the floor and kissed passionately. The applicant removed her pyjama bottoms and he had no trousers on. He lay on top of her, and rubbed up and down on her. When he became erect, he used his hands on her vagina to assist him to penetrate her vagina. He pushed his penis into her vagina, causing her to cry out, at which point he stopped. That conduct constituted charge 5 (carnal knowledge, a representative charge).
In early 1980, KJ again stayed over at the applicant’s home in his son’s bedroom. During the night, he came into the bedroom, lay down and began kissing her. He removed his trousers. KJ began to touch his penis which was erect. He pulled down her pyjama bottoms. With his hand he parted her vaginal lips and tried to penetrate her vagina with his penis. Despite trying to do so for a few times, he was unable to penetrate it. He then pushed his penis in the vaginal entrance, but it hurt KJ, so he stopped. That conduct was also part of charge 5.
As mentioned, JFK, who was the victim in charge 6 (common assault) was the first wife of the applicant. When he consumed alcohol, the applicant was abusive and violent to JFK. On one occasion, when their middle son was eight years of age, the applicant had been drinking heavily. JFK began to argue with him about his drinking. In response, he pushed her with his hands. Their middle son, who was present, tried to intervene, but the applicant flung him against the wall. In response, JFK started to attack the applicant to get him away from their son. The applicant then threw her to the ground. She fell on her arm, causing her significant pain. The applicant called her a ‘lying bitch’, and kicked her in the stomach, leaving her to lie on the ground. As a consequence of that assault JFK suffered a fractured wrist. That conduct constituted the offence in charge 6.
The victim of the offence the subject of charge 7 (indecent assault) was CS, who was a school friend of KW. When the applicant would drive KW home from school, CS would sometimes also get a lift home. On one occasion, between August 1981 and August 1982, when CS was 16 years of age, she was alone in the vehicle with the applicant who was driving her home. The applicant stopped the vehicle, and made comments to her about her breasts. He then reached across, and placed both of his hands on her breasts. CS was shocked, and eventually managed to climb out of the car and walk home.
The proceeding
In 2016, the applicant was charged and extradited to Victoria from the Northern Territory where he was then residing. He was interviewed by detectives from the Knox Sex Offences and Child Abuse Unit while he was incarcerated at the Hopkins Correctional Centre in Ararat.
A contested committal hearing was fixed for 6 December 2016. On the morning of that hearing, the matter resolved to a plea of guilty, before any witnesses were called to give evidence. Accordingly, the matter was listed for a County Court plea on 23 March 2017. However, on 21 March 2017, the applicant’s representatives advised the Court that there had been a change of instructions, that the applicant was no longer pleading guilty, and that his solicitor and counsel could no longer act for him.
In May 2017, the matter was listed for a four week trial to commence on 9 April 2018. Ultimately, on 2 February 2018, the representatives for the applicant made a plea offer to the prosecution, which was accepted four days later. At the further directions hearing, on 9 February, the applicant was arraigned on the new plea indictment. As mentioned he pleaded guilty to all the charges.
The applicant’s antecedents
The applicant did not have any previous convictions. However, he did have a number of subsequent convictions which, it is accepted, were relevant to an assessment of his prospects of rehabilitation. The subsequent convictions included the following:
·On 24 March 1988, the applicant appeared at the Lakes Entrance Magistrates’ Court on two charges of indecent assault. Both charges were adjourned for a period of twelve months on the applicant entering into a good behaviour bond.
·On 4 March 1999, the applicant was sentenced by the Dandenong Magistrates’ Court to four months’ imprisonment, which was wholly suspended for two years, on a charge of engaging in an indecent act with or in the presence of a child under the age of 16 years.
·The applicant next appeared at the Melbourne County Court on 17 December 2003 on one charge of making/producing child pornography, and one charge of knowingly possessing child pornography. The case was an appeal by the Director of Public Prosecutions from a sentence imposed in July 2003 by the Ringwood Magistrates’ Court on that charge. On the appeal, the Magistrates’ Court’s order was set aside, and the applicant was sentenced to 18 months’ imprisonment with a non-parole period of nine months.
·The applicant appeared at the Darwin Supreme Court on 19 June 2008 on one charge of possession of child abuse material and one charge of exposing a child to indecent material. The first charge concerned the possession by the applicant of discs containing 2,620 child abuse material images and stories. The content of the material, described in the reasons for sentence by the Darwin Supreme Court, was most disturbing, including images and stories depicting children being subjected to torture, cruelty and abuse. The second charge concerned the conduct of the applicant showing to a nine year old boy, who was a visitor at his home, an image of a woman in a sexually provocative pose on the screen of his laptop computer. The applicant was sentenced, in respect of those two charges, to a total effective sentence of two years and nine months’ imprisonment, to be released after serving 21 months of that sentence, with the balance of twelve months to be suspended.
The plea
The applicant was born in Germany. He migrated to Australia with his family in 1956. He was raised and educated in Gippsland. Having completed Year 12, he successfully undertook an apprenticeship as a plasterer. He was employed as a plasterer throughout his working life.
The pre-sentence report, provided by Dr Dion Gee, a forensic psychologist, noted that the applicant did not have any familial history involving domestic violence, substance abuse, mental health issues or other disadvantage. He was married and divorced three times. Throughout his adult years, he had a problem with substance abuse, primarily with alcohol, but also from the use of amphetamines. Until more recent years, he did not experience any serious problems with his health.
On his plea, the judge was informed that the applicant had a history of cardiac irregularities, high blood pressure and diabetes, but each of those conditions were being adequately treated with medication. At the time of sentencing, however, he did need to undergo surgery for two knee replacements.
The principal mitigating factors, relied on on the applicant’s plea, were his age, which was 70 years at the time of sentence, his health and his guilty pleas. Further, due to his convictions, he was at risk of being deported upon the completion of his prison term.
It was accepted on the plea that in determining the applicant’s prospects of rehabilitation, it was relevant for the sentencing judge to have regard to his subsequent convictions.
As noted, on the plea, a report was tendered on behalf of the applicant by Dr Gee, who had interviewed the applicant at some length. In his detailed report, Dr Gee noted that the applicant was oriented in time, place and person, and his attention and concentration appeared to be reasonable for his age. His memory functioning appeared to be somewhat compromised. In particular, he had impaired memory for his past aberrant behaviour, and he claimed to have no memory of the events for which he was to be sentenced. Dr Gee assessed the applicant’s cognitive functioning to fall within the average range. Dr Gee noted that a comprehensive neuropsychological assessment had been conducted in 2017, which indicated that the applicant’s cognitive impairment was not consistent with a diagnosis of Alzheimer’s disease, or with any other form of dementia. It was considered that it was probably a result of cerebrovascular disease.
Dr Gee assessed that the applicant had a distinct tendency to avoid self-disclosure, and that he was unwilling to divulge matters of a personal nature. His demeanour was underpinned by deficits in introspection, owing to emotional impoverishment, vagueness of thought, and attempts to distance himself from the past. His character pathology was suggestive of a schizoid personality.
Dr Gee considered that the applicant did not present with an enduring mental illness. He currently did not present with a substance use disorder, although his reported past use of alcohol suggested a dysfunctional association. The applicant did not demonstrate any enduring pathology suggestive of a personality disorder. He did not currently meet the DSM 5 criteria for a Paedophilic disorder or for a Paraphilic disorder. However, Dr Gee considered that his enduring sexually aberrant behaviour — often involving pre-pubescent female children — indicated the potential background existence of paedophilic interest. We interpolate that, in that respect, in 2008, Dr Walton (who had examined the applicant in the proceedings in the Darwin Supreme Court) considered that the applicant met the diagnosis for a paedophile.
Dr Gee considered that the applicant’s aberrant behaviour was best construed as attempts at sexual expression/gratification in a man with compromised psycho-social competence, diminished self-worth, dysfunctional self-regulation, diminished insight, and a level of deviant arousal.
Dr Gee considered that the applicant represented a moderate risk of re-offending sexually. In other words, he was as likely as the typical convicted sexual offender to re-offend. Dr Gee did not consider that incarceration would weigh more heavily on the applicant than on a person of normal mental health.
Reasons for sentence
In her reasons for sentence,[2] the judge noted that there were a number of aggravating features attending the applicant’s offending. In particular, the offending involved a breach of trust, not only of each child complainant, but also of their parents. Some of the offending involved violence, in particular the offences that were the subject of charges 1, 2 and 3. The offending, in charges 1 and 2, occurred in the presence of the applicant’s eight year old son. The applicant failed to wear a condom when committing the offences that were the subject of charges 1 and 5. A further aggravating feature was that the offending involved multiple complainants. The victims of the offending had suffered considerably.[3]
[2]DPP v Fichtner [2018] VCC 669 (‘Reasons’).
[3]Ibid [53]–[59].
The judge accepted that by his pleas of guilty the applicant had spared the time and cost of a trial, and as a consequence the complainants had not been required to give evidence. Her Honour accepted that the plea was indicative of some remorse, but she was (understandably) concerned about the extent of the applicant’s remorse. However, her Honour accepted that the pleas had facilitated the course of justice.[4]
[4]Ibid [63]–[68].
The judge also referred to the applicant’s age and his medical conditions. She took into account the prospect that the applicant may not live to be released from custody.[5] On the other hand, she noted, as conceded by counsel for the applicant, that his prospects of rehabilitation were guarded.[6]
[5]Ibid [75].
[6]Ibid [76].
The judge also acknowledged that the applicant was at risk of deportation upon the completion of his prison term. As a consequence, her Honour accepted that the applicant might be anxious about that possibility while he is undergoing sentence.[7]
[7]Ibid [79]–[80].
Her Honour referred, in some length, to the report of Dr Gee. She noted that Dr Gee did not consider that incarceration would weigh more heavily on the applicant than on a person in normal mental health. Nevertheless her Honour found ‘some applicability of general sentencing principles’.[8]
[8]Ibid [103].
The judge, appropriately, summarised the victim impact statements in some detail. We will return to the content of those statements later. Her Honour noted that the victims of the offending had suffered considerably, and that the impact of his offending on each of them had been profound.[9]
[9]Ibid [108].
The judge accepted the submission made on behalf of the prosecution that the applicant’s offending in the first two charges (involving KW) ‘fell at the top of the scale’ of gravity.[10] Her Honour stated (again, appropriately) that sexual offending against children is regarded by the courts as very serious, which is also a matter to which we will shortly return. As the applicant had previously been sentenced to a term of imprisonment for ‘qualifying offences’, he fell to be sentenced as a serious sexual offender in respect of each of the charges except charge 6. The prosecution did not seek a disproportionate sentence, and the judge considered that the applicant could be appropriately sentenced without the need to impose such a sentence.[11]
[10]Ibid [107].
[11]Ibid [47], [156].
Submissions
Counsel for the applicant acknowledged that the offending in the case was most serious. However, he contended, the sentences imposed on the applicant, and the total effective sentence, did not reflect that any, or any sufficient, weight had been given by the judge to a number of relevant mitigating circumstances upon which the applicant had been entitled to rely. In particular, counsel noted, the applicant had pleaded guilty to all charges, which involved an acceptance of responsibility, was of utilitarian benefit and facilitated the course of justice. Further, the applicant had no previous convictions. In that respect, counsel noted that the judge had not made a finding, in accordance with s 5AA of the Sentencing Act 1991, that the applicant’s previous good character or lack of previous convictions had been of assistance to him in the commission of those offences. Thus, the applicant was entitled to have taken into account the fact that, at the time that he committed the offences that were the subject of charges 1 and 2, he had no previous convictions.
Counsel also relied on the applicant’s age at the time of sentencing, so that it was likely that he would spend the whole, or a very substantial portion, of the remainder of his life in custody. The fact that the applicant was at risk of deportation at the completion of his sentence would weigh more heavily on him during his term of incarceration. Counsel also referred to the applicant’s health issues, and, in particular, his diabetes, blood pressure and cardiac irregularities, and the fact that he required two knee replacement operations. Counsel additionally noted that the applicant suffered from a mild cognitive impairment. Further, counsel referred to Dr Gee’s conclusion that the applicant did not meet the criteria for a Paedophilic disorder or a Paraphilic disorder. Accordingly, with appropriate psychological intervention, he had fair prospects for rehabilitation.
Counsel for the applicant placed particular emphasis on the pleas of guilty made by the applicant to the charges on the indictment. He submitted that it could not be discerned that those pleas had been given any, or any adequate, weight by the judge as a mitigating circumstance. He contended that, as a matter of public policy, it is necessary that there be a perceptible benefit to an offender who pleads guilty. Otherwise, he contended, offenders might ‘take their chances’ by contesting the charges against them, particularly in cases such as the present, in which the prosecution is significantly reliant on the evidence of the complainant.
In the written case filed in support of the application, counsel placed some reliance on previous sentencing practices for the offences involved in those charges. He submitted that the sentence imposed, in respect of each charge, substantially exceeded the sentences that had previously been imposed for such offences. Thus, he contended, the sentence imposed in respect of charge 5 — which was the base sentence — was ‘considerably higher’ than any individual sentence for sexual penetration of a child under the age of 16 years that was included in the overview of cases contained in the Victorian Sentencing Manual. Counsel contended that the sentence that was imposed on charge 1 — six years and six months’ imprisonment for carnal knowledge of a girl between 10 and 16 years — was manifestly excessive, as the maximum sentence for that offence was 10 years’ imprisonment. Counsel noted that an examination of sentences contained in the Sentencing Manual for such offences did not contain any sentences that exceeded five years’ imprisonment.
In respect of the sentence imposed on charge 7 — indecent assault on CS — counsel submitted that the offending was ‘toward the lower end’ of the scale of such offending. In particular, the offending involved the applicant placing his hands over the breasts of CS while she was clothed, and it did not involve any touching of her genitalia. Counsel referred to the sentences in two recent cases that have come before this Court — Hudson (a pseudonym) v The Queen[12] and Khan v The Queen[13] — and contended that the sentence of 18 months’ imprisonment imposed in the present case was outside the range of permissible sentences. Finally, in respect of the sentences imposed in respect of charges 2 and 3 (indecent assault), counsel accepted that both of the offences were of a serious nature. However, he contended, both sentences exceeded any other individual sentence for indecent assault referred to in the overview contained in the Victorian Sentencing Manual, including where the sentences were related to representative charges.
[12][2017] VSCA 122.
[13][2018] VSCA 61.
In response, counsel for the respondent contended that each of the offences, committed by the applicant was a serious example of a serious offence. The offending involved multiple victims. They each constituted a breach of trust. Two of the charges were representative charges. The applicant resorted to violence in order to commit some of the offending, and he made threats to some of the victims during and after the offending. He directed the youngest victim (KJ) to keep the offending a secret. In some instances, the applicant used debasing and offensive language to his victims. The offending the subject of charges 4 and 5 (in which KJ was the victim) was committed in the context of other uncharged acts. Each of the acts of penile/vaginal penetration was committed without the applicant using protection. The offending has had profound and long lasting effects on each of the victims, as evidenced by their victim impact statements. Finally, the applicant fell to be considered as a serious sexual offender in respect of each of the charges.
Counsel for the respondent submitted that, in particular, the offending that was the subject of charge 1 was correctly considered by the judge to fall ‘at the top of the scale’. The victim, KW, was then 11 years of age. The applicant resorted to a disturbing degree of violence against KW, in which he verbally abused her, physically restrained her, and performed degrading acts on her. The offending occurred in the presence of the applicant’s eight year old son.
Counsel further contended that some of the matters relied on in mitigation were of limited value. The plea of guilty had some utilitarian value, but the applicant had, for some period, withdrawn that plea, thus exposing the victims to the prospect of a contested trial. Although the applicant had a mild cognitive impairment at the time of sentencing, counsel for the applicant on the plea did not seek to rely on any of the principles referred to in R v Verdins.[14] Counsel for the respondent referred to a number of authorities for the proposition that, notwithstanding an offender’s advanced age and ill-health, the principles of sentencing did not justify the imposition of a sentence which was inappropriate.
[14](2007) 16 VR 269 (‘Verdins’).
In the written case filed on behalf of the respondent, it was contended that, pursuant to s 5AA of the Sentencing Act, the judge had been precluded from having regard to the applicant’s previous good character or lack of findings of guilt. However, in oral submissions, counsel, correctly, accepted that because the sentencing judge had not made a finding that the applicant’s lack of previous convictions had been ‘of assistance’ to him in the commission of the offences, s 5AA did not apply, so that the judge was required to take into account the applicant’s lack of previous convictions.
Finally, counsel for the respondent noted that the applicant relied substantially on current sentencing practices in demonstrating that the sentences imposed on him were manifestly excessive. However, she submitted, such an approach was inconsistent with the decisions of the High Court in R v Kilic[15] and Director of Public Prosecutions v Dalgliesh (a pseudonym).[16]
[15](2016) 259 CLR 256.
[16](2017) 262 CLR 428 (‘Dalgliesh’).
The victim impact statements
Before we analyse the issues raised by the competing submissions made on this application, it is appropriate to refer, in a little detail, to the victim impact statements of KW, SS and KJ that were received on the plea. Those statements demonstrate the significant harm and pain caused to each of those victims as a result of the offences that were committed against them by the applicant. By referring to them, we do not engage in an impermissible exercise of retributive justice. Nor, by doing so, do we permit sympathy and other similar emotions to overwhelm good judgment. Rather, the victim impact statements in this case, and in any such case, are relevant and important as a salutary reminder of the profound trauma and harm occasioned to each of the victims as a result of the offending in the case, and which was the direct and foreseeable consequence of the applicant’s offending.
In her statement, KW graphically described the impact of the applicant’s offending on her. She has particular problems with developing relationships, and engaging in physical intimacy, with other men. She has suffered from bursts of anger which she has difficulty controlling. KW has attempted to suppress her feelings and pain by driving herself hard at work. She stated in that respect:
I work and work until I wear myself down and am absolutely exhausted so that when I sleep I don’t think, and I don’t dream. Now that I haven’t been working for a while I dream again. I wake up screaming. I hyperventilate. I jump out of bed. I keep the windows open so I have got a window to jump out of if something goes wrong. If I’m at home and I hear a car I sit up, hyper vigilant. … My mind is all over the place.
KW also stated that the applicant’s conduct to her has been destructive of her relationship with her family. She felt that her parents had failed to protect her, and she even became distant from her sister SS. As a result, she has moved away from her family, whereas she would have liked to have lived closer to them and remained part of their lives.
In her victim statement, KJ (the victim in respect of charges 4 and 5) stated that the applicant had been ‘rapacious in his attempts and ability to manipulate situations and circumstances that would enable him to molest me’. Her memories of the offending have lasted throughout her life and have never receded. They have permeated each aspect of her existence. In her statement she said:
Despite my reticence to discuss the sexual abuse I encountered as a child, the memories of the abuse are always with me. They continuously plague my thoughts and affect my behaviours without respite. They are just there. I see and re-live the abuse over and over and over again every single day. It has become a normal part of my existence. It doesn’t matter what I’m doing or where I’m doing it, the memories are there. They just pop up, causing me to re-experience them at any time, in any situation. They have become something I have simply had to learn to live with.
As a consequence, KJ developed overwhelming feelings of depression and anxiety. When she was 13 years of age, she first began to contemplate committing suicide. Although she did not want to die, she could not continue feeling so depressed. She said ‘I just wanted the memories, the anxiety, the desolation and the dreams to stop’.
As a result, during her life, KJ became involved in anti-social behaviour, and at times she resorted to illicit substances, as an attempt to escape from her feelings of shame, guilt and anxiety. However, she found that that escape was illusory, and her depression and thoughts of suicide remained and were unremitting. As a result of her emotional distress, her relationships with others have suffered. At the age of 30, she commenced a new relationship with someone for whom she had great affection. However, her emotional problems took their toll and the relationship did not survive.
In her statement, SS said that she could not bring herself to attend Court, because she could not bear to see the applicant’s face. She said that the abuse inflicted on her by the applicant had left her with a massive loss of self-confidence. She said ‘I have lots of self-doubt and self-blame’. As a consequence, she has suffered mild anxiety, post-traumatic stress disorder and depression. She also feels guilty (although she should not do so) about her sister KW, when she found out that she had not been able to protect KW. Further, what happened to SS has affected her intimate relationships, even with her husband. She concluded by saying ‘I fear conflict, authority and control, and I find it difficult to trust anyone completely’.
Analysis and conclusion
In order to succeed on the ground that the sentences imposed on him were manifestly excessive, the applicant must demonstrate that the sentences were wholly outside the range of sentencing options available to the sentencing judge. In other words, the applicant must demonstrate that the sentences that are the subject of the application for leave to appeal are so excessive as to bespeak error by the judge in the exercise of her sentencing discretion, notwithstanding that no specific error may be identified in her Honour’s reasons for sentence.[17]
[17]Clarkson v The Queen (2011) 32 VR 361, 384 [89]; DPP v Macarthur [2019] VSCA 71, [58].
In considering whether the sentences imposed on the applicant were manifestly excessive, the starting point is that, quite clearly, each of the offences committed by the applicant was, by its very nature, most serious. As we have discussed, the severe and long-lasting harm which is caused by sexual abuse of children and young persons is well established and widely understood. As the victim impact statements in the present case graphically and tragically demonstrate, the conduct indulged in by the applicant was calculated to cause severe and permanent damage, which has had a devastating effect on the life of each victim. The offending by the applicant deprived each victim of her right to her own sexual integrity, has destroyed the childhood and youthful innocence of each victim, and has left each victim with long-standing and profound emotional and psychological injury and pain. The difficulties that they have each suffered in their daily lives, in forming meaningful and stable relationships and in finding some form of emotional peace and happiness, have been, and will remain, a direct and foreseeable consequence of the appalling conduct which formed the basis of each of the offences committed by the applicant.
The conduct of the applicant was inherently evil and depraved. It violated the most basic norms of civilised behaviour, and struck at the heart of the value which our society places on the lives and wellbeing of each of its young persons. The applicant’s conduct is properly described as disgusting, degraded and perverted. His actions, in using his sense of power over the young victims, and in threatening and using force in relation to them, were as cowardly as they were cruel. The moral culpability of the applicant, in respect of each offence, can properly be described as being of a very high level.
In cases such as this, the law recognises that the sentencing purposes of denunciation and general deterrence must be given prominence. It is important that the sentences imposed on offenders be adequate to express the condemnation of the court, and of society, and to make it plain that conduct of the kind undertaken by the applicant strikes at the fundamental moral values of our decent and civilised society.
Equally, the principle of general deterrence is of particular significance in cases such as this. It is important that the courts, by the sentences imposed in such cases, make it clear to any person who may be minded to engage in such conduct, that that person will, when apprehended, lose his or her right to be at liberty within our community for a long period of time. Only by the imposition of sufficiently stern sentences in cases such as this can the courts, and the justice system, play their part in protecting vulnerable members of the community from such degraded and predatory conduct.
In addition, there were a number of particular features attaching to each of the offences which were important in an evaluation of the overall seriousness of that offending.
First, in each case, the offending constituted a breach of the trust reposed in the applicant by the victims and by their parents. The applicant abused two of the victims — KW and KJ — when they were guests in his own home and, as such, were in his care. He took advantage of the generosity afforded to him by SS’s father to abuse SS in her own home. He indecently assaulted CS when she had placed herself in his care, in his vehicle, for the purpose of being safely driven home from school by him.
Secondly, in each case, the offending was predatory. There was nothing spontaneous about the applicant’s conduct. Rather, in the context of each offence, and of the uncharged acts, the applicant preyed on vulnerable children in order to gratify his depraved urges.
Thirdly, the offending took place over a period of about six years. Thus, his offending was not confined to a brief period of aberrant behaviour. Rather, for a significant period — when he was between the ages of approximately 28 and 34 years — he indulged in repeated acts of grave predatory sexual abuse of young females.
As we have noted, the two charges of carnal knowledge (charges 1 and 5) were representative charges. The principles relating to sentencing in respect of such charges are well established. In respect of each of charges 1 and 5, the applicant was not to be punished for the represented offences. However, the sentencing judge was entitled to take into account the whole context of the offending, including the conduct which was represented in that count.
Those principles were sufficiently described by Batt JA in R v SBL, in the following terms:
Not only does the fact that a count is agreed to be representative preclude its being said in mitigation that the offence was isolated, it affirmatively enables the offence to be seen in its full circumstantial context. The offender is not, by a loading of the sentence, to be punished for the represented offences, but the sentence for the representative offence may reflect the fact that it, the offence counted, occurred in the wider context. Consistently with the view which I have expressed about agreed representative counts, regard may in the present case be had to the adverse effect upon the victims of the whole of the conduct, which effect might not have been produced, or produced to the same extent, by the offences counted alone.[18]
[18]R v SBL [1999] 1 VR 706, 726 [70] (Batt JA), 724–5 [65] (Ormiston JA). See also R v CJK (2009) 22 VR 104, 113–14 [58] (Warren CJ); Browne (a pseudonym) v The Queen [2015] VSCA 274, [72]–[78] (Robson AJA) (citations omitted).
The offending involved in charges 1 and 2 (in which KW was the victim) was particularly serious. KW was then 11 years of age. The applicant took advantage of the fact that she was a guest in his home, and entrusted to his care. He was in the position of a teacher to her, which gave him greater authority and power over her. The applicant resorted to violence and to a frightening degree of force throughout the whole of the incident in which the two offences were committed. The incident itself was protracted. The applicant treated KW as an object, to be used for his own sexual gratification.
The acts of penile/vaginal penetration of KW were unprotected. In addition to those acts, he committed two acts of digital penetration of her vagina. The applicant deliberately performed those actions in the presence of his son and, for some depraved reason, considered that he could employ KW as some sort of object by which to ‘educate’ his eight year old son. When she vomited after he had put his penis in her mouth (charge 2), he verbally abused her calling her a ‘dirty bitch’ who needed to be taught a lesson. The applicant subjected KW to an entirely degrading, humiliating and horrifying experience. On the view of the facts most favourable to the applicant, his conduct was of the highest order of gravity, and his culpability and degree of responsibility for the offending were correspondingly high.
As we have noted, the offending involved in charge 3 was committed in the home of the parents of SS. He would attend their home whenever he knew that SS was there alone. By engaging in that offending, the applicant brazenly exploited the generous gesture by SS’s father to him, and violated the trust reposed in him. The conduct that the applicant engaged in, in the lead up to the offending, was in the nature of ‘grooming’. In consecutive visits, he commenced by putting his hand on her leg and patting it, by putting his arm around her, and by progressively engaging in sexualised acts which ultimately culminated in the offence for which he was charged. As we have already observed, the offending was not a spontaneous response to some suppressed urge. Rather, it was calculated and premeditated. In committing the offence, the applicant resorted to force against SS, pushing her head into the mirror and restraining her from moving by standing between her legs. The threat that he made to SS — that if she told her father, he would not repay the loan that her father had made to him — aggravated the offending. Having abused SS, he sought to intimidate her from revealing his egregious conduct to her own father.
The offending involved in charges 4 and 5 was also most serious. The victim, KJ, was just eight or nine years of age. She was a guest in the applicant’s home. The offending involved a gross abuse of trust, both of KJ and of her parents. The applicant led into the offending by engaging in tongue kissing and simulated sex with KJ, the kissing occurring in front of his own sons. He further sought to prepare her by showing her pornographic magazines, to which such a young child should never be exposed. His conduct, again, was premeditated and calculating. The penile/vaginal penetration involved in charge 5 was unprotected. Understandably, it caused the victim pain. The applicant sought to gain KJ’s silence by telling her not to inform anyone of his conduct because it was their ‘special secret’.
As we have discussed, the offending in charge 7, in which CS was the victim, involved a breach of trust by the applicant. In the context of each of the other charges, it is clear that the indecent assault could not be described as a momentary lapse by the applicant. Rather, it constituted one more instance in which the applicant seized an opportunity to treat a young female as the object of his perverted sexual desires. CS, a school student, had trusted the applicant to safely drive her home. Instead, he flagrantly abused that trust. While, as counsel for the applicant has pointed out, the offending did not involve any interference with the victim’s genitals, and she was fully clothed, nevertheless the incident could only have been traumatic and frightening for her. The conduct engaged in by the applicant violated her sense of physical integrity and demeaned her.
The applicant was not able to point to any circumstance which could have mitigated the gravity of these offences, nor his subjective culpability and responsibility for them. As we have noted, the applicant had the advantage of a normal stable upbringing. He was not subjected to any trauma or relevant disadvantage during his formative years, or subsequently, which might have reduced his culpability for the offending in the manner discussed by the High Court in Bugmy v The Queen.[19] Nor could he rely on any psychological disorder or impairment which might otherwise have diminished his culpability in the manner described in Verdins.[20]
[19](2013) 245 CLR 571, 594–5 [40]–[44].
[20](2007) 16 VR 269, 276 [32].
It is in that context that it is necessary to examine the mitigating circumstances relied on by the applicant. In essence, they consisted of the applicant’s plea of guilty, his age, his health, his lack of previous convictions, the fact that he might be deported, and his prospects for rehabilitation.
Counsel for the applicant placed significant reliance on the plea of guilty as a mitigating factor. As the judge noted, that plea was of utilitarian value, saving the community the expense of a trial, and, more importantly, having the effect that none of the victims would be exposed to the trauma and emotional strain of giving evidence in the trial. However, that benefit was to some degree reduced by the fact that the applicant withdrew his plea of guilty three months later, and he only renewed his offer to plead guilty at a time that was quite close to trial. During that period, each of the victims was faced with the prospect that they might be required to give evidence and to undergo cross-examination.
The judge — somewhat generously — found that the plea of guilty was attended by some remorse, albeit that her Honour was ‘concerned’ about the extent of that remorse.[21] We observe that there was no material put before her Honour which would have substantiated any significant finding of remorse. The applicant did not acknowledge his wrongdoing, and, according to Dr Gee, he had some degree of distorted or problematic cognition that was associated with justifying aberrant sexual behaviour concerning children.
[21]Reasons [64].
The applicant did not have any previous convictions. We referred earlier to s 5AA of the Sentencing Act, which provides as follows:
5AACourt not to have regard to previous good character or lack of previous findings of guilt or convictions in certain circumstances
(1)Despite section 5(2), in sentencing an offender for a child sexual offence, a court must not have regard to the offender's previous good character or lack of previous findings of guilt or convictions if the court is satisfied the offender's previous good character or lack of previous findings of guilt or convictions was of assistance to the offender in the commission of the offence.
As can be seen, the section is only engaged when the sentencing judge is affirmatively satisfied that the offender’s prior good character or lack of previous convictions ‘was of assistance to the offender’ in the commission of the offences. Ordinarily, therefore, a submission from the prosecution would be required before a judge would consider whether the circumstances of the case satisfied the statutory condition. The defence would, of course, need to have the opportunity to make submissions as to why the judge should not be so satisfied. None of those things occurred in this case.
Accordingly, the applicant’s lack of previous convictions was a relevant mitigating factor in respect of the offending in charges 1 and 2. Counsel for the applicant correctly accepted, however, that once the applicant had committed the very serious offences the subject of charges 1 and 2, he was no longer a person of good character. Accordingly, his lack of previous convictions could not mitigate his sentence in respect of the subsequent offending by him that was the basis of charges 3, 4, 5 and 7.
The applicant’s age is a relevant mitigating factor. At the time of sentence he was 70 years of age. It is quite likely that he will spend most, if not all, of the rest of his life in prison.
The principles relevant to the applicant’s age (and health) were conveniently stated in R v RLP, as follows:
We approach the conjunction of the appellant’s advanced years and ill health with these propositions in mind.
(1)The age and health of an offender are relevant to the exercise of the sentencing discretion.
(2)Old age or ill health are not determinative of the quantum of sentence.
(3)Depending upon the circumstances, it may be appropriate to impose a minimum term which will have the effect that the offender may well spend the whole of his remaining life in custody.
(4)It is a weighty consideration that the offender is likely to spend the whole or a very substantial portion of the remainder of their life in custody.
(5)Other sentencing considerations may be required to surrender some ground to the need to exercise compassion to take account of the real prospect that the offender may not live to be released and that the offender’s ill health will make his or her period of incarceration particularly onerous.
(6)Just punishment, proportionality and general and specific deterrence remain primary sentencing considerations in the sentencing disposition notwithstanding the age and ill health of the offender.
(7)Old age and ill health do not justify the imposition of an unacceptably inappropriate sentence.[22]
[22]R v RLP [2009] VSCA 271, [39] (‘RLP’) (citations omitted); TRG v The Queen [2011] VSCA 337, [36] (citations omitted).
Notwithstanding the terms in which the fourth proposition is expressed in RLP, we do not consider that the age of the applicant, and the prospect that he is likely to spend the whole or a substantial portion of the rest of his life in custody, could be properly characterised as a ‘weighty consideration’. In any case, the weight given to such a factor must depend on the circumstances. In the present case, as we have discussed, the objective gravity of each of the offences committed by the applicant was particularly high. His moral culpability and responsibility for those offences were not mitigated by any relevant circumstance. Notwithstanding the weight to be given to the applicant’s age, that factor could not materially diminish the role that must be played by the sentencing considerations of general deterrence and denunciation.
There was little evidence relating to the health of the applicant. While counsel, on his plea, referred to the fact that he had a history of cardiac irregularities, high blood pressure and diabetes, and that he required two knee replacements, no medical evidence was put forward to that effect. Apparently, during the plea, the applicant was required to use a wheelchair. Nevertheless, there was little evidence or information put before the judge to demonstrate that, because of his health issues, the applicant would find prison more burdensome than otherwise.
The comprehensive report of Dr Gee precluded reliance on behalf of the applicant on any issues relating to his mental health, either as lessening the gravity of his offending or reducing his culpability, or as demonstrating that the applicant would, by reason of such a factor, find a term of imprisonment more difficult.
The judge found that the applicant’s prospects of rehabilitation ‘would be, at best, guarded’.[23] That finding was well justified in light of the views expressed, to that effect, by Dr Gee. The finding was also fortified by the subsequent convictions incurred by the applicant between 1998 and 2007.
[23]Reasons [76].
The applicant’s subsequent convictions were relevant to assessing his prospects of rehabilitation.[24] Further, they were also relevant to negate or qualify an inference, relating to the applicant’s conduct after the offending, which might otherwise arise and operate in mitigation of his sentence.[25] In other words, the applicant’s subsequent offending demonstrates that, during the period that followed the offences in this case, he did not repent or embark on a process of reformation.
[24]Rout v The Queen [2016] VSCA 126, [43].
[25]R v Rumpf [1988] VR 466, 475 (McGarvie J, with whom Young CJ and Murray J agreed). See also DPP v Rongonui (2007) 17 VR 571, 580 [37] (Maxwell P); Bellizia v The Queen [2016] VSCA 21, [75]; Rootsey v The Queen [2018] VSCA 108, [8].
While the applicant may be of advanced years, nevertheless, in light of the judge’s assessment, and in view of Dr Gee’s report and the applicant’s subsequent offences, the sentencing considerations of protection to the community and specific deterrence continued to play a legitimate role in the determination of the applicant’s sentence.
The final mitigating factor is the potential risk that the applicant might be deported. The judge correctly took into account that, as a consequence, he may be anxious about that possibility while undergoing his term of imprisonment.[26] While that factor was a relevant mitigating circumstance, the weight to be given to it was limited, particularly in a case such as this in which the offending was so serious.
[26]Guden v The Queen (2010) 28 VR 288, 294 [25]; Lima Da Costa Junior v The Queen [2016] VSCA 49, [24]–[25].
Thus, the applicant did have available a number of mitigating factors which he was entitled to have taken into account in his favour. However, when those factors are properly analysed, the weight to be accorded to them in the sentencing discretion was most substantially outweighed by the seriousness of the offending engaged in by the applicant, and by the high level of his moral culpability for that offending. Giving full weight to the mitigating circumstances, we consider that each of the individual sentences imposed on the applicant was appropriate and within the range of sentencing options available to the judge. The orders for cumulation were quite moderate. When the totality of the applicant’s offending is considered, the total effective sentence of 17 years and 4 months’ imprisonment was entirely appropriate, in our view, and was within the range of sentencing options available to the judge.
In that respect, when the facts of the case are properly understood, it can be readily perceived that the judge did accord appropriate weight to the applicant’s plea of guilty on each of the charges. If the applicant had pleaded not guilty and had stood his trial, it could be fairly expected that, in light of the seriousness of his offending, the individual sentences imposed on him, and the total effective sentence, would have been substantially higher than those imposed by the judge.
As we earlier noted, in the written case filed in support of the application for leave to appeal, counsel placed some reliance on current sentencing practices. As the High Court recently emphasised in Dalgliesh,[27] while s 5(2)(b) of the Sentencing Act provides that current sentencing practices are a relevant consideration in the determination of the sentence in each case, nevertheless that factor is only one of a number of factors which must be taken into account in the exercise of the sentencing discretion in a particular case.[28]
[27](2017) 262 CLR 428.
[28]Ibid 434 [5]–[9] (Kiefel CJ, Bell and Keane JJ), 453–4 [82] (Gageler and Gordon JJ).
Further, as this Court has noted on a number of occasions, some caution must be exercised in identifying the appropriate sentencing range by reference to previous decisions. The exercise of the sentencing discretion, in each case, is necessarily the product of a balancing of a number of different, and frequently conflicting, factors which can vary considerably between individual cases.[29] That caution is particularly relevant in a case such as this, in which the offending engaged in by the applicant was so serious, and the mitigating circumstances available to him relatively limited.
[29]Hili v The Queen (2010) 242 CLR 520, 535–537 [48]–[54] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) (citations omitted); Hudson v The Queen (2010) 30 VR 610, 617–18 [28]–[33]; Hasan v The Queen (2010) 31 VR 28, 38 [44].
Accordingly, while the sentences in the present case might be more substantial than previous sentences that have been imposed for offences of the kind committed by the applicant, they were well justified by both the gravity of the offending and the applicant’s very high moral culpability.
Conclusion
For the foregoing reasons, the applicant has failed to establish that the proposed ground of appeal is reasonably arguable. Accordingly, the application for leave to appeal must be refused.
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