Harlow (a pseudonym) v The Queen
[2018] VSCA 234
•14 September 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0193
| OLIVER HARLOW (A PSEUDONYM)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]To ensure there is no possibility of the identification of the victims of sexual offending, this judgment has been anonymised by the adoption of pseudonyms in place of the names of the applicant, the complainants and the complainants’ mother.
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| JUDGES: | PRIEST, BEACH and WEINBERG JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 13 August 2018 |
| DATE OF JUDGMENT: | 14 September 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 234 |
| JUDGMENT APPEALED FROM: | [2017] VCC 1107 (Judge Smallwood) |
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CRIMINAL LAW – Conviction – Appeal – Incest – Indecent act with child under 16 – Course of conduct charges – Whether convictions unsafe and unsatisfactory – Whether evidence ‘so vague and nebulous’ as to deprive the accused ‘of trial fairness’ – Level of particularity of incidents required for course of conduct charges – Whether evidence must be capable of being distilled into separate incidents – Proposed ground of appeal not reasonably arguable – Application for leave to appeal against conviction refused – Clause 4A of Schedule 1 of the Criminal Procedure Act 2009.
CRIMINAL LAW – Sentence – Appeal – Multiple charges including multiple charges of incest and committing an indecent act with a child under 16 – Course of conduct charges – Total effective sentence of 21 years, with non-parole period of 15 years – Serious examples of serious offences – No remorse – Aggravating circumstances – Totality – Manifest excess – No totality error – Sentence not manifestly excessive – Appeal dismissed – Sentencing Act 1991, ss 5(2)(b), 5(2F), 6B and 6E.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Dr M Fitzgerald | Dr Martine Marich & Associates |
| For the Crown | Mr C Boyce SC | Mr J Cain, Solicitor for Public Prosecutions |
PRIEST JA
For the reasons given by Beach and Weinberg JJA, I agree that the application for leave to appeal against the convictions on charges 8, 9 and 10 must be refused.
I respectfully differ from their Honours concerning the fate of the sentence application. Although I do not regard the individual sentence on any charge as excessive,[2] in my opinion the total effective sentence — produced by the orders for cumulation[3] — is manifestly excessive, as is the non-parole period.[4] Given that conclusion, it is unnecessary to attempt to attribute specific error[5] (although I consider it likely that the sentence has resulted through a misapplication of the principle of totality,[6] and an overestimation of the comparative seriousness of the offending overall).[7]
[2]See ground 2(b) and (c).
[3]See ground 1(b) and (c).
[4]See ground 2(a).
[5]See Dinsdale v The Queen (2000) 202 CLR 321, 325–6 [6] (Gleeson CJ and Hayne J). See also DPP v Weybury (2018) 84 MVR 153, 169 [50]; Leimonitis v The Queen [2018] VSCA 198, [32]; Honeysett v The Queen [2018] VSCA 214, [37]–[38].
[6]In his Reasons for Sentence the judge observed:
There is not much else that can be said for you. The length of the sentence will be very significant indeed as I discussed with your counsel. Really the only matters that you have going for, other than the guilty pleas, were concepts of totality and the desirability of not imposing a crushing sentence. Crushing is very much, I think, in the eye of beholder. It should not stop a judge from imposing what he considers or she considers to be the appropriate sentence for offending as serious as this.
[7]See ground 1(a) and 3.
In any event, I would grant leave to appeal against sentence and allow the appeal. I would impose the same individual sentence on each charge as did the primary judge, but would make orders for concurrency[8] and cumulation as between the individual sentences so as to produce a total effective sentence of 17 years’ imprisonment, upon which I would fix a non-parole period of 13 years. All other orders made by the sentencing judge should be confirmed. My reasons follow.
[8]As observed below at [26], pursuant to s 6F of the Sentencing Act 1991, the applicant was sentenced as a serious sexual offender in respect of all of the charges on Indictment C1610841, except for the charge of assault. Thus, on all charges on that indictment save for charge 16, there is a legislative direction enshrined in s 6E of the Act that those sentences be served cumulatively unless otherwise directed. As I have previously observed, strict compliance with the legislative regime concerning concurrency and cumulation is thus made somewhat cumbersome. See Reid (a Pseudonym) v The Queen (2014) 42 VR 295, 323 [119] (‘Reid’).
There can be little doubt that the sentence settled upon by the sentencing judge was heavily influenced by his assessment of the seriousness of the offending. His Honour made that clear in the course of his sentencing remarks:
The offending took place essentially over a decade. I can safely say that in my 30-odd years’ experience as a criminal lawyer I do not believe I have come across such a serious example of this sort of offending.
It cannot be gainsaid that the applicant’s offences — in particular, those perpetrated against the children Codie, Brendan, Leroy and Claire — were serious examples of serious offences, and were aggravated by the matters identified by the other members of the Court.[9] Nor can it be denied that the applicant’s offending was repetitive and occurred on a multitude of occasions (particularly where Brendan was concerned), or that it occurred ‘essentially over a decade’. And, with respect to the offences against the three boys, it was not mitigated by a plea of guilty.
[9]See [63] above.
Notwithstanding the sentencing judge’s reflections on his experience of similar offending, however, and further notwithstanding the fact that the applicant’s offending undoubtedly was very serious, regrettably the applicant’s offending does not represent the most serious example of this kind of offending encountered by this Court. So much is demonstrated by a brief survey of the cases reviewed in Reid;[10] in particular, the multiple complainant cases, OJA,[11] Bellerby[12] and FD;[13] and, perhaps, so far as single complainant cases are concerned, RSJ,[14] DP[15] and PDI.[16] Those cases were, of course, decided before the High Court delivered judgment in Dalgliesh[17] (to which I will shortly turn), but, in my view, they remain relevant to determining where the present case sits in the spectrum of seriousness of cases of incest (and associated offending).[18] Those pre-Dalgliesh cases remain important, since — whilst acknowledging that, generally speaking, every case of incest perpetrated by a father or step-father against his children or step-children is serious; observing that the seriousness of particular offending is usually a matter of impression; and recognising that the circumstances of no two cases will ever be wholly the same — it seems to me that none of the incest cases decided by this Court post-Dalgliesh possess features objectively as serious as those in the present case, or as serious as those in cases like OJA, Bellerby or FD.[19]
[10]Reid (a Pseudonym) v The Queen (2014) 42 VR 295, 315–19 [95]–[105] (Priest JA) (‘Reid’).
[11]Director of Public Prosecutions v OJA (2007) 172 A Crim R 181 (Nettle, Ashley and Redlich JJA) (‘OJA’).
[12]R v Bellerby [2009] VSCA 59 (Kellam and Dodds-Streeton JJA, and Vickery AJA).
[13]FD v The Queen [2011] VSCA 8 (Redlich and Weinberg JJA).
[14]RSJ v The Queen [2012] VSCA 148 (Warren CJ, Redlich and Hansen JJA).
[15]DP v The Queen [2011] VSCA 1 (Weinberg JA and King AJA).
[16]PDI v The Queen (2011) 216 A Crim R 577 (Redlich and Harper JJA, and Robson AJA).
[17]DPP v Dalgliesh (2017) 349 ALR 37 (‘Dalgliesh’).
[18]R v Kilic (2016) 259 CLR 256, 266 [19] (Bell, Gageler, Keane, Nettle and Gordon JJ). See Dalgliesh, 46–7 [45].
[19]DPP v Dalgliesh [2017] VSCA 360 (9½y/6y); Thrussell (a Pseudonym) v The Queen [2017] VSCA 386 (6y/4y); Carter (a Pseudonym) v The Queen [2018] VSCA 88 (8y/5y); Grantley (a Pseudonym) v The Queen [2018] VSCA 112 (9y/7y); Phillips (a Pseudonym) v The Queen [2018] VSCA 114 (11y 5m/9y); DPP v Walsh (a Pseudonym) [2018] VSCA 172 (7y 4m/5y).
In Dalgliesh, the respondent had pleaded guilty to one charge of incest and one charge of sexual penetration of a child under 16 years, committed against one stepdaughter; and one charge of incest and one act of indecent assault, committed against another stepdaughter (the victims being sisters). The act of incest perpetrated against the first victim, aged 13 years, resulted in her pregnancy. On an appeal to this Court by the Director against sentence,[20] this Court as then constituted observed:[21]
[20]The sentencing judge imposed a sentence of 3 years and 6 months’ imprisonment on one charge of incest; a sentence of 3 years’ imprisonment on a second charge of incest and on a charge of sexual penetration of a child under 16; and a sentence of 1 year and 6 months’ imprisonment on a charge of indecent assault. Orders for cumulation resulted in a total effective sentence of 5 years and 6 months’ imprisonment, upon which a non-parole period of 3 years was fixed.
[21]DPP v Dalgliesh [2016] VSCA 148, [64] (Maxwell P, Redlich and Beach JJA).
That current sentencing practices are at such low levels clearly demonstrates that the principles of sentencing are not being consistently and appropriately applied. Put simply, current sentencing does not reflect the objective gravity of such offending or the moral culpability of the offender. There is a lack of differentiation between the different categories of seriousness, and that has resulted in an unworkably narrow band within which judges are able to sentence for offending of this nature.
And also:[22]
[22]Ibid, [128].
In our view, current sentencing for incest reveals error in principle. The sentencing practice which has developed is not a proportionate response to the objective gravity of the offence, nor does it sufficiently reflect the moral culpability of the offender. Sentences for incest offences of mid-range seriousness must be adjusted upwards. That is a task for sentencing judges and, on appeal, for this Court. The criminal justice system can be — and should be — self-correcting.
And ultimately:[23]
But for the constraints of current sentencing which — as we have said —reflect the requirements of consistency, we would have had no hesitation in concluding that the sentence imposed on [the respondent] was manifestly inadequate. …
[23]Ibid, [132].
To my mind, there is a tension between that last observation and the Court’s earlier reference to OJA, which was accompanied by the observation that:[24]
It is well recognised that existing sentencing practice does not constrain a judge from imposing a higher or lower sentence than the prevailing practice. The highest case does not create a ceiling, nor the lowest a floor, beyond which sentences cannot go.[25]
[24]Ibid, [118].
[25]The Court cited DPP v DDJ (2009) 22 VR 444, 461 [70] (Maxwell P, Vincent and Neave JJA), where it was observed that a judge who concludes that current sentencing practices are not consistent with the statutory maximum for the offence in question is not constrained by those practices. Rather, the judge, while paying due regard to current practices, is obliged to sentence consistently with the maximum (subject to considerations of fairness which may arise).
By grant of special leave, the Director appealed to the High Court contending that the Court of Appeal erred in elevating the significance of current sentencing practices so that they were determinative of the issue. The appeal was allowed, Kiefel CJ, Bell and Keane JJ holding that ‘the Court of Appeal erred by treating the range established by current sentencing practices as decisive of the appeal before it’.[26] By virtue of s 5(2)(b) of the Sentencing Act 1991, current sentencing practices are a factor that a court must take into account when sentencing an offender, but ‘that factor is only one factor, and it is not said to be the controlling factor’.[27] Section 5(2)(b) of the Act ‘informs the process of instinctive synthesis as a statutory expression of the concern that a reasonable consistency in sentencing should be maintained as an aspect of the rule of law’; but reasonable consistency in the application of the relevant legal principles does not ‘require adherence to a range of sentences that is demonstrably contrary to principle’.[28]
[26]Dalgliesh, 39 [2]. See also 47 [48].
[27]Ibid, 40 [9].
[28]Ibid, 48 [50].
In their separate judgment, Gageler and Gordon JJ emphasised that sentences are not binding precedents, and, although an examination of sentences imposed in comparable cases may inform the task of sentencing, such examination does not fix boundaries that ‘as a matter of practical reality’ bind the court.[29] Section 5(2)(b) requires the court to have regard to current sentencing practices, and every other matter listed in s 5(2). Nothing in s 5(2), their Honours observed, suggests that current sentencing practices should be treated in a conceptually different manner from any of the other listed matters. Current sentencing practices should not be regarded as setting boundaries on what a court may reasonably impose as a sentence.[30] The Court of Appeal’s ‘treatment of current sentencing practices as fixing quantitative boundaries within which future sentences were required to be passed evidently infected its consideration of manifest inadequacy’.[31]
[29]Ibid, 54-5 [83].
[30]Ibid, 54 [82].
[31]Ibid, 55 [84].
Despite what was said in Dalgliesh, it is apparent that in earlier judgments this Court had not consistently regarded current sentencing practices as a ‘controlling factor’ in the imposition of sentence. That much is made clear by OJA, an aspect of which[32] was referred to with apparent approval by Kiefel CJ, Bell and Keane JJ.[33]
[32]OJA, 196 [30]–[31].
[33]Dalgliesh, 48 [51].
Objectively, the offending in OJA was more serious than the applicant’s (albeit that the applicant’s offending is, to repeat what I have said, serious). The circumstances of the case were summarised in Reid as follows:[34]
[OJA] was a case of very serious offending by three individuals — OJA, WBA and EBD — involving sexual predation on children of tender years, acts of sexual depravity of an almost unimaginable kind (which included the use of sex aids) and the filming of some of the abuse. It was a Crown appeal. At the time of offending, OJA was between 43 and 49 years of age. He pleaded guilty to 43 separate charges, being nine counts of incest; 17 counts of indecent act with a child under 16 years of age; 15 counts of taking part in an act of sexual penetration with a child under 16 years of age; one count of producing child pornography; and one count of possessing child pornography. He was sentenced to a total effective sentence of 15 years’ imprisonment, with a non-parole period of 11 years. WBA was between 34 and 37 years of age at the time of offending. He pleaded guilty to 33 charges, being nine counts of indecent act with or in the presence of a child under 16 years’ of age; 20 counts of incest; one count of attempted incest; one count of producing child pornography; and one count of possessing child pornography. His total effective sentence was 11 years’ imprisonment, upon which a non-parole period of seven years was fixed. EBD, a female, was, at the time of offending, between 32 and 35 years of age. She pleaded guilty to 34 charges, being five counts of indecent act with or in the presence of a child under 16 years’ of age; 16 counts of incest; one count of attempted incest; one count of producing child pornography; and one count of possessing child pornography. The appeals with respect to the sentences imposed on OJA and EBD were dismissed. With respect to WBA the appeal was allowed, and he was resentenced to a total effective sentence of 13 years, upon which a non-parole period of nine years was fixed (although the sentence passed was moderated to give effect to the principle of double jeopardy).
OJA’s offences included penetrating his daughter’s mouth; digital penetration of his daughter’s vagina; having his daughter penetrate his anus with a vibrator and her fingers; penile-vaginal penetration of his daughter; penile-anal penetration of his daughter; penetration of his daughter’s anus with different objects, including a vibrator; and a host of other sexual offending. Oral and digital-vaginal penetration occurred when his daughter was as young as four years (and over a number of years thereafter), and penile-vaginal and penile-anal penetration when she was a mere six years of age (and for years following). Some of the sexual activity was videotaped. Moreover, OJA offended against other children. WBA — whose sentence was increased on appeal — offended against his biological son and step-children. Part of his offending involved performing various sexual acts in the presence of, and in concert with, EBD. There were acts of oral sex performed on male and female children; anal penetration of children with his penis; lingual penetration of the anus of children and penetration of his own anus by children; penile-vaginal penetration; and a host of other repulsive sexual misconduct, some of which was filmed.
[34]Reid, 315–16 [96]–[97] (citations omitted).
In OJA, Nettle JA (with whom Ashley and Redlich JJA agreed) made a number of observations about the applicable guiding principles, including the following:[35]
I start from the approach that there is no sentencing tariff as such. Apart from the maximum sentence prescribed by Parliament, the intuitive synthesis approach to sentencing implies an absence of necessary relationship between one case and another. Accordingly, as the law stands, any notion of a mathematical norm above or below which a case might be cast according to aggravating increments and mitigating decrements is precluded by a general prohibition on the use of two part sentencing processes. At the same time, it is of the nature of sexual offences that some instances of an offence are more serious than others. Since that is so, there is a need for at least some degree of comparison. The requirement to have regard to ‘current sentencing practices’ is properly to be understood in that context and the notions of manifest excessiveness and manifest inadequacy are similarly informed.
Secondly, the need to have regard to current sentencing practices does not mean that the measures of manifest excessiveness and manifest inadequacy are capped and collared by the highest and lowest sentences for similar offences hitherto imposed. In fact, as in theory, each case is different and so it is always possible that a sentence may properly rise above or fall below the greatest and lowest sentences previously imposed. At the same time, however, the nature of criminal conduct is such that there is not infrequently sufficient similarity between two cases to imply that sentences should be comparable and, if they are not, that something has gone awry.
Thirdly, and importantly, it should not be thought that the statutory requirement to have regard to current sentencing practices forecloses the possibility of an increase or decrease in the level of sentences for particular kinds of offences. Over time, views may change about the length of sentence which should be imposed in particular cases and, when that occurs, the notions of manifest excessiveness and manifest inadequacy will be affected. Accordingly, to say of an individual sentence of six years, or a total effective sentence of 15 years, that it is near as large as any before imposed for offending of this kind, is not necessarily an answer to the question of whether it is manifestly inadequate. One must allow for the possibility that sentences to this point have simply been too low.
[35]OJA, 195–6 [29]–[31]. See also DPP v Dalgliesh [2016] VSCA 148, [118].
Hence, despite what this Court had ultimately concluded in Dalgliesh, as OJA exemplifies, this Court earlier had recognised that:
· there is ‘no sentencing tariff as such’;
· some instances of sexual offending are, however, more serious than others;
· it is necessary therefore that there be some degree of comparison;
· the requirement to have regard to current sentencing practices is to be understood in that context;
· notions of manifest excessiveness (and inadequacy) are necessarily informed by such comparisons;
· but that does not mean that ‘the measures of manifest excessiveness and manifest inadequacy are capped and collared by the highest and lowest sentences for similar offences hitherto imposed’;
· since each case is different, it is always possible that a sentence may properly rise above or fall below the greatest and lowest sentences previously imposed; and
· it should not be thought that the statutory requirement to have regard to current sentencing practices ‘forecloses the possibility of an increase or decrease in the level of sentences for particular kinds of offences’, since one ‘must allow for the possibility that sentences to this point have simply been too low’.
OJA is significant in the present context because the Court did not feel itself constrained by the highest or lowest sentences previously imposed for similar offences. Moreover, OJA was decided at a time when there had already been a significant increase in the levels of sentences for incest.
Indeed, prior to Dalgliesh, it had been recognised that sentences for incest had, since the mid-1980s, been increasing. Thus, it was observed in Reid:[36]
In this state, from about the mid-1980s, there started a dawning realisation that the ‘tariff’ for incest was inadequate.[37] That realisation was consistent with a change in attitude to the offence of incest elsewhere in Australia[38] and overseas. Thus, in R v Accused,32[39] Cooke P, delivering the judgment of the New Zealand Court of Appeal (Cooke P, Casey, Hardie Boys, McKay and Thomas JJ), when referring to R v B (an accused)[40] — decided a decade earlier — observed that it ‘marked the beginning in New Zealand of the very disturbing increase in the revealed incidence of familial child abuse which appears to be virtually a worldwide phenomenon’. And in Canada, on two Crown appeals against sentence, in R v S (WB) the Alberta Court of Appeal (Major JA, McDonald and Quigley JJ) said of offences involving sexual abuse of children by those in loco parentis:[41]
The essential point is that the sentences for this offence should be more severe than might have been thought appropriate a decade or two ago when society and the courts were not as aware as they are now of the fact that these offences are a plague, and when judges were not as conscious as we now are of the need to impose sentences to denounce these crimes and to deter others from committing such abhorrent offences.
Up until 1985, the highest total effective sentence and non-parole period imposed in this state for the crime of incest was in R v C,[42] where a head sentence of 12 years’ imprisonment with a minimum term of 10 years was imposed. A sentence of that order would no longer seem remarkable. Changes in attitudes have seen a gradual increase in sentences, to the extent that sentences of imprisonment in ‘double figures’ for incest and related offences are not uncommon.[43]
[36]Reid, 311–12 [86]-[87] (Priest JA, Maxwell P and Whelan JA agreeing). Compare Dalgliesh, 49–50 [57]–[58].
[37]R v Kaye (1986) 22 A Crim R 366 at 367 per Young CJ; R v Bahen (unreported, Supreme Court, Marks, Hampel and McDonald JJ, 28 June 1993); R v Sposito (unreported, Supreme Court, Marks, Hampel and McDonald JJ, 8 June 1993).
[38]R v J (1982) 45 ALR 331 at 335–6 per Toohey J; R v G (1989) 98 FLR 32.
[39][1994] 3 NZLR 157 at 161.
[40][1984] 1 NZLR 261.
[41](1992) 73 CCC (3d) 530 at 551.
[42]R v C (1983) 10 A Crim R 352.
[43]Director of Public Prosecutions v GJL (2004) 7 VR 366 (10y/7y); Director of Public Prosecutions v DCR [2004] VSCA 103 (11½y/9y3m); R v Elliott [2005] VSCA 37 (12y/9y); Director of Public Prosecutions v OJA (2007) 172 A Crim R 181 (15y/11y; 13y/9y; 8y/4y); Director of Public Prosecutions v EB (2008) 186 A Crim R 314 (11y/7y); R v Bellerby [2009] VSCA 59 (15y/9y); R v AP [2009] VSCA 249 (12y/6½y); R v RLP (2009) 213 A Crim R 461 (15y7m/10½y); GJW v R [2010] VSCA 193 (10y/8y); DP v R [2011] VSCA 1 (12y/10y); FD v R [2011] VSCA 8 (12y/9y); MP v R [2011] VSCA 78 (12y/9½y); LDF v R [2011] VSCA 237 (12y/9y); IRJ v R [2011] VSCA 376 (11y/9y); PDI v R (2011) 216 A Crim R 577 (15y/10½y); CF v R [2012] VSCA 22 (12y/8y); WC v R [2012] VSCA 30 (12y/8½y); HRA v R [2012] VSCA 88 (12y/9y); Director of Public Prosecutions v Jones (2013) 40 VR 267.
Further, in Zhuang[44] (a case of murder) this Court had affirmed that sentences passed in other cases are not precedents which must be followed unless they are capable of being distinguished,[45] and that every sentence must be the product of the intuitive synthesis of all factors relevant to the particular case, including the circumstances of the offender and the offence, and the aggravating and mitigating features.[46] A general overview of sentences imposed for offences of a similar character might, however, play some part in informing the instinctive synthesis, particularly insofar such an overview may provide a general guide to current sentencing practices.[47] The Court later went on to observe:[48]
It should be emphasised that whilst like cases provide some insight as to the relevant current sentencing practice, as we have said, sentences passed in other like cases are not precedents which must be followed unless they are capable of being distinguished. The question whether a sentence is manifestly excessive or inadequate cannot be answered by a numerical comparison with other sentences imposed in other cases.[49] As the High Court explained in Munda,[50] past sentencing decisions do not define the limits of the sentencing discretion. Every case must turn on its own facts — including the particular features of aggravation and mitigation, and the individual circumstances of the offender and the offence — and be the product of the intuitive synthesis of those facts. And as was further said by the court in Hudson:[51]
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.
Resort to so-called comparative sentencing cases must not be permitted to obscure the essential sentencing task, which is, in the exercise of discretion, to craft a sentence which reflects all factors relevant to the individual case.
[44]Director of Public Prosecutions v Zhuang (2015) 250 A Crim R 282 (Redlich, Priest and Beach JJA).
[45]Citing DPP v Adajian [1999] VSCA 105, [28] (Callaway JA). See also Dalgliesh, 54-5 [83] (Gageler and Gordon JJ).
[46]Ibid, 292 [30].
[47]Ibid.
[48]Ibid, 294–5 [36]–[37].
[49][Hili v The Queen (2010) 242 CLR 520], 538-9 [59].
[50]Munda v Western Australia (2013) 249 CLR 600, 631 [95].
[51]Hudson v The Queen (2010) 30 VR 610, 616 [27].
Where, as in this case, particular offending represents a grave instance of an offence, but is not so grave as to warrant the imposition of the maximum prescribed penalty, a sentencing judge is bound to consider where the facts of the particular offending and of the offender lie on the spectrum that extends from the least serious instances of the offence to the worst category (properly so called).[52] The applicant’s offending certainly does not represent one of the least serious examples of offending of the relevant kind, but neither can it be said to be one of the most serious examples, the offending in cases such as OJA, Bellerby and FD objectively being worse examples.
[52]R v Kilic (2016) 259 CLR 256, 266 [19]; Semaan v The Queen [2017] VSCA 261, [70].
Plainly, factual comparisons between cases may only be carried so far. Every case must turn on its individual facts, and every sentence must be the product of an instinctive synthesis of those facts. But the administration of criminal justice operates as a system. It should be systematically fair, so that there should be reasonable consistency in the sentencing of offenders.[53] Like cases should be treated in a like manner, and different cases differently.[54] And although the consistency sought is in the application of relevant legal principles,[55] and does not require that there be ‘numerical equivalence’ between sentences (capable of mathematical expression),[56] reasonable consistency in sentencing is a requirement of justice.[57]
[53]Wong v The Queen (2001) 207 CLR 584, 591 [6] (Gleeson CJ) (‘Wong’).
[54]Wong, 591 [6]; Hili v The Queen (2010) 242 CLR 520, 535–6 [49] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) (‘Hili’); Dalgliesh, 47–8 [49].
[55]Hili, 535–6 [49]; Dalgliesh, 47–8 [49].
[56]Hili, 535–6 [48]–[49].
[57]Wong, 591 [7].
OJA involved persistent offending against several children of an order of depravity not matched in the present case (albeit that the applicant’s offending is very serious). Yet, notwithstanding that the Court did not think that the sentences to be imposed in that case were ‘capped and collared’ by sentences previously imposed in other cases, one of the male offenders, OJA, was left with his total effective sentence of 11 years’ imprisonment, with a non-parole period of seven years, undisturbed; and the other male offender, WBD, had his sentence increased to a total effective sentence of 13 years, with a non-parole period of nine years (albeit that the sentence was moderated to reflect the then operative principle of double jeopardy). Making due allowance for differing personal circumstances, and the fact that the offenders in OJA pleaded guilty whereas the applicant for the most part did not, the sentence imposed on the applicant stands in stark relief to the sentences in OJA and many of the other sentencing cases collected and referred to in Reid. Indeed, it seems to me that there is a marked inconsistency between the sentence in this case, and the sentences imposed in those cases.
The marked inconsistency between this and other sentencing cases does not, of course, lead irresistibly to the conclusion that the sentence in this case is manifestly excessive. At the risk of repetition, every case must depend on its own facts; and sentences imposed in other cases do not represent precedents that must be followed unless capable of being distinguished. The system must, however, aspire to — and strive for — a reasonable level of consistency in sentencing between cases which are roughly comparable. Even acknowledging that we may live in a time of rising sentences, and making due allowance for distinguishing features, the inconsistency between the sentence in this case and others reinforces my strongly held impression that the sentence imposed in this case is beyond the range of those open in the proper exercise of the sentencing discretion. It is, in my view, manifestly excessive.
Once more to traverse a much travelled path, it was observed in Weybury that:[58]
[58]DPP v Weybury (2018) 84 MVR 153, 169 [50] (Priest JA). Although the extracted passage related to manifest inadequacy, similar considerations are applicable to the determination of manifest excess.
… a conclusion that a sentence is manifestly inadequate [or excessive] does not depend upon attribution of identified specific error in the sentencing judge’s reasoning. Manifest inadequacy [or excess] is a conclusion. Inadequacy [or excess] is, or is not, plainly apparent. A sentence is, or is not, unreasonable or plainly unjust.[59] Perhaps more often than not, a conclusion of manifest inadequacy [or excess] does not admit of elaboration save to state
the respect in which the sentence is inadequate [or excessive], such inadequacy [or excess] resulting because the wrong kind of sentence was imposed, or because the sentence imposed is manifestly too short [or too long]. The members of the appellate court will weigh for themselves all relevant features of the respondent and the offending — including those that aggravate and those that mitigate — and intuitively synthesise each factor bearing on the exercise of the sentencing discretion. In so doing the court must balance the often incommensurable factors bearing on the exercise of the sentencing discretion, those factors frequently pulling in different directions.[60] Ultimately, appellate intervention on the ground of manifest inadequacy [or excess] is not warranted unless, having regard to all of the relevant sentencing factors — including the degree to which the impugned sentence differs from sentences that have been imposed in cases which are truly comparable — the appellate court is ‘driven to conclude that there must have been some misapplication of principle’.[61]
[59]Dinsdale v The Queen (2000) 202 CLR 321, 325–6 [6] (Gleeson CJ and Hayne J).
[60]See Elias v The Queen (2013) 248 CLR 483, 494–5 [27] (French CJ, Hayne, Kiefel, Bell and Keane JJ); Dalgliesh, 39 [4] (Kiefel CJ, Bell and Keane JJ); 53–4 [79] (Gageler and Gordon JJ).
[61]See R v Pham (2015) 256 CLR 550, 559 [28] (French CJ, Keane and Nettle JJ); [DPP v Dalgliesh (a Pseudonym) (2017) 349 ALR 37], 50 [59] (Kiefel CJ, Bell and Keane JJ). See also DPP v Zhuang (2015) 250 A Crim R 282, 295–300 [39]–[49]; DPP v McInnes [2017] VSCA 374, [75].
As I have said, in my opinion the total effective sentence and non-parole period are manifestly excessive. I would grant leave to appeal; allow the appeal; and fashion orders which would result in a total effective sentence of 17 years’ imprisonment (upon which I would fix a non-parole period of 13 years). Given that mine is a minority view, however, it is unnecessary that I spell out the orders for concurrency of cumulation that I would make to achieve that result.
BEACH JA
WEINBERG JA:
On 6 June 2017, the applicant was found guilty by a jury in the County Court of nine charges of committing an indecent act with a child under the age of 16, five charges of incest and one charge of common law assault (Indictment C1610841). Following his conviction for these offences, on 13 June 2017 the applicant pleaded guilty to charges on three further indictments: one charge of committing an indecent act with a child under 16 (Indictment G10499038.1); one charge of attempting to
pervert the course of justice (Indictment G10499038.2); and one charge of possessing child pornography and one charge of transmitting child pornography (Indictment G10499038A).
Following a plea hearing, on 11 August 2017, the applicant was sentenced as follows:
Charge Offence Maximum Sentence Cumulation Indictment C1610841 1 Indecent act with a child under 16
[Crimes Act 1958 s 47(1)]10 years’ imprisonment 1 year 6 months - 2 Indecent act with a child under 16 10 years’ imprisonment 1 year 6 months - 3 Incest
[Crimes Act 1958 s 44(2)]25 years’ imprisonment 5 years 2 years 5 Indecent act with a child under 16 10 years’ imprisonment 1 year 6 months - 6 Incest 25 years’ imprisonment 5 years 2 years 7 Incest 25 years’ imprisonment 5 years 2 years 8 Incest (course of conduct) 25 years’ imprisonment 6 years Base 9 Indecent act with a child under 16 (course of conduct) 10 years’ imprisonment 3 years 1 year 10 Indecent act with a child under 16 (course of conduct) 10 years’ imprisonment 3 years 1 year 11 Indecent act with a child under 16 (course of conduct) 10 years’ imprisonment 3 years 1 year 13 Indecent act with a child under 16 10 years’ imprisonment 1 year 6 months - 14 Indecent act with a child under 16 10 years’ imprisonment 1 year 6 months - 15 Indecent act with a child under 16 10 years’ imprisonment 1 year 6 months 9 months 16 Assault
[Common Law]5 years’ imprisonment 3 months - 17 Incest 25 years’ imprisonment 5 years 2 years Indictment G10499038.1
1 Indecent act with a child under 16 10 years’ imprisonment 2 years 1 year Indictment G10499038.2 1 Attempt to pervert the course of justice
[Common Law]25 years’ imprisonment 6 months - Indictment G10499038A 1 Possess child pornography
[Crimes Act 1958 s 70(1)]5 years’ imprisonment 1 year 3 months 2 Use carriage service to transmit child pornography [Criminal Code (Cth) s 474.19(1)] 15 years’ imprisonment 3 years 2 years Total Effective Sentence: 21 years’ imprisonment Non-Parole Period: 15 years Pre-sentence Detention Declared: 366 days
Pursuant to s 6F of the Sentencing Act 1991, the applicant was sentenced as a serious sexual offender in respect of all of the charges on Indictment C1610841, except for the charge of assault.
The applicant now seeks leave to appeal against conviction and sentence. The applicant’s application for leave to appeal against conviction is confined to charges 8, 9 and 10 on Indictment C1610841. While the applicant’s original ground of appeal was confined to charges 9 and 10, at the commencement of the hearing he sought leave to amend his ground so as to include charge 8. As reformulated, the applicant’s single proposed ground of appeal is:
The guilty verdicts on counts 8, 9 and 10 on the Indictment [C1610841] are unsafe and unsatisfactory.
PARTICULARS
Notwithstanding their status as ‘course of conduct’ charges, the evidence led in support of the counts are so vague and nebulous as to deprive the applicant of trial fairness.[62]
[62]In his ground as originally formulated, the applicant provided a second particular concerning unanimity. After brief argument, however, the applicant abandoned this particular.
In relation to his application for leave to appeal against sentence, the applicant’s proposed grounds of appeal are:
1. The learned sentencing judge erred in:
(a) misapplying the principle of totality; and
(b)making orders for cumulation which were manifestly excessive.
2. The sentence and non-parole period are manifestly excessive.
PARTICULARS
(a)the total effective sentence and non-parole period are excessive;
(b) the sentence for charge 6 is excessive;
(c)the orders for cumulation in respect of charges 3, 6 and 7 and charge 2 on Indictment G10499038A, are excessive.
3.The learned sentencing judge erred in his assessment of the seriousness of the total offending.
Background
Indictment C1610841
The applicant met the complainants’ mother, Molly,[63] in mid-1996. Molly was a single mother of five children: Codie, born in 1988; Brendan, born in 1990; Becca, born in 1993; Claire, born in 1994; and Leroy, born in 1996. About a month after meeting, she and her children moved in with the applicant. They had a child together in March 1999, and married later that month.
[63]As with the name of the applicant, we have used pseudonyms in these reasons in place of the names of the applicant’s wife and the complainants in order that the victims of sexual offending not be identified.
Codie and Brendan each had a learning aid at primary school, as they each had learning difficulties. From the age of four, Brendan had a cognitive impairment.
On a morning not long after Codie turned nine, he and Brendan were in the bedroom that they shared. The applicant came into the bedroom wearing only a towel, which he then dropped and climbed into the bottom bunk bed with Codie. The applicant told him to call Brendan down from the top bunk, which he did. The applicant then touched the genitals of both Codie (charge 1 — indecent act with a child under 16) and Brendan. The applicant told Brendan to play with his penis and said that if he did, he would give them lollies and they could have anything they wanted for breakfast, so he did (charge 2 — indecent act with a child under 16). The applicant then introduced his penis into the mouth of Codie (charge 3 — incest).
Brendan was the complainant in respect of charges 8, 9 and 10. The prosecution case in relation to those charges was based on his evidence.
Brendan gave evidence that when he was six or seven years old, the applicant began to come into the bedroom in the mornings. The applicant would lay between Brendan and Codie and get them to touch his genitals. This occurred a few times a week (charge 10 — indecent act with a child under 16 — course of conduct). The applicant introduced his penis into the mouth of Brendan every time he came in (charge 8 — incest — course of conduct). The applicant would also touch Brendan’s genitals (charge 9 — indecent act with a child under 16 — course of conduct). This happened until Codie left home in August 1997.
Brendan also gave evidence that when he was six or seven, he was in the spa in the en suite of the applicant’s bedroom with the applicant and Codie. While in the spa, Brendan touched the applicant on his genitals (part of charge 10 — indecent act with a child under 16 — course of conduct). The applicant then introduced his penis into Brendan’s mouth (part of charge 8 — incest — course of conduct). The applicant told Brendan not to tell his mother or anyone else, and referred to it as some kind of game.
On one occasion in the evening, the applicant asked Codie and Brendan if they wanted to get into the spa. The two boys again took their clothes off and got in the spa. In the spa, the applicant asked Codie to touch him on the genitals, which he did (charge 5 — indecent act with a child under 16). The applicant sat on the edge of the spa with his shorts down and introduced his penis into the mouth of Codie (charge 7 — incest). On a subsequent occasion in the spa, the applicant inserted his finger into Codie’s anus (charge 6 — incest).
Between July 1997 and January 1998, both Codie and Brendan made disclosures to educators, workers from the Department of Human Services (‘DHS’), their biological father, and police, alleging that they had been sexually abused by the applicant. The applicant was interviewed by police in August 1997 and denied the allegations. The applicant did not return to the family home, however he and Molly remained in a relationship. Charges were laid against the applicant, but they were discontinued in January 1998.
In August 1997, Codie went to live with his father. In December 1997, DHS made a protection application in relation to all five children. A Custody to Secretary Order (‘the Order’) was made which restricted contact between the applicant and the children. Despite the Order, the applicant still came to the house regularly, attending nearly every day and including staying overnight. The Order lapsed in September 2001.
In 2003, when Brendan was about 13 years old, the applicant began taking him on his mail run. While he was driving, the applicant would reach into the box on Brendan’s knee to get mail, but would also reach under the box to touch Brendan’s genitals on the outside of his clothing. Brendan went on these mail runs on a number of occasions (charge 11 — indecent act with a child under 16 — course of conduct).
On one occasion when Brendan was 13 or 14 years old, he and the applicant were staying at the applicant’s holiday house. The applicant got into Brendan’s bed naked and told him to take his clothes off. The applicant then began masturbating himself (charge 13 — indecent act with a child under 16). He told Brendan to do the same, and he did (charge 14 — indecent act with a child under 16). The applicant then reached over and held Brendan’s penis. He told Brendan that he would get him his first car if he went along with it. The applicant then masturbated Brendan’s penis (charge 15 — indecent act with a child under 16). The applicant ejaculated and then went to his own room.
It was around this time that Brendan began telling a neighbour about the applicant’s sexual abuse.
On one occasion when Brendan was about 15 years old, the applicant wanted him to come on the mail run. When Brendan refused to go, the applicant pushed Brendan’s legs up backwards towards his head, bending his back (charge 16 — assault).
On one occasion when Leroy was four or five years old, he was at home alone with the applicant. The applicant took Leroy to the back bedroom where they both got under the blankets on the bed. The applicant introduced his penis into Leroy’s mouth for a few minutes (charge 17 — incest). He told Leroy not to say anything to his mother.
Codie, Brendan and Leroy reported their allegations to police in December 2015.
Indictment G10499038.1
Claire recalled that when she was three or four years old, she was at home alone with the applicant. The applicant was on his bed wearing nothing but a towel around his bottom half. He took his towel off and asked Claire to play with him. He told her it was a game that no one else knew about. The applicant took Claire’s hand and placed it on his penis. The applicant laid back with his hand behind his head while he had Claire masturbate him until he ejaculated (charge 1 — indecent act with a child under 16).
In about mid-2009, Claire told a neighbour with whom she had formed a close relationship that the applicant touched her in places that he should not. Claire initially reported the offending to police through her school counsellor in May 2010, but decided not to make a formal complaint. She formally reported the offending to police in December 2015.
Arrest and Interview
On 17 February 2016, the applicant was arrested and interviewed in relation to the alleged offending. He denied each complainant’s specific allegations. He stated that between 1997 and 2003 he did not have access to the children due to the Custody to the Secretary Order, and was not around at that time other than supervised visits with DHS.
Indictment G10499038A
On 17 February 2016, search warrants were executed at the applicant’s residence. Computer equipment was seized and subsequently analysed. Child pornography was located on four laptop computers and a USB stick (charge 1 — possess child pornography).
Also found on one of the laptops were Skype conversations between the applicant and other Skype users between January 2015 and February 2016. In these conversations, the applicant discussed his sexual preferences for young boys, discussed sexual offending against children, and sent and received images of child pornography (charge 2 — use carriage service to transmit child pornography).
Indictment G10499038.2
On two occasions in June or July 2016, the applicant encountered Molly and threatened that if she did not change her statement, he would report to Centrelink that she was receiving a carer payment to which she was not entitled (charge 1 — attempt to pervert the course of justice).
CONVICTION
The applicant contends that his convictions on charges 8, 9 and 10 are unsafe and unsatisfactory. Charges 8, 9 and 10 were course of conduct charges involving Brendan. The course of conduct alleged in respect of charge 8, was the applicant’s introduction of his penis into Brendan’s mouth on more than one occasion; in respect of charge 9, it was the touching of Brendan’s genitals by the applicant on more than one occasion; and in respect of charge 10, it involved the applicant getting Brendan and Codie to touch his genitals on more than one occasion.
The evidence given in support of charges 8, 9 and 10 was given by Brendan. The applicant submitted that this evidence was ‘so vague and nebulous’ as to be incapable of founding convictions on those charges. Statements by a complainant, at a high level of generality, that an accused ‘used to touch my penis’ or that ‘he would touch my penis’ were said to be incapable of supporting a conviction. Thus it was submitted, for example, that Brendan’s evidence-in-chief that the applicant ‘used to touch [his] penis’ and that the applicant ‘would stroke [his] penis’ was insufficient to found a conviction on charge 9, and that his evidence on the other two charges suffered from the same vice.
Course of conduct charges
The course of conduct provisions are to be found in cl 4A of sch 1 of the Criminal Procedure Act 2009. Clause 4A was inserted into the Criminal Procedure Act by s 13 of the Crimes Amendment (Sexual Offences and Other Matters) Act 2014 (‘the 2014 Act’). A ‘course of conduct charge’ is defined in cl 4A(1) to mean ‘a charge for a relevant offence[64] that involves more than one incident of the offence’.
[64]The offences of incest and indecent acts with a child under 16, with which the applicant was charged, are relevant offences.
Clause 4A relevantly provides:
(2)More than one incident of the commission of the same relevant offence may be included in a single charge only if—
(a) each incident constitutes an offence under the same provision; and
(b)for a charge for a sexual offence, each incident relates to the same complainant; and
(c)the incidents take place on more than one occasion over a specified period; and
(d)the incidents taken together amount to a course of conduct having regard to their time, place or purpose of commission and any other relevant matter.
…
(8)The prosecution must prove beyond reasonable doubt that the incidents of an offence committed by the accused, taken together, amount to a course of conduct having regard to their time, place or purpose of commission and any other relevant matter.
(9)However, to prove a course of conduct offence it is not necessary to prove an incident of the offence with the same degree of specificity as to date, time, place, circumstances or occasion as would be required if the accused were charged with an offence constituted only by that incident.
(10)Without limiting subclause (9), it is not necessary to prove—
(a)any particular number of incidents of the offence or the dates, times, places, circumstances or occasions of the incidents; or
(b)that there were distinctive features differentiating any of the incidents; or
(c)the general circumstances of any particular incident.
(11)Without limiting clause 1(b), the particulars necessary to give reasonable information as to the nature of a course of conduct charge—
(a)must be determined having regard to—
(i)the fact that the charge is a course of conduct charge; and
(ii)the limitations contained in subclause (2); and
(iii)the fact that the various incidents of the offence are alleged to have occurred over a period of time; and
(b)need not include particulars of any specific incident of the offence, including its date, time, place, circumstances or occasion; and
(c)do not need to distinguish any specific incident of the offence from any other.
While the offending alleged against the applicant in charges 8, 9 and 10 occurred years before the passing of the 2014 Act, s 445 of the Criminal Procedure Act (inserted by s 16 of the 2014 Act) provides that a person may be charged with a course of conduct charge ‘irrespective of when the incidents of the commission of the offence are alleged to have taken place’.
Brendan’s evidence
In his evidence-in-chief, Brendan identified and described an en suite spa adjacent to the bedroom that his mother and the applicant occupied. He was asked and answered the following questions:
What happened in the spa bathroom or the spa room?---Ah, there was times when I was to do things with [the applicant]. I was to suck him off.
Can you remember — I want you to describe one of these occasions or occasion, I’m not sure exactly what you’re saying there. But you’re talking about incidents in the spa, where you had to suck him off?---Yeah.
Are you saying one incident, or what are you talking about?---Um, there was a time in the spa.
Yes?---For what I can vaguely remember, um, I do remember being in the spa with [the applicant]. Codie was there and he wanted me to just suck him off, just do it. Yeah.
…
And how did it all start in the spa?---For what I do remember is that we were in the spa at first. Just, like having fun. Having a paddle around.
Yes?---And then [the applicant] wanted us to start touching him.
All right?---Yeah.
When you say touching him, ‘he wanted us to start touching him’, what exactly happened?---Yeah. Me. Codie.
Pardon?---What exactly happened from there?---Um, it was [the applicant] wanted me and Codie to touch his genitals.
Yes?---Play with it and also me and Codie to play with each other in the spa.
…
And you said [the applicant] wanted you to touch him?---Yeah.
Touch his genitals. Did you do that?---Yeah I did do it.
Can you describe what you did?---It was at the time when he wanted us to touch his genitals. He took his jocks off.
Yes?---Yep. Um and then he just wanted me and Codie to start playing with his penis.
Did you do that?---Yes.
Did Codie do that?---Yes.
How long did that go on for?---Um, it went on for a fair while.
…
Yes. What [are you] actually doing with your hand to his penis?---Oh, so we actually had our hands on his penis, just sort of playing around with it and then there was um, yeah there was times that he told us to put it — put his penis in our mouths.
And did you do that?---Yep.
Did both of you do that?---Yep.
And how many times in the spa did that happen, the sucking of his penis, for you?---Um, I don’t remember how many times.
…
Did it [the sucking of the applicant’s penis] happen more than once in the spa?---Yes. It happened more than once.
Brendan was then asked whether there were other locations in the house in which ‘this kind of conduct took place’? He said it also happened in the bedroom that he shared with Codie. He was asked and answered the following questions:
And can you describe what would happened in your and Codie’s bedroom?---Yes, [the applicant] would come in in the mornings. He’d come into our bedroom, get under our doona and then I was made to go under the doona.
…
What would happen from there?---He’d come in and then he’d want us to start playing with his genitals in the bedroom and also to suck him off under the doona.
And you say ‘want us to’, would you do that?---Yeah, I felt like we had no other way out.
And you described what happened in the spa when you played with his genitals or did what he asked you to do, are you describing a similar thing in the bed?---Yep. Yep. Very similar.
And would that — would you — how often was this sort of thing happening?---It happened fairly often. I — I don’t remember how many times it happened. Um it all stopped when we told our teachers at primary school.
All right. Up until you told your teachers at primary school, this conduct you’re describing in the bedroom---?---Yep. ---Was that once, more than once, how often?---Ah I’m — I’m fairly sure it was more than once in the bedroom.
…
You said he would also, after having made you play with his genitals, he also wanted you to suck his penis. Did you do that?---Yes.
What about Codie?---Ah yes.
More relevantly so far as charge 9 is concerned, Brendan’s evidence went on:
All right. Well you’ve described that you would have to play with his genitals, you would have to suck his penis, what about parts of your body? Did anything happen to parts of your body?---Yeah. He used to touch my penis.
What would he do?---He would stroke my penis.
So how often would he come into your room in this way in the morning?---I don’t remember how often it was.
…
You mentioned that you told your teachers?---Yes.
How long had it been going on before you told your teachers?---Ah it would have been a good, it would have been a good year it was going on for.
At trial, there was an issue about whether any of the conduct alleged by Brendan, against the applicant, occurred more than once. The defence argued that the jury could not be satisfied on Brendan’s evidence that any particular alleged conduct occurred more than once, and that the applicant was entitled to be acquitted of the course of conduct charges unless the prosecution proved more than one incident in relation to each course of conduct charge.
In this Court, the applicant submitted that Brendan’s evidence in chief did not establish that any particular incident occurred more than once. Whatever doubt the jury might have been prepared to entertain, following Brendan’s evidence-in-chief, about whether any particular type of incident occurred more than once was, however, arguably diminished by the evidence Brendan gave in cross-examination. In cross-examination, Brendan was asked and answered the following questions:
You also said yesterday, ‘He'd want us’, that is you and Codie, ‘to play with his genitals’, that is [the applicant’s] genitals, ‘and put his penis in [your] and Codie’s mouth under the doona’?---Yes.
You said yesterday that that happened fairly often; is that right?---Yes, for what I could remember.
You said that it happened up until you told your teachers at primary school?---Yes.
You said that yesterday; is that right?---Yes.
You were asked by my learned friend how long it had been going on for, before you told your teachers. Do you remember being asked that yesterday?---Yes.
You said, ‘It would have been a good year it was going on for’; is that right?---Yes.
Over that period of time, a good year, do you say that there were numerous times that [the applicant] came into your bed naked?---Yeah, for the parts I can remember, yes.
Over that period, do you say that every time he did that, you would have to suck his penis?---Yeah.
Do you also say that every time he did that, Codie would have to do the same thing? That is suck his penis?---Yes.
There were numerous times you saw Codie sucking his penis. Is that your evidence?---Yes.
Do you say that over that period in the bedroom, there were numerous times he, [the applicant], touched your genitals in the bed?---Yes.
Over that period, do you also say to this jury that [the applicant] touched Codie’s genitals numerous times in the bed?---Yes.
In relation to the spa, however, Brendan’s evidence was of a different quality. He was asked and answered as follows:
You had more than one spa with [the applicant] in the year before you said anything to your teachers, isn’t that right?---Well, I don’t remember.
But during that period, during the 12 months before you spoke to your teachers, there were also numerous times that you were in the spa with [the applicant]; correct?---I don’t remember.
Over that period, were there numerous times that you were in the spa when [the applicant] would touch your penis?---Pardon? Say that again.
Sure. Over that period, that is the 12 month period before you spoke to the teachers at school, over that period, were there numerous times in the spa that [the applicant] would touch your penis?---I don’t remember.
Well, over that period, were there numerous times that [the applicant] would make you suck on his penis in the spa?---I don’t remember.
Over that period, were there numerous times that [the applicant] would make Codie do that, that is suck his penis in the spa?---I don’t remember.
Over that period, was there numerous times that [the applicant] got you to touch his genitals in the spa?---I don’t remember.
Over that period, were there numerous times that [the applicant] touched Codie’s penis in the spa?---I don’t remember.
Are you saying that you only remember that there was one, singular, solitary occasion where anything sexual happened in the spa with [the applicant]?---Well, it’s so hard to remember. I don’t — only remember once in the spa.
So is your evidence to this jury that, as far as you can recall, the only times anything sexual happened in the spa was once?---Well, that’s all I remember.
Analysis
The applicant’s contention that the guilty verdicts on charges 8, 9 and 10 were unsafe and unsatisfactory rested on two propositions: first, notwithstanding the provisions in cl 4A of sch 1 of the Criminal Procedure Act, evidence led in support of a course of conduct charge must be ‘capable of distillation into incidents or occasions’ (even if these incidents or occasions do not need to be proved with the same degree of specificity as to date, time, place, circumstance or occasion as would be required if the accused were charged with an offence constituted only by one incident); and secondly, Brendan’s evidence did not meet this level of particularity.
The short answer to the applicant’s contentions is that cl 4A(10) states in terms that, with respect to a course of conduct charge:
[I]t is not necessary to prove –
(a)any particular number of incidents of the offence or the dates, times, places, circumstances or occasions of the incidents; or
(b)that there were distinctive features differentiating any of the incidents; or
(c)the general circumstances of any particular incident.
As was said by this Court in McCray v The Queen,[65] the purpose of introducing course of conduct charges was to permit the charging of more than one incident of an offence in circumstances where it might be difficult for a complainant to distinguish one act of abuse from another, given the repeated nature of the offending.[66] Plainly, the course of conduct provisions were designed to relax the degree of specificity required in respect of charges laid for single incident offences. Prior to the enactment of the course of conduct provisions, it was commonly the case that offences of the present kind were charged by reference to the occasion (first or otherwise) on which they were committed. The position was described by Redlich JA (with whom Neave JA and Lasry AJA agreed) in PPP v The Queen,[67] as follows:
Commonly the alleged circumstances of the offence may be set against a background of repeated conduct with the same victim in the same circumstances over a protracted period of time. Experience has shown that commonly in such cases no distinguishing feature (additional to the occasion) of the offence charged can be provided. If it is not disputed on trial that the accused and the complainant were, throughout the period specified in the count, in each other’s company at the place where it is alleged that the offences occurred, it may be no more than a theoretical possibility that more specific particularity of the occasion charged would advance the ability of the accused to answer the charge. In the absence of demonstrated prejudice, to require some further distinguishing feature, would reduce the law to absurdity and would bring the administration of justice into disrepute.[68]
[65][2017] VSCA 340 (‘McCray’).
[66]Ibid [29].
[67](2010) 27 VR 68 (‘PPP’).
[68]Ibid 89 [73].
The applicant’s submission that Brendan’s evidence lacked sufficient particularity or (in the terms set out in the particulars to his proposed ground of appeal) was ‘so vague and nebulous as to deprive the applicant of trial fairness’ must be rejected. The evidence given by Brendan was precisely the type of evidence given in the circumstance described in PPP and to which the course of conduct provisions were designed to apply. The substance of Brendan’s evidence was that on numerous occasions between November 1996 and August 1997, the applicant committed the offences constituted by charges 8, 9 and 10 by putting his penis in Brendan’s mouth, by touching Brendan’s genitals and by requiring Brendan to touch the applicant’s genitals. As might reasonably be expected when a witness gives evidence years later about repetitive identical offending committed in very similar, if not identical circumstances, the prospect that particular incidents could be distilled is, in many cases, unlikely to be realistic.
In argument before us, it was submitted that in so far as Brendan gave evidence about what the applicant ‘would do’ or what the applicant ‘used to do’, that evidence was insufficient to support a conviction; alternatively, the eliciting of evidence in that form compromised the fairness of the applicant’s trial to a point where his convictions cannot be permitted to stand.
While one may debate the form of some of the questions asked of Brendan by the prosecutor (for example, ‘What would he do?’ or ‘So how often would he …?’; instead of ‘What did he do?’ or ‘So how often did he …?’), it is notable that the applicant’s trial counsel[69] took no relevant objection to the form of these questions. Thus, counsel immersed in the atmosphere of the trial did not perceive any relevant unfairness in the form of the questions now sought to be impugned. No doubt this was because those questions could have been appropriately reformulated, and would very likely have produced answers to the same effect, namely, that on many occasions, between November 1996 and August 1997, the applicant abused Brendan and Codie by requiring them to touch his genitals, touching their genitals and putting his penis in Brendan’s mouth.
[69]Not counsel who appeared in this Court.
The applicant’s proposed ground of appeal is not reasonably arguable. The jury was well entitled to accept Brendan’s evidence. That evidence disclosed that the applicant, on many occasions, and certainly more than once in respect of each charge, committed the three types of offending conduct which were the bases of charges 8, 9 and 10. In our view, it was well open to the jury to convict the applicant on charges 8, 9 and 10.[70]
[70]See M v The Queen (1994) 181 CLR 487, 494–5; R v Hillier (2007) 228 CLR 618, 629–30 [20]; Libke v The Queen (2007) 230 CLR 559, 596–7 [113]; R v Baden-Clay (2016) 258 CLR 308, 329–30 [65]–[66].
As the applicant’s proposed ground of appeal is not reasonably arguable, leave to appeal against conviction must be refused.
SENTENCE
We have already described the detail of the applicant’s offending. His offending may be summarised as follows:
·Between November 1996 and August 1997, in relation to Codie, three charges of committing an indecent act with a child under 16 and three charges of incest (charges 1, 2, 3, 5, 6 and 7 on Indictment C1610841).
·Between November 1996 and August 1997, in relation to Brendan, two charges of committing an indecent act with a child under 16 (course of conduct) and one charge of incest (course of conduct) (charges 8, 9 and 10 on Indictment C1610841).
·In approximately 1998, in relation to Claire, one charge of committing an indecent act with a child under 16 (charge 1 on Indictment G10499038.1).
·In approximately 2000/2001, in relation to Leroy, one charge of incest (charge 17 on Indictment C1610841).
·Between January 2003 and November 2006, in relation to Brendan, four charges of performing an indecent act with a child under 16 (one of which was a course of conduct charge) and one charge of assault (charges 11, 13, 14, 15 and 16 on Indictment C1610841).
·In 2015/2016, possessing child pornography and using a carriage service to transmit child pornography (charges 1 and 2 on Indictment G10499038A).
·Between March and August 2016, attempting to pervert the course of justice (charge 1 on Indictment G10499038.2).
Reasons for sentence
At the commencement of his reasons for sentence, the judge observed that the applicant was, at the time of sentencing, 48 or 49 years of age and had no prior convictions or matters pending.[71] The judge then said that he would sentence ‘on the pornography indictment [Indictment G10499038A] first’.[72] The judge noted that, accordingly, the applicant would be sentenced as a serious sexual offender[73] on all matters on the other indictments except for the offences of assault and attempting to pervert the course of justice. No issue was taken with the judge’s approach at the time of sentencing, or in this Court.[74]
[71]DPP v [Harlow] [2017] VCC 1107 [2] (‘Reasons’).
[72]Ibid [6].
[73]The applicant became a serious sexual offender within the meaning of s 6B(2) of the Sentencing Act 1991 upon his conviction for two or more ‘sexual offences’ as defined in s 6B(1). A ‘sexual offence’ is an offence to which cl 1 of sch 1 applies. The offences referred in in Indictment G10499038A are offences to which cl 1 of sc 1 applies because the offence of possessing child pornography is referred to in cl 1(dan) of sch 1; and the offence of using a carriage service for child pornography material is referred to in cl 1(df)(ii) of sch 1.
[74]Cf SJ v The Queen [2012] VSCA 237 [67], where Osborn JA (with whom Nettle and Redlich JJA agreed) expressed the view that the proper approach, in giving effect to the serious sexual offender provisions in the Sentencing Act, is by dealing with offences in the order of conviction.
The judge then referred to the requirement in s 6E of the Sentencing Act that every term of imprisonment imposed by a court on a serious offender for a relevant offence must, unless otherwise directed by the Court, be served cumulatively on any other sentence of imprisonment. The judge said he would order partial cumulation, and also that there would be some matters where there was total concurrency, ‘because of the sheer volume of charges and for reasons of totality’.[75]
[75]Reasons [6].
The judge summarised the applicant’s offending against Codie, Brendan, Leroy and Claire.[76] The judge accepted that the offending against Codie and Brendan ‘ was repetitive’[77] and occurred on ‘many occasions’.[78] The judge described the course of conduct charges involving Brendan as taking into account ‘the multitude of occasions upon which [the applicant] did … [the] various things to [Brendan].[79] The judge recounted the evidence of both Brendan and Codie that the applicant ‘threatened them and [told] them that [he] would hurt their mother if they told anybody’.[80]
[76]Ibid [11]–[17], [23]–[27], [34].
[77]Ibid [11].
[78]Ibid [17].
[79]Ibid [12].
[80]Ibid [19].
The judge referred to the victim impact statements and other material saying that the applicant ‘essentially conducted a reign of terror’ over Codie and Brendan ‘and debauched them’ as well as Leroy and Claire for his own personal satisfaction.[81] The judge said:
The offending took place essentially over a decade. I can safely say that in my 30 odd years’ experience as a criminal lawyer I do not believe I have come across such a serious example of this sort of offending.[82]
[81]Ibid [28].
[82]Ibid [7].
The judge noted that, in respect of Codie, Brendan and Leroy, the applicant had run a trial in which it was put to the complainants that they were liars and that oral sex had taken place between Codie and Brendan, not involving the applicant. The judge concluded that the applicant had ‘no remorse whatsoever’.[83]
[83]Ibid [32].
The judge summarised the evidence in relation to the attempt to pervert the course of justice. The judge, however, noted that the events of that charge ‘pale[d] into insignificance’ with the other charges.[84] The judge then summarised the evidence in relation to the pornography charges (charges 1 and 2 on Indictment G10499038A).[85] In summarising that evidence, the judge referred to Skype conversations to which the applicant was a party between January 2015 and February 2016. The judge noted that the applicant talked in the present tense of offending, saying that he had interfered with his boys.[86] The judge also observed that some of these conversations amounted ‘to a rather joyous discussion between [the applicant] and others about the rape of children’.[87]
[84]Ibid [36].
[85]Ibid [37]–[40].
[86]Ibid [39].
[87]Ibid [40].
While the judge seriously doubted whether there was any remorse in relation to the charges to which the applicant had pleaded guilty, the judge noted that those pleas had a utilitarian benefit and were therefore to be taken into account.[88]
[88]Ibid [41].
The judge described the applicant’s personal circumstances, noting that he had a long work record, and again noting that he had no prior convictions.[89] The judge concluded that there could be no doubt that the applicant knew what he was doing was wrong, but that he persisted with it anyway.[90] The judge also said that the applicant’s prospects for rehabilitation would be ‘in the distant future’.[91]
[89]Ibid [43]–[44].
[90]Ibid [44].
[91]Ibid [49].
The judge returned again to the issue of totality, saying:
The length of the sentence will be very significant indeed as I discussed with your counsel. Really the only matter that you have going for [you], other than the guilty pleas, were concepts of totality and the desirability of not imposing a crushing sentence. Crushing is very much, I think, in the eye of the beholder. It should not stop a judge from imposing what he considers or she considers to be the appropriate sentence for offending as serious as this.[92]
[92]Ibid [46].
Submissions
Under proposed ground 1, the applicant contended that the judge misapplied the principle of totality and made orders for cumulation which were manifestly excessive. In support of these contentions, the applicant relied upon Sentencing Advisory Council publications which were said to show that the total effective sentence was outside the permissible range. The applicant noted:
(a)The Sentencing Advisory Council ‘Snapshot’ closest in time to the offending indicates that from 2002-03 to 2006-07, individual sentences of imprisonment for incest ranged from five months to eight years, while the median term was four years. Total effective sentences range from one year to 15 years, while the median total effective term was six years and six months.
(b)The most current Sentencing Advisory Council ‘Snapshot’ indicates that from 2010–11 to 2014–15, individual sentences of imprisonment for incest ranged from two years to seven years and six months, while the median term was four years. Total effective sentences ranged from three years to 18 years, while the median total effective term was seven years.
In relation to the gravity of the applicant’s offending, the applicant submitted that the following matters were of note:
·There were discontinuities in the applicant’s incest offending. The offending in 1997 was confined to weeks or months. Thereafter, there were ‘one-offs’ offences against two other children. While there was a resumption of offending against Brendan, that offending was limited to indecent contact without penetration.
·The incest offending did not involve sex toys, penetration with objects, the making of videos or the taking of photographs or other forms of sexual depravity or degradation beyond the acts that constituted the offences.
·The incest offending did not involve physical violence or threats of violence. Immediately, we interpolate that this submission overlooks the evidence of Brendan and Codie that the applicant threatened them and threatened to hurt their mother if they told anybody.
·The incest offending did not involve the risk of pregnancy or infection. Again, we interpolate that this submission overlooks the risk of infection caused by the introduction of the applicant’s penis into the mouths of Brendan, Codie and Leroy.
Under proposed ground 2, the applicant submitted that the total effective sentence and non-parole period were both excessive; the sentence on charge 6 was excessive and the orders for cumulation in respect of charges 3, 6 and 7 and charge 2 on Indictment G10499038A were excessive. In support of these submissions, the applicant relied upon a number of authorities concerning sentences for incest where the total effective sentences were terms of imprisonment shorter than the term of imprisonment imposed on the applicant.[93] Reference was also made to RSJ v The Queen,[94] where the offender was sentenced to a term of imprisonment of 22 years and 5 months, with a non-parole period of 18 years, for multiple counts of incest and indecent assault. The applicant described RSJ as ‘an outlier’, noting that the offending in that case spanned 28 years and involved multiple pregnancies.
[93]See, eg, Harmon v The Queen [2017] VSCA 169; Davies v The Queen [2014] VSCA 69; Gordon v The Queen [2013] VSCA 343; DPP v Jones [2013] VSCA 330; BSJ v The Queen [2012] VSCA 93; WC v The Queen [2012] VSCA 30; FD v The Queen [2011] VSCA 8; DPP v Hopson [2016] VSCA 303; Reid v The Queen (2014) 42 VR 295; PDI v The Queen [2011] VSCA 446.
[94][2012] VSCA 148 (‘RSJ’).
In oral argument, counsel for the applicant focused his submissions about manifest excess on:
·the sentence imposed on charge 6;
·the level of cumulation ordered on charges 1, 2, 3, 5, 6, 7 in relation to Codie, upon the effective sentence imposed on charges 8, 9 and 10 in relation toBrendan (it was submitted that 6 years of cumulation in relation to charges 1–7 was excessive on the 8 years imposed in respect of charges 8–10). It was also submitted that the total sentence of 14 years’ imprisonment on charges 1–14 was manifestly excessive; and
·the cumulation of 2 years and 3 months on the pornography indictment (Indictment G10499038A).
Under proposed ground 3, the applicant submitted that the judge erred in his assessment of the seriousness of the total offending. The applicant contended that the frequency and duration of the offending, and the total gravity of the offending, was overstated by the judge. In making these submissions, the applicant relied upon submissions he made in respect of these issues under cover of proposed grounds 1 and 2.
The respondent submitted that the applicant’s proposed grounds were not reasonably arguable. While the respondent accepted that the total effective sentence was ‘very long’ the respondent submitted that having regard to all of the relevant matters that the judge was obliged to take into account, it could not be said that the sentence offended totality or was otherwise manifestly excessive. As the respondent put it, the applicant’s offending was ‘intrinsically very bad’. It was committed in gross breach of trust, and its effect upon the complainants was profound. Moreover, the offending was sustained and brazen, even after some of it had been revealed to authorities and steps had been taken to protect the complainants from the applicant. Additionally, the applicant pleaded not guilty in respect of the bulk of his offending, and there was a presumption of cumulation in respect of the vast majority of his sentences.
Analysis
There is a substantial overlap in the arguments advanced by the applicant under proposed grounds 1 and 2. The arguments in support of both of these grounds make complaints about manifest excess and totality. Proposed ground 3, however, deals with the anterior question of the assessment of the seriousness of the applicant’s offending. We begin our analysis by dealing with that issue.
There is no substance in the applicant’s complaints about the judge’s assessment of the seriousness of his offending. The crimes committed by the applicant, and in particular those committed against Codie, Brendan, Leroy and Claire, were very serious examples of very serious offences. The applicant’s offences of incest and committing an indecent act with a child under the age of 16 were seriously aggravated by the following matters:
(1) The child victims were very young: Codie was approximately 9 years of age at the time of the offending against him; Brendan was approximately 7 years of age; Leroy was approximately 4 years of age; and Claire was 3 or 4 years of age.
(2) The offending against Codie and Brendan was committed in circumstances where the applicant threatened them and told them that he would hurt their mother if they told anybody.
(3) The offending was a gross breach of trust against stepchildren who had every right to feel safe and protected in the presence of their stepfather.
(4) The offending continued after complaint was made by Codie and Brendan, the applicant was interviewed by police, charges were laid and a Custody to Secretary Order had been made. Indeed, it was after these matters that the applicant put his penis in the mouth of 4 year old Leroy.
There was no error in the judge’s conclusion that the applicant’s offending, at least in relation to Brendan, was repetitive and occurred on a multitude of occasions. Similarly, there was no error in the judge describing the applicant’s offending as having occurred ‘essentially over a decade’. Moreover, the judge (who the applicant did not dispute is very experienced in the criminal law) was entitled to say that in his ’30 odd years’ experience as a criminal lawyer [he did] not believe [he had] come across such a serious example of this sort of offending’.[95]
[95]Reasons [7].
The fact that the applicant’s offending ‘did not involve sex toys, penetration with objects, the making of videos or the taking of photographs or other forms of sexual depravity or degradation’ is not of great moment. The mere ability to point to the absence of different aggravating circumstances that might have been present in another case says little about the seriousness of the specific offences committed by the applicant — particularly when that offending was itself committed in the different circumstances of serious aggravation to which we have already referred.
To the extent that the applicant submitted that any of the sentences imposed upon him for any of the charges on any of the indictments was manifestly excessive, that submission must be rejected. The sentences on each of the individual charges were all, at most, moderate.
In relation to the various individual sentences imposed by the judge, the applicant made specific complaint about the sentence imposed upon charge 6 (incest, committed by the applicant by inserting his finger into Codie’s anus). For that offence, the applicant was sentenced to five years’ imprisonment, two years of which was ordered to be served cumulatively. The complaint that that sentence was manifestly excessive is simply devoid of merit. It was, if anything, lenient.
In oral argument, the applicant focused his argument about manifest excess on the amount of cumulation ordered in relation to the offending against Codie (charges 1, 2, 3, 5, 6 and 7). In essence, the applicant submitted that to cumulate 6 years for this offending upon the 8 years ordered in respect of the course of conduct charges committed during the same time frame involving Brendan (charges 8, 9 and 10) demonstrated that the sentencing discretion had gone seriously awry. We reject that submission. If there is any lack of relativity between the sentences imposed on charges 8, 9 and 10 on the one hand, and the sentences imposed on charges 1–7[96] on the other hand, in our view, it is as likely caused by an excess of leniency in the sentences imposed on charges 8, 9 and 10.
[96]Being charges 1, 2, 3, 5, 6 and 7.
As we have already observed, charges 8, 9 and 10 were course of conduct charges. Section 5(2F) of the Sentencing Act provides in respect of such charges:
(2F)In sentencing an offender for the incidents of the commission of an offence included in a course of conduct charge (within the meaning of clause 4A of Schedule 1 to the Criminal Procedure Act 2009) a court—
(a)must impose a sentence that reflects the totality of the offending that constitutes the course of conduct; and
(b)must not impose a sentence that exceeds the maximum penalty prescribed for the offence if charged as a single offence.
Note If a jury finds a person guilty of a course of conduct charge, in making finding of facts relevant to sentencing the sentencing judge determines the course of conduct in which the person engaged and by reference to which the person will be sentenced.
The judge found that the applicant’s offending covered by charges 8, 9 and 10 occurred on ‘a multitude of occasions’. Having regard to the extent of that offending and the maximum penalties for the offences involved, and in particular the maximum sentence for incest (25 years), the sentences the judge imposed on those charges must be regarded as extremely lenient. Indeed, remembering that the judge was obliged to impose a sentence that reflected the totality of the applicant’s offending that constituted the course of conduct,[97] it would have been well open to the judge to impose a sentence on charge 8 that was several years longer than the one his Honour actually imposed.
[97]See s 5(2F)(a) of the Sentencing Act.
As was conceded by the respondent, the total effective sentence imposed upon the applicant is a long one when compared with other sentences that have been imposed for serious incest offending. That, however, does not demonstrate that the sentence imposed upon the applicant was manifestly excessive. In relation to the applicant’s reliance upon the various authorities to which he referred, the following points may be made:
(1) A number of the decisions relied upon by the applicant predate this Court’s decision in DPP v Dalgliesh,[98] in which it was held that the then current sentencing practices for incest were demonstrably inadequate.[99]
(2) While comparable cases are relevant to reveal the appropriate sentencing range for an offence, they are not precedents. A review of comparable cases may disclose a possible pattern or range of previous sentences. The identification of a range of previous sentences, however, does not have the effect of fixing some immutable upper or lower limit of the appropriate range in an individual case.
(3) While s 5(2)(b) of the Sentencing Act provides that current sentencing practices are relevant to the determination of a sentence in each case, current sentencing practices are only one of the factors required to be taken into account in any particular case.[100]
[98][2016] VSCA 148.
[99]DPP v Dalgliesh (2017) 91 ALJR 1063, 1070 [35].
[100]Ibid 1067 [9] (Kiefel CJ, Bell and Keane JJ), 1077–8 [82] (Gageler and Gordon JJ).
Having reviewed the authorities and sentencing decisions relied upon by the applicant, we are not persuaded that they demonstrate that any of the sentences or orders for cumulation made in this case were excessive. Indeed, to the contrary, the various sentences and orders for cumulation appear to us to be moderate.
If there is any issue about the applicant’s sentence, it relates to whether the orders for cumulation have resulted in a total effective sentence that infringes totality principles. Given the length of the applicant’s total effective sentence, it seems to us that this issue is at least arguable. That said, for the reasons already given, we are not persuaded that the sentence ultimately imposed upon the applicant infringes totality principles. As we have already said, the applicant’s offending constituted very serious examples of very serious offences and was seriously aggravated by the matters to which we have already referred. Moreover, in respect of the bulk of his offending, the applicant pleaded not guilty and thus did not have the benefit of the substantial mitigatory effect that a plea of guilty may have carried. The sentence imposed upon the applicant was very high, but that is merely a reflection of the totality of the criminality involved in his offending in all the circumstances.
CONCLUSION
The application for leave to appeal against conviction will be refused. The application for leave to appeal against sentence will be granted, but the appeal will be dismissed.
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