Hall v The Queen
[2010] VSCA 349
•17 December 2010
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2009 0674
| BARRY WILLIAM HALL |
| v |
| THE QUEEN |
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| JUDGES | MAXWELL P and REDLICH JA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 9 November 2010 |
| DATE OF JUDGMENT | 17 December 2010 |
| MEDIUM NEUTRAL CITATION | [2010] VSCA 349 |
| JUDGMENT APPEALED FROM | R v Barry Hall [2009] VCC 0784 (Judge McInerney) |
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CRIMINAL LAW – Appeal – Sentence – Sexual penetration of a child – Breach of trust – Assessing level of criminality – Ibbs v The Queen (1987) 163 CLR 447 considered – Representative counts – Frequency of offending – Sentences not manifestly excessive – Appeal dismissed.
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| Appearances: | Counsel | Solicitors |
| For the Appellant | Mr C B Boyce | Mahonys Solicitors |
| For the Crown | Mr S Cooper | Mr C Hyland, Solicitor for Public Prosecutions |
MAXWELL P
REDLICH JA:
The appellant pleaded guilty to two representative counts of sexual penetration of a child, and was sentenced as set out below. He now appeals, by leave, against the sentence imposed.
Count Offence Maximum Sentence Cumulation 1 Sexual penetration with child aged under 10 years (representative) 20y 5y BASE 2 Sexual penetration with child aged under 16 years (representative) 10y 2y 6m 12m TES: 6y 6AAA TES: 8y
NPP: 3y NPP: 4y
Circumstances of the offending
The appellant was a very close friend of the victim’s father. He was looked upon as an uncle by the victim (R) and his siblings. Most weekends, R and his family would visit the appellant’s home to watch movies. The movie room was set up like an old movie theatre, with a projector room at the back.
The sexual abuse occurred during the years when R was between eight and 12 years old (1981-1985). It occurred in the projector room, while the rest of R’s family were watching a movie. The appellant would approach R whilst he was watching a movie, tap him on the shoulder and ask him to come into the projection room. R would go to the projection room where he would be seated on a stool and would watch the movie through the projection room window. The appellant would then remove R’s lower clothing and place R’s penis into his mouth. The appellant would masturbate whilst performing oral sex on R. There are two counts, both representative. The first count covers the period until R turned 10, at which point a different maximum penalty for the offence became applicable (as the table shows).
Almost 20 years later, in 2003, R visited the appellant at his home and asked him about the sexual abuse. R recorded the conversation. The appellant admitted having sexually interfered with R. At R’s request, the appellant then attended a meeting with him and his family, at which the appellant again admitted the sexual abuse. R had organised this meeting because he wanted his father to hear the appellant’s admission for himself. R’s father had previously refused to believe R when he reported the sexual abuse. According to R’s statement to police:
I knew Mum believed me but I knew Dad didn’t. I couldn’t work out why Dad was defending him and not his own son. Dad still kept defending him even years later so I decided I wanted to prove to him that it actually happened.
Although R’s father ultimately accepted that the allegations were true, the breach between father and son has never healed. According to R’s statement:
This assault on me has cost me dearly over the years. My relationship with my father has been sacrificed because I can no longer trust him as he refused to believe me about the incident at the time it happened, and still today our relationship is strained and I fear I will never have that father/son relationship with him again.
This is, in our view, a powerful demonstration of the consequences for R of the appellant’s breach of trust. It was a trust reposed in him by R’s parents, and by R himself. Presumably, the father’s disbelief of R’s allegations was based on a refusal to accept that his close friend could possibly have committed such a shocking, and sustained, breach of trust.
Representative counts: the frequency of the offending
One of the grounds of appeal was that the judge had erred:
in failing to determine with sufficient certainty the factual basis of each representative count.
Although this ground was not pressed in oral argument, the issue raised is relevant to other grounds.
The Crown summary included the following statement from R:
I’ve never been to Barry’s house to watch a movie without this happening to me. I am 100% sure about this. It happened every time I went there.
The summary added that R would attend the appellant’s premises ‘two to three times per month’. The summary also pointed out that, at interview, the appellant admitted having had oral sex with R on only one occasion.
During argument on the plea, defence counsel (who did not appear on this appeal) dealt with this matter in these terms:
We don’t want to talk about out of court discussions, but the suggestion, your Honour, that there was – this took place on many, many occasions unspecified. We’re not here to contend now because of the plea and because of certain discussions that took place long before either of us were involved in the thing, but there was some representative counts here. But that the conduct – and I’m not suggesting that this is the high point of the plea, but there was not as much conduct between these two as otherwise - - -
The following exchange then occurred:
His Honour: No, but it’s clearly representative and far more conduct than appeared to be admitted to in the record of interview.
Defence counsel: Yes, your Honour. The record of interview - - -
His Honour: The record of interview suggests one occasion only.
Defence counsel: Yes, your Honour.
His Honour: I’ve got to take this as representative, although without going into the matter, it’s not necessarily agreed that it happened every time, is that what you put?
Defence counsel: No. That’s so, your Honour, and I made this clear to my friend this morning that that was our stance. But, in any event, we agree to the fact that those – that took place.
In his reasons for sentence, the judge noted that this issue had been debated on the plea and said:
It is, in these circumstances, somewhat difficult for me to make a precise determination as to the factual circumstances. However as the Crown did not seek to re-open the matter, I sentence on the basis of both pleas being representative, not on the basis that it occurred every time the child went to the house, and that such crimes occurred on many occasions.[1]
[1]R v Hall [2009] VCC 0784, [4].
It was common ground on the appeal that his Honour should be taken to have sentenced on the basis that ‘such crimes occurred on many occasions’, although not every time R went to the house. Properly, in our view, counsel for the appellant acknowledged that it was open to the judge to be so satisfied. His Honour also correctly noted, in accordance with decisions such as DPP v McMaster[2] that, the counts being representative, he was entitled to conclude that the behaviour was not isolated and that the totality of the behaviour gave ‘the full context of these offences’.
[2](2008) 19 VR 191.
Were the sentences outside the applicable range?
The principal thrust of the appellant’s submissions was that the sentences imposed were manifestly excessive, having regard to the relevant mitigatory factors and current sentencing practices. As counsel for the appellant accepted, for this ground to succeed it was necessary to demonstrate that it was not reasonably open to the judge to impose these sentences on this offender for this offending.[3] As Maxwell P said in R v Stuttard:[4]
When the sentencing task has obviously been performed carefully and cogently by the sentencing judge, to whom our law confides that function, it will always be difficult, in my view, for a submission of manifest excess to succeed. The appellant must persuade the appeal court that, despite the sentencing function apparently having been conscientiously discharged, nevertheless the judge went so badly wrong … that this Court should be satisfied that the discretion was not properly exercised at law, such that it would fall to this Court to exercise the discretion afresh.[5]
[3]R v Abbott (2007) 170 A Crim R 306, [13]–[15].
[4][2006] VSCA 112.
[5]Ibid [26]. See also Bennett v The Queen [2010] VSCA 280, [29] (Weinberg JA).
Counsel for the appellant commenced his submission by acknowledging that the aggravating features of the offending could not be ignored, as they plainly could not. He referred in this context to the seriousness of the offending; the fact that the counts were representative; the serious and prolonged nature of the breach of trust; the serious effect on R; and the importance of sentencing as a vehicle of social rehabilitation.[6] To this we would add the very significant disparity in age between the appellant, who was aged 43 when the offending began, and R who was only eight at that time.
[6]See Director of Public Prosecutions v Neethling (2009) 22 VR 466, 478.
As counsel pointed out, however, the appellant was able to call in aid some significant mitigating features, as follows:
·he was aged 71 at the time of sentence;
·there was a delay of some four years between the appellant’s admissions of wrongdoing, in his conversation with R, and the date of sentence;
·the appellant had no prior convictions;
·his early pleas of guilty;
·his remorse;
·his good work history and strong evidence of good character; and
·an absence of offending in the period since the offences against R ceased.
The submissions for the appellant drew attention to the tables attached to the judgment of this Court in Director of Public Prosecutions v CPD.[7]According to the submission, the penalty of five years imposed here on count 1 ‘stands well above the average and mean for this offence even allowing for the increase in maximum penalty to 25 years’ imprisonment that took place in 1997.’
[7](2009) 22 VR 533 (‘CPD’).
As the Court said in CPD,[8] however, the enquiry into ‘current sentencing practices’ – which a sentencing judge is required by s 5(2)(b) of the Sentencing Act 1991 (Vic) to undertake – is an enquiry:
directed particularly, but not exclusively, at the kinds of sentences imposed in comparable cases.[9]
The enquiry as to current sentencing practices is designed to expose the appropriate range of sentences. Aggregate statistics, or tables of undifferentiated sentences for the offence over a period of years, will usually provide little assistance in that task.
[8]Ibid.
[9]Ibid [77].
The present case is a good illustration. Plainly enough, sentences imposed for single counts of sexual penetration are not comparable cases and are unlikely to provide guidance as to the appropriate range in a case such as the present, involving offending of such duration and frequency and involving such a grave breach of trust on every occasion when the offence was committed.
In our view, it was well open to the sentencing judge to impose the sentences which he did, giving full weight to the mitigating factors to which we have referred. That includes, of course, the appellant’s age.
A separate attack was made on the discount of 25 per cent for the pleas of guilty. In accordance with s 6AAA of the Sentencing Act 1991 (Vic), the judge stated that, but for the plea of guilty, he would have imposed a total effective sentence of eight years and a non-parole period of four. For the reasons recently given in Scerri v The Queen,[10] however, the discount identified in the s 6AAA statement does not give rise to a stand-alone ground of specific error. The weight given to the plea of guilty is but one of the factors to be considered in relation to the ground of manifest excess.
[10][2010] VSCA 287.
Assessing the appellant’s criminality
A separate ground of appeal contended that the judge had misdirected himself in assessing the appellant’s criminality. The relevant paragraph of the sentencing reasons was as follows:
It is necessary of course for this court to assess the criminality. The High Court in R v Ibbs[11] said it was necessary to assign on the scale of heinousness the degree of culpability that relates to the criminality in this instance, where the type of behaviour can vary considerably with the same charge. I assessed Mr Hall’s criminality somewhere between mid-range to high for both counts. The only thing that can be said is that there are more grave types of assaults that this court has to deal with. Those assaults, it seems to me in this instance, would involve penile penetration and violence. We unfortunately have to deal with matters that would rate such behaviour even higher. But as I say as best I can, that is where I rate it.
[11](1987) 163 CLR 447, 452 (‘Ibbs’).
In Ibbs,[12] the High Court was dealing with an appeal against sentence by a person convicted of the offence of sexual penetration without consent. The provision creating the offence identified several different categories of conduct which could constitute the offence. The Court said:
The inclusion of several categories of sexual penetration within the offence described as sexual assault carries no implication that each category of sexual penetration is as heinous as another if done without consent. When an offence is defined to include any of several categories of conduct, the heinousness of the conduct in a particular case depends not on the statute defining the offence but on the facts of the case. In a case of sexual assault, a sentencing judge has to consider where the facts of the particular case lie in a spectrum at one end of which lies the worst type of sexual assault perpetrated by any act which constitutes sexual penetration as defined. As Dwyer CJ said in Reynolds v Wilkinson:[13] ‘Crimes bearing the same general description have not equally evil content or characteristics, and offenders also differ in themselves.’[14]
[12]Ibid.
[13](1948) 51 WALR 17, 18.
[14]Ibbs (1987) 163 CLR 447, 452.
Plainly enough, what their Honours were seeking to elucidate in this passage was how a sentencing court should assess ‘the heinousness of the conduct in a particular case’. Their Honours referred to ‘a spectrum at one end of which lies the worst type of sexual assault …’. The sentencing judge must decide where in that spectrum the case at hand is to be located. Axiomatically, that assessment must depend on the facts of the offending. In a case like the present, the relevant facts include the respective ages of perpetrator and victim and the relationship of trust between them. As already discussed, these features support a conclusion that the conduct is more heinous than if they were not present.
The submission for the appellant, however, was that the decision in Ibbs[15] required the sentencing court to consider, in assessing the gravity of the offending, ‘the personal circumstances of the offender’. This would include, for example, the presence or absence of prior convictions. In our view, this submission must be rejected. It confuses two distinct aspects of the sentencing task. The first is to assess the ‘heinousness of the conduct’, that being the matter with which Ibbs[16] was concerned; the second is to consider the offender’s personal circumstances, which may go in mitigation of penalty.
[15]Ibid.
[16]Ibid.
The judge’s assessment of the appellant’s criminality as ‘somewhere between mid-range and high for both counts’ was unimpeachable, in our view, for the reasons already given.
Conclusion
The appeal against sentence must be dismissed.
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