Henderson (a pseudonym) v The King
[2024] VSCA 78
•29 April 2024
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2022 0199 |
| THOMAS HENDERSON (A PSEUDONYM) | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGES: | PRIEST and BOYCE JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 14 March 2024 |
| DATE OF JUDGMENT: | 29 April 2024 |
| MEDIUM NEUTRAL CITATION: | [2024] VSCA 78 |
| JUDGMENT APPEALED FROM: | [2021] VCC 17 (Judge Lacava) |
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CRIMINAL LAW – Appeal – Sentence – Sexual offending against four young children – Persistent sexual abuse of a child under the age of 16 – Sexual penetration of a child or lineal descendent – Sexual penetration of a child under 16 years – Indecent act with a child under 16 – Sexual assault of a child under the age of 16 – Attempted sexual assault of a child under the age of 16 – Whether charges wrongly characterised as ‘rolled-up’ charges – Whether sentences manifestly excessive – Whether pleas of guilty on one indictment attract utilitarian benefit in accordance with Worboyes v The Queen (2021) 96 MVR 344 – Application for leave to appeal granted – Appeal allowed – Applicant re-sentenced.
Sentencing Act 1991, ss 5A, 5B, 6E, 6D(a), 11A; Criminal Procedure Act 2009, ss 280(1)(b), 281(1)(b).
Worboyes v The Queen (2021) 96 MVR 344, Rossi v The Queen [2021] VSCA 296, discussed.
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| Counsel | |||
| Applicants: | Mr G Hughan | ||
| Respondent: | Dr N Rogers SC | ||
Solicitors | |||
| Applicant: | Slink & Keating Solicitors | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
PRIEST JA
BOYCE JA:
Introduction
The applicant pleaded guilty in the County Court to seven charges of sexual offences committed upon children. The charges were contained in three separate indictments. There were four victims. The offending took place between 2014 and July 2019.
Indictment J12145960.1 (‘the Matthews indictment’) charged the applicant with a sexual offence against Zoe Matthews.[1] She was only four to five years old at the time. Zoe Matthews was a friend of the applicant’s daughter. The applicant entered his plea to this offence on 5 September 2019. Indictment K11828711.2 (‘the Wilson indictment’) contained offending committed upon a 12-year-old child, and friend of another of the applicant’s daughters, Catrina Wilson.[2] The applicant entered pleas in respect of this indictment on 14 November 2019. Indictment L10067143 (‘the Henderson indictment’) contained offending committed by the applicant upon his biological daughters, Ivy and Abby.[3] The applicant entered pleas of guilty on this indictment on 5 August 2020.
[1]A pseudonym.
[2]A pseudonym.
[3]Pseudonyms.
On 19 January 2021, the applicant was sentenced as follows:
Charge
Offence
Sentence
Cumulation
Indictment L10067143 (the Henderson indictment) 1 Persistent sexual abuse of a child under the age of 16[4] 12 years Base 2 Persistent sexual abuse of a child under the age of 16 8 years 5 years 3 Sexual penetration of a child or lineal descendant[5] 10 years 5 years Indictment J12145960.1 (the Matthews indictment) 1 Indecent act with a child under 16[6] 3 years 2 years Indictment K11828711.2 (the Wilson indictment)
1 Attempted sexual assault of a child under the age of 16[7] 1 year Nil 2 Sexual assault of a child under the age of 16[8] 4 years Nil 3 Sexual penetration of a child under 16 years[9] 6 years 4 years Related Summary Offence
1
Commit indictable offence on bail[10]
3 months
Nil
Total Effective Sentence: 28 years Non-Parole Period: 21 years Pre-sentence Detention Declared: 555 days Section 6AAA Statement: Total effective sentence 35 years’ imprisonment with 28 years non-parole Other Relevant Orders:
1. Sentenced as a serious sexual offender pursuant to s 6F(1) of the Sentencing Act 1991.
2. Reporting obligation period is life pursuant to s 34 Sex Offenders Registration Act 2004.
[4]Contrary to s 47A of the Crimes Act 1958 as amended by the Crimes (Sexual Offences) Act 2006. The maximum penalty is 25 years’ imprisonment.
[5]Contrary to s 50C(1) of the Crimes Act 1958 as amended by the Crimes Amendment (Sexual Offences) Act 2016. The maximum penalty is 25 years’ imprisonment.
[6]Contrary to s 47(1) of the Crimes Act 1958 as amended by the Crimes Amendment (Sexual Offences and Other Matters) Act 2014. The maximum penalty is 10 years’ imprisonment.
[7]Contrary to s 321M and s 49D(1) of the Crimes Act 1958 as amended by the Crimes Amendment (Sexual Offences) Act 2016. The maximum penalty is 5 years’ imprisonment.
[8]Contrary to s 49D(1) of the Crimes Act 1958 1958 as amended by the Crimes Amendment (Sexual Offences) Act 2016. The maximum penalty is 10 years’ imprisonment.
[9]Contrary to s 49B(1) of the Crimes Act 1958 as amended by the Crimes Amendment (Sexual Offences) Act 2016. The maximum penalty is 15 years’ imprisonment.
[10]Contrary to s 30B of the Bail Act 1977. The maximum penalty is 3 months’ imprisonment or 30 penalty units.
The applicant applies for leave to appeal against sentence on three grounds.
(1)The sentences imposed on the Wilson and Henderson indictment are manifestly excessive, having regard to:
(a)the applicant’s pleas of guilty generally;
(b)the applicant’s indicated and entered pleas of guilty on the Henderson indictment at the time the operation of the Courts was significantly disrupted by the COVID-19 pandemic;
(c)the seriousness of the offending;
(d)the application of the standard sentencing scheme (applicable to charge 3 on the Henderson indictment and charges 2 and 3 on the Wilson indictment);
(e)current sentencing practices;
(f)the applicant’s difficult background; and
(g)the application of the principle of totality.
(2)The sentencing Judge erred in sentencing the applicant for charge 1 on indictment K11828711.2 (attempted sexual assault of a child under 16 years) as if it were a “rolled up charge” or on the basis that it was a “rolled-up charge” consisting of both sexual assault and attempted sexual assault.
(3)The sentencing Judge erred in sentencing the applicant for charge 2 on indictment K11828711.2 (sexual assault of a child under 16 years) as if it were a “rolled-up charge” and/or without identifying the conduct which made it a “rolled-up charge”.
At the time of the hearing, the filing of a notice applying for leave to appeal was out of time by 22 months. No sufficient explanation was forthcoming concerning this delay. Nevertheless, at the hearing of the application it became evident that the delay was no fault of the applicant. Moreover, at the hearing it became evident — also — that the present sentence was unlike any comparable case that could be found. On the basis that there was a serious question to be agitated concerning whether the sentence imposed in the instant case was manifestly excessive, the Court granted the application to extend time.
For the reasons that follow, we would grant the applicant leave to appeal, allow the appeal and re-sentence the applicant.
Circumstance of the offending
In terms of chronology, the applicant’s offending commenced by him offending in January 2014 against his own daughters, first Ivy (from 17 January 2014 to 30 June 2017) and then Abby (from 31 May 2016 to 30 June 2017). As indicated above, this offending was contained in the Henderson indictment. The applicant’s offending described in the Matthews indictment (2 March 2017 to 30 June 2017) overlapped with the date-range set out in the first two charges of the Henderson indictment. This took matters up to 30 June 2017. Then, in 2019, the offending the subject of the Wilson indictment took place (8 March 2019 to 14 July 2019). The Wilson indictment offending overlapped with charge 3 on the Henderson indictment (2 to 10 March 2019).
The applicant’s offending described in the Matthews indictment was the first to be disclosed to authorities. On 9 August 2018, the applicant was charged and placed on bail in connection with the Matthews indictment offending. It was not until later that authorities came to learn of the applicant’s offending in respect of the Henderson and Wilson indictments. The applicant’s offending on the Wilson indictment and on charge 3 of the Henderson indictment occurred in breach of the bail granted to the applicant on 9 August 2018.
The sentencing judge summarised the applicant’s offending in his reasons for sentence.[11] This summary made reference to a Summary of Prosecution Opening (‘SPO’) that was tendered on the plea and that was accepted as accurate. The judge, in his Reasons, said that he would summarise the applicant’s offending ‘only in an abbreviated way’.[12] The judge emphasised that the Reasons were required to be read in conjunction with the SPO. In the summary that follows, reference is made to relevant parts of the SPO.[13]
The Henderson indictment
[11]DPP v Henderson [2021] VCC 17 (‘Reasons’).
[12]Reasons [19].
[13]And certain relevant parts of the SPO can be found annexed at the end of this judgment.
The applicant had five children with a former partner. They included Ivy, who was born on 17 January 2004, and Abby who was born on 31 May 2007. The applicant and his then partner separated when the applicant was about 30 years old. The five children continued to live with their mother and her new partner. The applicant moved from interstate to Victoria where he met a new partner. The applicant had a daughter, Donna,[14] with his new partner. On most school holidays the applicant’s children would come down to Victoria and stay with him and his partner. In January 2018, the applicant was granted full custody of his five children and they resided with him in Victoria.
[14]A pseudonym.
The applicant faced two charges of persistent sexual abuse of a child under 16; one committed upon Ivy, the other upon Abby. There was a standalone charge of sexual penetration referable to Abby. This offending occurred over a period of five years, when the applicant was between 35-40 years old.
Charge 1 on the indictment related to Ivy. She was aged relevantly between 10 and 13 years old. The offending spanned the period between 17 January 2014 and 30 June 2017. The charge comprised multiple occasions when the applicant introduced his penis into Ivy’s vagina. The evidence revealed that this was a ‘normal routine’.
The VARE undertaken by Ivy revealed the full extent of the applicant’s sexual abuse. Those details were outlined at paragraph 10(a)–(e) of the SPO.[15] Ivy described, in her interview with police, the numerous instances when the applicant would routinely sexually penetrate her with his penis during periods when she stayed with him. When addressing these details in the Reasons, the sentencing judge observed:
Ivy told police you would ejaculate wearing a condom. You told her not to tell anyone, and that what you were doing with her was normal. I will not repeat here all that is set out in paragraph 10 of the prosecution summary. It is frankly abhorrent conduct by you towards your own daughter over a long period of time. You seem to have relentlessly pursued your daughter Ivy to satisfy your own depraved sexual appetite.
Your daughter trusted you and that is why the offending persisted for so long. It only ceased at her insistence.[16]
[15]See Annexure ‘A’ to this judgment.
[16]Reasons, [58]-[59].
The offending in charge 2 related to Abby. She was aged between nine and 10 during the relevant period. This offending spanned the period between 31 May 2016 and 30 June 2017. The offending comprised the applicant penetrating Abby’s vagina with his finger; penetrating Abby’s vagina with his penis (on multiple occasions over the relevant period); introducing his penis into Abby’s mouth (on multiple occasions over the relevant period) and rubbing his penis against Abby’s anus (on five occasions). The charge was put on the basis that there was a ‘normal routine’ of penis/vagina penetration, digital penetration, acts of causing Abby to touch the applicant’s genitals, and oral sex. The offending against Abby occurred behind a locked bedroom door. The applicant did not wear a condom when he offended against Abby.
Abby participated in a VARE during which she disclosed to police the details of the offending committed upon her by the applicant. The offending was detailed at paragraph 13(a)–(r) of the SPO.[17] As with the offending against Ivy, the sentencing judge did not describe in detail what the applicant had done to Abby. The judge said: ‘It is not necessary that I here repeat in graphic detail what is there set out’.[18] Nevertheless, perusal of the SPO reveals offending such as Abby being required to swallow the applicant’s semen after he had ejaculated into her mouth.[19]
[17]See Annexure ‘B’ to this judgment.
[18]Reasons, [63].
[19]SPO, paragraph 13(j).
Charge 3 related to the applicant penetrating Abby’s vagina with his penis when Abby was aged 11 years and 10 months. This offending took place at Abby’s friend’s house and occurred around the same time as charge 1 on the Wilson indictment. The applicant often visited this friend’s house. On this occasion, Abby was camping with the friend and others in the back yard of the house. She felt sick and went inside the house to the spare room. The applicant entered the room and had penile/vaginal intercourse with her. At the time of the offending the applicant was on bail for the Matthews charge.
The Matthews indictment
This offending occurred between March and June 2017 when the applicant was aged between 37 and 38 years old. The victim, Zoe Matthews, was only four or five. She, and the applicant’s daughter Donna, attended the same pre-school and became close friends. The applicant formed a friendship with Zoe’s mother. The applicant and the mother took it in turns to have the children over for play dates.
Charge 1 related to an occasion, between 2 March and 30 November 2017, when the applicant took Zoe along with his daughter Donna to his home for a play date. While in his care, the applicant took Zoe to his bedroom with Donna. He told Zoe to touch his naked penis, which she called a ‘doodle’, and she did so at his instruction. The applicant licked Zoe’s hand and arm, then pulled down her pants and licked her vagina.
Zoe saw the same thing happen to Donna.[20]
[20]This was an uncharged act to give context and setting to the offending in the charged act.
On another play–date, the applicant again took Zoe and Donna to his bedroom. The applicant asked if he could lick Zoe’s vagina and she said ‘no’. Donna was present and said ‘do it, it’s fun’. The applicant said ‘do like [Donna’s] doing, it’s fun’. On this occasion Zoe did not let the applicant lick her genitals.[21]
[21]This activity was led as uncharged act evidence.
Soon after, Zoe disclosed to her mother what the applicant had done. Zoe was taken to the family doctor and a report was made to police.
The Wilson indictment
At the time of this offending the applicant was aged 39. The victim, Catrina Wilson, was aged 12 and lived with her parents and siblings. At the time of this offending, the applicant was on bail in respect of the offending committed upon Zoe Matthews. The applicant’s daughter Abby became friends with Catrina. The applicant developed a friendship with Catrina’s parents and regularly visited their home. This offending occurred on two occasions when Catrina’s parents allowed the applicant to sleep in their spare bedroom.
On an occasion between 8 March and 30 June 2019, when the applicant was at Catrina’s home, he told her to go to the spare room and lie on the bed. The applicant then lay next to Catrina and touched her breast over her clothing. The applicant then pulled Catrina’s hand and tried to make her touch his penis (charge 1). The applicant told Catrina that he would not let her see her best friend, his daughter, if she did not go with him to the spare room. The applicant also told Catrina to keep secret what had occurred.
On 13 July 2019, the applicant was at Catrina’s home. There were a number of other adults and children at the gathering. There was eating and drinking and during the course of the evening a number of guests and their children left. The applicant’s partner was driven home but the applicant remained. He continued drinking with Catrina’s parents. The applicant asked Catrina’s mother if she would provide a character reference for him to be produced at court for the purposes of the pending charge that concerned Zoe Matthews.
At around 1:30 am Catrina’s mother went to bed. The applicant continued drinking with Catrina’s father until around 3:00 am and it was then agreed that the applicant would sleep in the spare room.
Whilst this was happening Catrina was playing a computer game in her bedroom. Sometime after midnight the applicant entered her bedroom and told her to go to the spare room and then left her bedroom. Catrina did not go to the spare room and the applicant returned. The applicant said to Catrina: ‘…why aren’t you in my bed yet? I asked you to go in about 10 minutes ago’. Catrina made an excuse about wanting to finish her game and did not go to the spare room. The applicant returned to her bedroom and tried to pull her out of the bed and take her computer and mouse from her. The applicant then touched Catrina’s breast over her clothing (charge 2). The applicant put his hand inside Catrina’s track pants. He rubbed, and digitally penetrated, Catrina’s vagina (charge 3).
After several minutes the applicant left to have a cigarette. He spoke briefly with Catrina’s sister, who was also present in the bedroom.
The applicant again returned to Catrina’s bedroom. This time he climbed into her bed under a blanket. He tried to force Catrina’s legs apart. Catrina told him to ‘stop’ and ‘go away’, but he persisted. Catrina escaped and ran to her parent’s bedroom. Catrina made an immediate complaint to her mother. Soon after the applicant was asked to leave the house and the matter was immediately reported to the police who attended at about 4:00 am in the morning.
The plea
The applicant relied on his early pleas of guilty which it was said went to the applicant’s remorse. It was suggested that the applicant possessed an ‘evolving capacity’ for rehabilitation.
The applicant was 40 at the time of the plea. It was put that the applicant grew up in a ‘very low socioeconomic and disadvantaged rural area and his home environment was one of abuse, primarily due to [the applicant’s] father’s alcoholism’. The applicant first partnered when he was 17 years old. They had their first child when he was 21 years old and at some stage during the relationship the two were married. The applicant and his then partner had a total of five children together. They separated when the applicant was about 30 years old.
The five children continued living with their mother and her new partner interstate. At some point the applicant discovered that his children had been subjected to ‘negligence and alleged physical abuse by their mother and the mother’s new partner’. Children’s Services became involved and in 2018 full custody of the children was given to the applicant in Victoria.
The applicant had a child in Victoria with his new partner. All six children lived with the applicant and his new partner. One of the applicant’s children required a high level of care due to autism spectrum disorder.
The applicant’s formal education ended at age 14. The applicant was sent to an Anglican-run hostel for problematic children where he witnessed significant violence.
The applicant had never been able to establish a consistent work history, however he had been able to maintain ‘menial jobs’ such as cleaning, trolley-collecting, security work and working at a bottle shop.
The applicant relied on three expert reports: a psychiatric report authored by Dr Jacqueline Rakov; a psychological report prepared by Kerrin Danswan; and a medical report submitted by the applicant’s general practitioner, Dr Marat Grosman. It was submitted that applicant presented as a high suicide risk, that he was currently in ‘protection’ in custody, and that the applicant had been on ‘suicide watch’ on a number of occasions since being remanded in 2019.
The applicant relied on Dr Rakov’s opinion that ‘[the applicant] remains a chronically high risk for mental state deterioration and suicide’. In Dr Rakov’s words:
[The applicant] has not been able to wholly accept these offences as just that. He continues to rationalise how they came to be and that there was a degree of benevolent purpose. On the other hand, he recognises the wrongfulness and feels significant shame and ruminates about them every day. Secondly, he displays that he is able to compartmentalise his shame because none of his co-prisoners know about his offending. When they come to inevitably learn this, I think his own lack of acceptance will mean entering a confronting reality which he has subjectively identified may tip him “over the edge.” Lastly, he displays limited protective factors when he oscillates towards negative thinking – that he cannot make it up to these children, that he doesn’t deserve to be a part of the family burial plot.
The applicant relied on Ms Danswan’s opinion to the effect that the applicant was suffering from a major depressive disorder with anxious distress, post-traumatic stress disorder, alcohol use disorder and prescription medication misuse (opioid use disorder).
Counsel for the applicant noted that there was an inconsistency between Ms Danswan’s report and Dr Rakov’s report:
because Dr Rakov is less clear and says that if there was a diagnosis of major depressive disorder, it’s now in remission but, Your Honour, that is inconsistent with someone who was high risk of suicide, in my submission. So, Your Honour, can take all of that collectively in my view and both reports do indicate that he is someone who is at risk of mental state deterioration and suicide.
Dr Grosman, the applicant’s longstanding GP, indicated that the applicant was ‘prone to depression, stress and anxiety, this was particularly prevalent during a prolonged custody fight with his former partner’.
In relation to alcohol and substance use, the applicant submitted that he is an alcoholic and that ‘basically for the whole of his adult life, he’s not had an alcohol-free day’. The applicant submitted that he had developed an addiction to various pain relief medications.
The applicant suffered from severe psoriasis which had caused him to be hospitalised whilst in custody. He also reported suffering from small strokes whilst in custody, but they did not require any further investigation or treatment.
When it came to the presence of any remorse for the applicant’s offending against his own children pursuant to the Henderson indictment, the applicant relied on certain comments that he had made during a telephone conversation with his mother and that had been recorded by prison authorities. In that conversation the applicant said:
something changed in here, in me and since coming in here, coming off the alcohol, coming off the pills, a lot of memories are flooding back in and I can’t deal with it, I can’t cope with them, can’t believe them at the same time. I will never forgive myself. I pray the kids will forgive me. I pray that you do too. I don’t expect it and I don’t know if you guys ever will.
The applicant submitted that the fifth and sixth limbs of Verdins applied.[22] It was submitted: ‘on the basis or the background of the reports, and that is that the sentence would weigh heavily on [the applicant], having regard to his precarious mental state and that his mental condition, given his suicidality’.
[22]See R v Verdins (2007) 16 VR 269;[2007] VSCA 102 (‘Verdins’). The fifth limb allows for mitigation if impaired mental functioning could mean that a sentence would weigh more heavily on an offender than it would a person in normal health. The sixth limb permits mitigation where there is a serious risk of imprisonment having a significant adverse effect on an offender’s mental health.
The applicant relied on a number of certificates that were said to demonstrate the applicant’s progress towards rehabilitation in custody. The applicant was also working whilst in prison.
The applicant had no relevant criminal history.
Sentence Reasons
The judge noted that the applicant’s offending occurred in circumstances where he was either a parent, a trusted guest and/or he was in a position of care and responsibility. The offending was thus in breach of trust.
The judge took into account that totality was an important sentencing consideration in a case like the present.
The judge took into account the relevant maximum penalties applicable to each offence.
The judge took into account that a ‘standard sentence’ of 10 years’ imprisonment applied in respect of charge 3 on the Henderson indictment; that a ‘standard sentence’ of 4 years applied in respect of charge 2 on the Wilson indictment; and that a ‘standard sentence’ of 6 years applied in the case of charge 3 on the Wilson indictment.[23] The judge paid particular regard to the correct method by which the relevant ‘standard sentence’ was to be taken into account,[24] as well as the effect that the ‘standard sentencing’ scheme had upon the imposition of a non-parole period.[25]
[23]The ‘standard sentence scheme’ applied by virtue of ss 5A and 5B of the Sentencing Act 1991 (‘the Sentencing Act’).
[24]Reasons, [110]–[111].
[25]Reasons, [112]; Sentencing Act, s 11A.
The judge noted that charge 3 on the Henderson indictment and all of the offending on the Wilson indictment was committed in breach of bail. Thus section 16(3C) of the Sentencing Act applied and the sentences imposed for those offences had to be served cumulatively unless otherwise ordered.
The judge was also aware that once he imposed sentences of imprisonment for charges 1 and 2 on the Henderson indictment the applicant would become a ‘serious sexual offender’ for the purposes of Part 2A of the Sentencing Act and the presumption of concurrency would be reversed, in any event, for any terms of imprisonment imposed thereafter.[26] Protection of the community from the applicant would also become the principal purpose for which sentence was to be imposed where the applicant was to be sentenced as a ‘serious sexual offender’.[27]
[26]Sentencing Act, s 6E.
[27]Sentencing Act, s 6D(a).
The judge considered it ‘aggravating’ where the applicant had offended in breach of bail.
Noting that the applicant’s offending was committed against young children, the judge stressed the need for deterrence (general and specific), denunciation and protection of children. Just punishment was important as were the applicant’s prospects of rehabilitation.
The judge considered that the offending the subject of the Matthews indictment was ‘clearly a very serious example of what is a very serious offence’.[28] The judge thought this offending ‘about mid-range’.[29] The victim was placed in the applicant’s care and was trusted by her mother. The offending was thus committed in breach of trust. The offending was committed in the presence of the applicant’s own daughter. The judge sentenced the applicant, on this indictment, on the basis that the applicant had pleaded guilty at the earliest opportunity. The judge also took into account the victim impact statements filed by the victim’s mother and grandmother. Each statement spoke of the ‘severe impact of [the applicant’s] offending … on the lives of the complainant and her family’.
[28]Reasons, [33].
[29]Ibid.
As to the Wilson indictment, the judge considered that the offending the subject of charges 2 and 3 was ‘both persistent and brazen’.[30] This offending was also committed in breach of trust as the applicant was considered a ‘trusted family friend’.[31] The victim was entitled ‘to feel safe in her own home with her parents and sister present’.[32] This was, in the judge’s view, ‘again very serious offending’.[33] The judge considered that the charge 2 offending was ‘below mid-range for this kind of offence’,[34] whilst the charge 3 offending was ‘at about mid-range’.[35] The offending the subject of charge 3 must have been a ‘frightening experience’ for the victim, so the judge considered.[36] The judge took into account the victim impact statements filed by the parents of the victim of this offending; they were ‘compelling documents’ which outlined the profound effect that the applicant’s offending had had upon the parents.[37] The judge also took into account a victim impact statement that had been filed by the victim herself which described how seriously the applicant’s offending had affected her.
[30]Ibid [46].
[31]Ibid.
[32]Ibid.
[33]Ibid [47].
[34]Ibid.
[35]Ibid.
[36]Ibid.
[37]Ibid [48].
The judge noted that the offending the subject of the Wilson indictment resolved at committal. The judge treated the applicant, on these charges, as having agreed to plead guilty ‘at an early stage’.[38]
[38]Ibid [50].
As for the Henderson indictment, the judge accepted that the applicant had expressed ‘some remorse’ in respect of this offending to his mother in the recorded phone conversation from prison.[39] The judge considered this offending to be ‘abhorrent’.[40] The judge described the applicant’s offending against Ivy as ‘prolonged, persistent and regular’.[41] As the judge put it:
It involved many sexual acts of penetration of a young girl whilst in your care as a parent and when you were in a position of trust.[42]
[39]Ibid [65].
[40]Ibid [66].
[41]Ibid.
[42]Ibid.
The judge thought the same could be said of the applicant’s offending against Abby; although, according to the judge, the same level of sexual acts were involved, the offending was for a shorter period than in the instance of Ivy. The entire period that the applicant offended against Abby, he was also offending against Ivy. The judge observed:
Your offending in charges 1 and 2 is clearly high-level offending of this kind. In my judgment it is towards the upper level for this kind of offending. The maximum penalty for each of the offences charged in Charges 1 and 2 on the Henderson Indictment reflects just how seriously the Parliament of this State regards this type of offending.[43]
[43]Ibid.
As for the charge 3 offending on the Henderson indictment, the judge noted that the applicant was in a trusted position in the home of the Wilsons, that the offending occurred at around the same time as the Wilson indictment offending and the applicant was on bail having ‘a short time previously been before the Magistrates’ Court for a filing hearing in relation to the Matthews offence’.[44] In taking advantage of his own daughter while she was enjoying herself with friends, the judge regarded the commission of this offence as ‘repugnant and abhorrent’.[45] The judge considered that the commission of this offence ‘falls at about mid-range for the offence’.[46]
[44]Ibid [67].
[45]Ibid.
[46]Ibid.
The judge had regard to, and indeed quoted from, a victim impact statement filed by Ivy which described the powerful effect that the applicant’s offending had had upon her.
The judge regarded the applicant as yet to develop ‘proper insight’ into what he had done and was unable to find that the applicant was ‘genuinely remorseful’.[47] The judge regarded the applicant’s pleas of guilty as being of ‘significant value’.[48] His Honour accepted that the pleas were indicative of an acceptance of responsibility and a desire to facilitate the administration of justice. The judge referred to the court time that had been saved by the pleas, as well as the stress and inconvenience to witnesses that had been avoided. The judge accepted that the applicant had indicated an intention to plead guilty at ‘an early time’ — even before service of the Henderson brief of evidence.[49]
[47]Ibid [71].
[48]Ibid [74].
[49]Ibid [75].
The judge referred to the statements of minimisation that the applicant had made to the psychiatrist Dr Rakov. The judge took into account Dr Rakov’s opinion that the applicant may have suffered from an adjustment disorder when he was first placed on remand as well as Dr Rakov’s view that, prior to incarceration, the applicant met the criteria for alcohol use disorder, opiate use disorder and benzodiazepine use disorder. The judge highlighted Dr Rakov’s opinion that the applicant was a high risk of re-offending in a manner similar to the present offences should he return to using alcohol and prescription drugs.
The judge referred, also, to the opinion of the psychologist Kerrin Danswan and her view that the applicant suffered from a major depressive disorder, post-traumatic stress disorder, alcohol use disorder and opioid use disorder. The judge took into account Ms Danswan’s opinion, also, that the applicant presented as a ‘high risk of future sexual offending’.
The judge accepted that the applicant was an alcoholic and that the applicant’s abuse of alcohol:
[F]orms a major fact in the context in which much of this offending against these children occurred.[50]
[50]Ibid [93].
In light of the psychiatric and psychological evidence, the judge concluded that the applicant did present as a ‘high risk of committing similar offences if the opportunity presents itself’.[51] In particular, the judge considered that the applicant’s prospects of rehabilitation were ‘poor’.[52] In light of the expert evidence, the judge declined to mitigate penalty on the basis of the fifth and sixth limbs of Verdins. The judge held, rather, that:
From the evidence presented you appear thus far to be coping quite well in prison and you are appropriately medicated.[53]
[51]Ibid [97].
[52]Ibid.
[53]Ibid [98].
The judge did accept that measures taken in prison to protect the prison population from COVID–19 ‘have made life in prison more burdensome that it would normally be’.[54]
[54]Ibid [101].
In describing the applicant’s offending overall, the judge remarked:
[The applicant’s] offending is I think properly described as falling within the upper quartile for offending of this kind deserving of condign punishment.[55]
[55]Ibid [117].
Grounds of appeal
It is convenient to begin with consideration of the applicant’s grounds 2 and 3. The basic premise upon which each of these grounds is based is that the sentencing judge erred in sentencing the applicant on charges 1 and 2 of the Wilson indictment on the basis that those charges were ‘rolled-up’ charges.[56]
[56]A ‘rolled-up’ charge captures more than one instance of offending, may only be included on an indictment with the agreement of an accused and only for the purposes of a guilty plea: see Lugo (a pseudonym) v The Queen [2020] VSCA 75, [68] (Priest JA).
It will be remembered that charge 1 was a charge of attempted sexual assault of a child under the age of 16, particularised as the applicant having attempted to cause the complainant to touch his penis. Charge 2 was a charge of sexual assault of a child under the age of 16 years, particularised as the applicant touching the complainant’s breasts.
The indictment itself specified that charge 2, only, was a ‘rolled-up charge’. Nevertheless, the SPO stated that both charges 1 and 2 were ‘rolled-up’ charges. And yet, when the SPO was read aloud on the plea, the prosecutor referred only to charge 1 as a ‘rolled-up’ charge. The designation ‘rolled-up’ charge found its way into the Reasons in respect of both charges 1 and 2. It is as well to set out, from the Reasons, precisely how this occurred.
38The offending in Charge 1 occurred in circumstances where you told the complainant to go to the spare room and lie on the bed, which she did. You then laid next to her and touched her breasts over her clothing. You then pulled her hand and tried to have her touch your penis. You told the complainant that you would not let her see her best friend, your daughter, if she did not go with you to the spare room. You also told her to keep secret what had occurred. Charge 1 attempted sexual assault of a child under 16 years. This is rolled-up charge embracing each of your vile acts.[57]
…
41Whilst this was happening the complainant was playing a computer game in her bedroom. Sometime after midnight you entered her bedroom and told her to go to the spare room. You then left. The complainant did not go to the spare room but you soon after came back. You said to her, ‘Catrina, why aren’t you in my bed yet? I asked you to go in about 10 minutes ago’. The complainant did not go to the spare room but you soon after returned to her bedroom. You tried to pull her out of the bed and take her computer from her. You then touched the complainant’s breast over her clothing. Charge 2, Sexual assault of a child under 16 years of age. As in Charge 1, this is an agreed rolled-up charge embracing each of your vile acts.[58]
[57]Emphasis added.
[58]Emphasis added.
The applicant submitted that there was only one incident referable to charge 1, as particularised, and this was the attempt by the applicant to have the complainant touch his penis. It was submitted that charge 1 could not include the touching of the complainant’s breasts — as referred to in paragraph [38] of the Reasons. Such an act was not an ‘attempt’ but, rather, a ‘sexual assault’. The touching of the breasts could only, so it was submitted, form ‘evidence of context’.
As to charge 2, the applicant submitted that there was only one act made referable to the charge, that is, one occasion when the applicant touched the complainant’s breast over her clothing. Thus, by no means, it was submitted, could charge 2 be described as a ‘rolled-up’ charge.
The applicant acknowledged that each of the sentences imposed on charges 1 and 2 of the Wilson indictment were made concurrent. Nevertheless, it was submitted that the sentencing discretion had miscarried. The sentence imposed on charge 1 was imprisonment for 1 year whereas the sentence imposed on charge 2 was 4 years’ imprisonment. It was submitted that the sentence on charge 2 was a very heavy sentence for one act of touching the complainant on her breast over her clothing. It was submitted that the imposition of such a long sentence on this charge was indicative of the fact that the judge had sentenced as if charge 2 was a ‘rolled-up’ charge; but this could not be correct.
The respondent conceded that the judge had erred in the Reasons when he made reference to the fact that charge 1 ‘was an agreed rolled-up charge embracing each of [the applicant’s] vile acts’. In the end, the respondent adopted this stance in respect of both grounds 2 and 3. Nevertheless, it was submitted by the respondent that any error in categorising charges 1 and 2 as ‘rolled-up’ charges was irrelevant because a different sentence would not have been expected to be passed on each of those charges.
As to ground 1 — the ground alleging manifest excess — the applicant emphasised the pleas of guilty, which were said to have been entered at ‘an early time’. It was submitted, however, that the sentences imposed failed to reflect the value of these pleas. In particular, the applicant was entitled to a significant additional utilitarian benefit in accordance with this Court’s decision in Worboyes v The Queen[59] on the Henderson indictment because the pleas on that indictment ‘were indicated and entered during the time the operation of the Courts was significantly disrupted by the COVID-19 pandemic’. It was submitted that had the judge given proper weight to the Worboyes considerations on the Henderson indictment the judge could not in the proper exercise of the sentencing discretion have arrived at the sentences that he did on that indictment.
[59](2021) 96 MVR 344 (‘Worboyes’).
Although the applicant acknowledged that the sentencing judge had not been asked to factor in an additional utilitarian benefit for the pleas on the Henderson indictment, that is to say on account of congested court lists caused by the pandemic, the applicant contended this was understandable in circumstances where he was sentenced prior to this Court having handed down its decision in Worboyes. Insofar as the applicant was asking this Court in determination of a ground of ‘manifest excess’ to bring to bear a matter that had not been relied upon or taken into account in the sentencing court, the applicant relied expressly upon what this Court said in Rossi v The Queen.[60] We will return to the significance of Rossi later in these reasons.
[60][2021] VSCA 296, [14] (Priest and T Forrest JA) (‘Rossi’).
As was clear, some of the applicant’s offending attracted the ‘standard sentencing’ scheme. Nevertheless, the applicant submitted that some of the most serious of his offending — the applicant’s commission of charges 1 and 2 on the Henderson indictment, for instance — did not attract that scheme. It was submitted that the judge had failed to pay sufficient regard to current sentencing practices which pre-dated the ‘standard sentencing’ scheme.
To make good a submission that the sentences imposed on charges 1 and 2 of the Henderson indictment were manifestly excessive, the applicant referred to a ‘Sentencing Snapshot’.[61] This ‘Snapshot’ revealed that between 2013-14 and 2017-18 the average length of a sentence of imprisonment for the offence of persistent sexual abuse of a child aged under 16 ranged between 5 years and 4 months and 7 years and 4 months. The median length of sentence was 6 years’ imprisonment.
[61]Sentencing Advisory Council, Sentencing Snapshot Persistent sexual abuse of a child under 16 (No 232, May 2019).
The applicant also relied on a number of other cases that were said to ‘shed light’ on current sentencing practices for the offence of persistent sexual abuse of a child under 16 prior to the introduction of the ‘standard sentencing’ scheme.[62] Reliance was placed on the following cases:
BM v R[63] where an offender pleaded guilty to one charge of persistent sexual abuse of a child under the age of 16, the victim being the offender’s natural daughter. The offender was sentenced to 12 years’ imprisonment with a non-parole period of nine years. The offending continued for 10 years and commenced when the victim was four. The offending occurred on most alternate weekends when the offender had custody of the victim on access visits. The offending included regular acts of sexual penetration or attempted penetration.
Bussell (a pseudonym) v The Queen[64] where the offender pleaded guilty to a charge of persistent sexual abuse of a child under 16 as well as a charge of incest. The offender was sentenced to nine years’ imprisonment on the persistent sexual abuse charge. The offender was the biological father of the victim. The offending occurred over an approximate nine-year period commencing when the victim was seven. The offending included regular acts of sexual intercourse.
Talbot (a pseudonym) v The Queen[65] where the offender pleaded guilty to two charges of persistent sexual abuse of a child under 16 and two charges of incest. The offender offended against his two step-daughters, hence the two charges of persistent sexual abuse. The first victim was aged approximately 11 when the offending commenced. The second victim was aged approximately 12 when the offending commenced against her. The offending lasted for around six years. The offending included regular indecent acts and acts of sexual penetration. The offender was sentenced to nine years’ imprisonment on each charge of persistent sexual abuse. Four years on one such charge was ordered to be served cumulatively upon the other.
Martin (a pseudonym) v The Queen[66] where the offender was found guilty by a jury of the offence of maintaining a sexual relationship with a child under 16.[67] The complainant was the offender’s daughter. The offending took place when the complainant was aged between four and 11. The jury were satisfied that instances of sexual offending (including acts of penetration) were committed upon the complainant on nine separate occasions. The offender was sentenced to 10 years and four months’ imprisonment on the maintaining a sexual relationship charge.
[62]The offence of persistent sexual abuse of a child under the age of 16 now carries a ‘standard sentence’ of 10 years’ imprisonment: Crimes Act 1958, s 49J(2A).
[63][2013] VSCA 3 (‘BM’).
[64][2014] VSCA 310 (‘Bussell’).
[65][2016] VSCA 218.
[66][2019] VSCA 60 (‘Martin’).
[67]A precursor to the persistent sexual abuse offence which also carried a maximum penalty of 25 years’ imprisonment.
The applicant submitted that the present charge 1 and 2 sentences on the Henderson indictment sat ill with the sentences imposed in BM, Bussell and Martin when the ages of the victims and length of offending apparent in those cases was compared with the ages of the relevant victims and length of relevant offending in the present case.
It was submitted that it was ‘peculiar’ that the sentencing judge had imposed the precise ‘standard sentence’ applicable in circumstances where the ‘standard sentence’ scheme applied, namely, 10 years’ imprisonment on charge 3 of the Henderson indictment, 4 years’ imprisonment on charge 2 of the Wilson indictment and 6 years’ imprisonment on charge 3 of the Wilson indictment. Indeed, it was submitted that the sentences imposed on these charges should have been lower in light of the nature of the relevant offending which pertained to each of these charges when they were examined against the context of relevant mitigatory features. It was put that the sentencing judge had placed ‘too much weight’ on the ‘standard sentence’ that was applicable in each case.
It was submitted that the extent of cumulation ordered both generally, and on the Henderson indictment in particular, was excessive. The level of cumulation (5 years) on charge 3 of the Henderson indictment was submitted to be excessive when the commission of this offence had been described by the judge as ‘opportunistic’.
It was submitted that the individual sentences, total effective sentence and non-parole period were all wholly outside the range of sentences that were reasonably open to be imposed in the circumstances.
The respondent did not concede that any of the sentences imposed were manifestly excessive, albeit that it was acknowledged that many of these sentences could be characterised as being of a ‘high order’. Yet it was submitted that the offending was truly depraved; that the victims were of a very young age; that the offending was in breach of trust and constituted an abuse of power. There was also a persistence of offending over time in all instances other than the Matthews indictment. The respondent emphasised that the applicant’s offending persisted even after he had been arrested, charged and bailed for child sex offences. It was submitted that the impact of the applicant’s offending on the four child victims had been significant and would endure for a long time.
It was submitted that the applicant was not remorseful and he was yet to develop proper insight.
The respondent conceded that the applicant’s pleas of guilty on the Henderson indictment, they having been entered on 5 August 2020, were apt to attract an additional utilitarian benefit due to the pandemic’s effect on court lists. It was submitted that whilst the sentencing judge had not taken this matter into account, ‘no different sentence would have been passed’ had things been otherwise and had Worboyes been applied.
The five-year order of cumulation ordered on charge 3 of the Henderson indictment was open, it was submitted, given that this offence was committed in breach of bail. The respondent emphasised that, indeed, all of the offending on the Wilson indictment was committed in breach of bail.
Importantly, the respondent submitted that there were no comparable cases that could be brought to bear upon this case in terms of current sentencing practices.
The respondent submitted that the objective circumstances of the commission of charge 3 on the Henderson indictment and charges 2 and 3 on the Wilson indictment left it open to the judge to impose the applicable ‘standard sentence’ for those charges.
The respondent emphasised that the applicant remained a ‘high risk’ of committing similar offences if the opportunity presented itself, and that the applicant had ‘poor prospects’ of rehabilitation.
The respondent submitted that the orders for cumulation were ‘unremarkable’ when account is taken of the continuing nature of the charges, the fact that there were multiple victims and that on some charges the applicant was sentenced as a ‘serious sexual offender’. It was submitted that the judge clearly had in mind the totality principle as well as the need not to impose a ‘crushing sentence’.
Consideration
Grounds 2 and 3 — ‘rolled-up’ charges?
In light of the respondent’s concession that on grounds 2 and 3 error has occurred, there is little need to dwell at any length on these grounds.
It does seem that the designation ‘rolled-up’ charge, whether appearing on the indictment or in the Crown summary, was relevantly inapt.
Insofar as charge 1 on the Wilson indictment was concerned, given the particularisation referable to that charge, it is difficult to see how it could have been proper to take into account (that is to say, as punishable) any touching by the applicant of the complainant’s breasts. As has been noted, nothing concerning charge 1 of the Wilson indictment suggested that this charge was a ‘rolled-up’ charge.
Insofar as charge 2 on the Wilson indictment is concerned, whilst this charge was described on the indictment as a ‘rolled-up’ charge, it is hard to see what other act, other than the act particularised, could possibly have been ‘rolled-up’ as punishable with the act particularised.
And yet his Honour sentenced on both charges 1 and 2 on the Wilson indictment as if those charges were ‘rolled-up’ charges. One has some sympathy for his Honour in having approached matters in this way given the rather confusing manner in which the prosecution case was presented on these charges.
Nevertheless, error having been conceded, the issue is whether a different sentence should be imposed on those charges,[68] or, perhaps, whether — despite the error — there is no reasonable prospect that this Court would reduce the total effective sentence.[69] It was not contended that these errors vitiated the sentencing discretion overall. Given the complete concurrency of the charge 1 and 2 sentences on the Wilson indictment this was not surprising. In light of this concurrency, even if different sentences were imposed on charges 1 and 2, it is unlikely that any reduction to those terms could avail the applicant. Nevertheless, whether different sentences ought be imposed on charges 1 and 2 of the Wilson indictment, or whether a reasonable prospect exists of a reduction to the total effective sentence, are questions that can be deferred until after consideration of ground 1 — manifest excess.
[68]Criminal Procedure Act 2009, s 281(1)(b) (‘CPA’).
[69]CPA, s 280(1)(b).
Ground 1 — manifest excess
Ground 1 focusses attention on the sentences imposed on both the Henderson and Wilson indictments. In assessing the substance of this ground it is convenient first to assess the sentences imposed on the Henderson indictment. This is so essentially for three reasons: first, because the sentence imposed on charge 1 of this indictment formed the base sentence (12 years’ imprisonment); secondly, because the sentences on this indictment taken together constitute 22 years out of the 28-year total effective term; and thirdly, because it was at the sentences imposed on the Henderson indictment that the applicant directed his Worboyes submission. Given the structure of the overall sentence, if there is merit to the applicant’s claim that the sentences on the Henderson indictment are manifestly excessive, then a reduction to the total effective sentence would be expected.
The entry of the pleas on the Henderson indictment occurred when Victoria was facing backlogs in court lists due to the COVID–19 pandemic. Thus, had the principle in Worboyes been decided by the time sentence was imposed in the present case, this principle would have applied to the applicant’s benefit. The sentencing judge took into account the effect that COVID–19 would have on the applicant’s experience of custody, but his Honour did not afford the applicant any special credit on account of the utility of the applicant’s pleas on the Henderson indictment being entered in the midst of the pandemic. Obviously enough, the judge can hardly be faulted for not having done so.
In Rossi, the offender pleaded guilty in May 2020 to various offences of dishonesty. The offender was sentenced in September 2020. At that time Victoria was in the grip of the COVID-19 pandemic. When sentencing, the judge gave the offender a benefit for the impact that COVID–19 would have upon service of her sentence. The sentencing judge in Rossi did not give the offender credit for any significant utilitarian benefit flowing from the offender’s pleas having been entered at a time when court lists were congested as a result of the pandemic. As in the present case, the original sentence in Rossi was imposed prior to this Court’s decision in Worboyes.
As in the present case, the applicant in Rossi claimed that the sentences imposed upon her were ‘manifestly excessive’. In resolution of that ground of appeal, this Court said:
Her Honour’s reasons for sentence are careful and conscientious, however we think it likely that, had the judge had the benefit of Worboyes, much greater weight in the sentencing mix would have been accorded to the significant utilitarian benefit arising from the applicant’s guilty pleas.[70]
…
Given these circumstances, we consider that the applicant’s pleas of guilty should have been reflected in far greater mitigation of the applicant’s sentence. Indeed, we have concluded that the sentence imposed is manifestly excessive.[71]
[70]Rossi [14] (Priest and T Forrest JJA).
[71]Ibid [16].
The Reasons in the present case, as in Rossi, are careful and conscientious. But, as the Court observed in Rossi, we think it is likely that had the sentencing judge in this case had the benefit of Worboyes, much greater weight in the sentencing mix on the Henderson indictment would have been accorded to the significant utilitarian benefit arising from the applicant’s pleas on that indictment.
Thus, notwithstanding the clear objective seriousness of the applicant’s offending on the Henderson indictment, and the relative paucity of matters that could be relied on by the applicant when it came to mitigation, we are driven to conclude that when the significant utilitarian benefit — described in Worboyes — to which the applicant was entitled by reference to his pleas entered on that indictment are factored into account, it becomes apparent that the overall sentence imposed on the Henderson indictment (22 years’ imprisonment) was manifestly excessive.
So much flows most clearly, in our view, from the imposition of an excessive base sentence imposed with respect to charge 1 on the Henderson indictment combined with an excessive order for cumulation on the charge 2 sentence on the same indictment. But a factoring in of the Worboyes discount must also lead to a similar conclusion in respect of the sentence imposed on charge 3 of the Henderson indictment, and the cumulation ordered in respect of that charge. Once the significant utilitarian benefit to which the applicant was entitled is taken into account these conclusions in our view must flow despite, for instance, the applicability of the ‘standard sentence’ scheme to charge 3 of the Henderson indictment; the applicant’s status as a ‘serious sexual offender’ in respect of that particular charge, and the fact that this charge 3 was committed in breach of bail.
Insofar as the Wilson indictment is concerned, in terms of the length of the applicant’s overall sentence, all that can be of practical concern is the sentence imposed on charge 3 and any cumulation ordered in respect of that charge. That is so because if the conceded errors established by grounds 1 and 2 operate to reduce the length of the individual terms imposed on charges 1 and 2 of the Wilson indictment, the concurrency of those terms will ensure that any reduced sentences on charges 1 and 2 will not extend beyond the duration of the total effective sentence or even the total sentence imposed on the Henderson indictment looked at in isolation.
That leaves, therefore, the sentence of 6 years’ imprisonment imposed on charge 3 of the Wilson indictment and its order for cumulation of 4 years. As is clear, in respect of this offence, the applicant was to be sentenced as a ‘serious sexual offender’; the ‘standard sentence’ scheme applied; and the commission of this offence occurred in breach of bail. The applicant was not, however, entitled to a Worboyes utilitarian benefit on this charge. In the end we are not persuaded that the sentence imposed on charge 3 of the Wilson indictment is manifestly excessive. However, we consider that the level of cumulation of 4 years in respect of that charge was wholly outside the range.
The conclusions that we have reached above put paid to any refusal of leave on grounds 2 and 3 on the basis that there is no reasonable prospect of a reduction to the total effective sentence notwithstanding the errors that those grounds describe.[72] The question whether a different sentence should be passed on charges 1 and 2 on the Wilson indictment having been deferred,[73] we are persuaded that a different sentence should be passed on those charges.
[72]CPA, s 280(1)(b).
[73]CPA, s 281(1)(b).
We have concluded that the total effective sentence imposed upon the applicant was manifestly excessive. This stems from our conclusion that the overall sentence imposed on the Henderson indictment was manifestly excessive as a result of the judge’s entirely understandable failure to bring to bear the significant utilitarian discount to which the applicant was entitled which was later described in Worboyes. And, quite separately, we are persuaded that the level of cumulation ordered on charge 3 of the Wilson indictment is manifestly excessive. It seems to us that the entirely understandable but erroneous reference to ‘rolled-up’ charges in respect of charges 1 and 2 on the Wilson indictment was likely materially to have altered the actual sentences imposed on those charges and also needs to be corrected.
As will become clear, we do not consider that all of the individual sentences imposed on the Henderson indictment are manifestly excessive. We do not consider, for instance, that the 8 year term imposed on charge 2 is manifestly excessive even taking into account Worboyes. Although the applicant’s offending against Abby was of shorter duration than the offending against Ivy; Abby was younger than Ivy and, in some respects, the offending committed upon her might be thought to have been more repulsive.
We would therefore grant the applicant leave to appeal; allow the appeal; set aside the sentences imposed in the County Court on the Henderson, Matthews and Wilson indictments and re-sentence the applicant as follows:
Henderson indictment
Charge 1 — 10 years’ imprisonment;
Charge 2 — 8 years’ imprisonment;
Charge 3 — 8 years’ imprisonment.
Matthews indictment
Charge 1 — 3 years’ imprisonment.
Wilson indictment
Charge 1 — 8 months’ imprisonment;
Charge 2 — 3 years’ imprisonment;
Charge 3 — 6 years’ imprisonment.
The sentence of 10 years’ imprisonment on charge 1 of the Henderson indictment will form the base sentence. Two years of the sentence imposed on charge 2 of the Henderson indictment, two years of the sentence imposed on charge 3 of the Henderson indictment, two years of the sentence imposed on charge 1 on the Matthews indictment, and three years of the sentence imposed on charge 3 of the Wilson indictment are ordered to be served cumulatively upon the sentence imposed on charge 1 of the Henderson indictment and upon each other making a total effective sentence of 19 years’ imprisonment. The sentences imposed on charges 1 and 2 of the Wilson indictment are to run concurrently with this term.
A non-parole period of 15 years is ordered.
But for the pleas of guilty the appellant would have been sentenced to 27 years’ imprisonment with a non-parole period of 19 years and 9 months.
All other orders and sentences imposed in the County Court are confirmed.
ANNEXURE A
Henderson indictment charge 1
a.“..when I was like, 10, 11, and we’d come to visit dad on [school] holidays and he would sexually assault me [sex, physical penetration] .. it was like, once every visit” Q34, 36, 53.
b.The sex would happen like once every visit, once or twice over the Christmas holidays (2.5 week stay): Q127, 129.
c.Her dad moved a lot (Q47, 48), one of the houses was in [Melbourne suburb]. Another address was in [street address] Q105.
d.“… he would take me into a different room and basically do stuff there”: Q68 Normally it was his bedroom or a bathroom: Q69.
e.“He would sexually penetrate me…with his penis.. his dick”: Q70, 71 , 74, “the penis in the vagina”: Q80.
f.It happened in the ensuite bathroom (Q326-328) “… I think [sibling] and [sibling] were having a bath .. a lot of the kids are distracted around that time” Q329. She was sitting on the cabinet (Q340-341)“..he was standing in front of me..”(Q345, 347). This was penis-vagina sex (Q348).
g.He would ejaculate. He wore a condom.: Q86, 87, 92.
h.The offending would start with her dad saying “Ok, follow me. You kids go play” although “there were a few times the kids would come knocking at the door” : Q139
[The applicant’s] partner [w]as working (or preoccupied: Q435). She would be gone in the morning and back around 4pm: Q143-144, 146.
j.When asked when the offending started, she stated sex happened once per visit (Q 395-396) and “..it started becoming, like, a routine, like every holiday kind of thing”: Q400.
k.It was the “..same thing, same just different location. A lot of the time it was just the exact same thing just different locations” (Q351).
l.It happened more regularly in the bedroom (Q462). “my pants would be removed”…(Q187-188) He removed his pants and got out his penis .. “he did it all by himself I wasn’t gunna, like, I was a 10 year old..ew”. (Q190) “I was lying like,… like side-wards on the bed.”… “He did, like penis in vagina”: Q80, 187-194.
m.She said: “.. the first time in the bathroom I did bleed. ..” : 403. This was the third house (Q406), “… when I was bleeding I was like, ‘is that normal?’ and he’s just like ‘yeah, just go in the bath and wash it out’ and I remember – ‘cause I was told ‘ you can’t tell people about this”: (Q408). She was undressed in the bathroom that day.. “cause I was about to go in the bath then he came in..” (Q424, 425).
n.It happened in the bathroom when she was supposed to be having a bath or shower — while the other kids were busy getting dressed, having a bath or getting ready for bed (Q208,209)…“yeah, and then I would go for my bath after” (Q208).
o.“.. I didn’t really have a choice in whenever it happened, it was just whenever he wanted” (Q172) “he would be like, “come on, it’ll be quick” (Q174) .. “he did, like, the penis in vagina, that’s all” (Q80).
p.There were no other acts than penis in vagina sex (Q181).
q.After she moved to Melbourne it happened one or two more times. This was in the bedroom: Q459-461).
a.“I was always told, like, it was a normal thing, .. ‘it’s normal just don’t tell people’ kind of thing..” : Q177, “ ..I was like, ‘ I want to be normal’ or something, cause I don’t — I’m really bad at secrets… so then to carry around a giant secret.. my dad was like … ‘it is normal, this happens with plenty of people’ kind of thing” (Q179).
b.She accepted this for a time: “..we were very close, I, like, trusted him a lot, so I never really questioned much that he did”: Q214.
c.However as she got older “.. [I] realised it was bad when I was like, 13 or something… …you start learning more about that stuff and you’re like, ‘wait, that’s not right’..” Q216, 226.
d.The offending only stopped at her insistence “…when I moved here start of last year [2018] [because] … I got him to stop”: Q97, 122.
e.The complainant negotiated to stop the offending. When he picked her up after football “.. [he] wouldn’t go home trying to convince me to do it with him again… he was like ‘oh, just do it, like ten more times’ .. and I managed to get him down to three .. he wouldn’t stop and we were driving in circles for half an hour, I just wanted to get out of the car.. ” Q99-101.
ANNEXURE B
Henderson indictment charge 2
a.Her dad touched her private parts without permission: Q24-25, including her chest, and her “butt and front [vagina]” Q29, 37.
b.He touched her butt and vagina with his hands Q39 and his “private part [his dick]” Q41, 45.
c.It happened when she was 9 years old (2016) when they came to see him for holidays, at [Melbourne]: Q48-52.
d.He touched her and got her to touch his penis (“private part”): Q63.
e.It was normally in his bedroom or her room: Q64, 65 — “I would have to be quiet.. and stand still while he touched my body parts”: Q70-71.
f.“he made me have sex” : Q73, every holiday: Q79.
g.“normally he would signal, ‘come over here’.. ” Q118; a hand signal Q126-127 “If I didn’t I’d get in trouble… he’d be mad”: Q120, 122.
h.“he would undress me” Q141, “He would take his pants off” Q142. “He got on me [on top]… [and].. make me have sex with him..”: Q150-157.
“he’d touch my private parts… feeling...the inside… put his finger in” Q169-173.
j.He introduced his penis into her mouth: “..I had to touch his private parts [his dick]… [with] my hands and mouth”… “I had to suck it”…“he would cum”… “I would have to swalllow [sic]… and then he would stop”: Q175-176, 188-191.
k.The offending happened multiple times: “that pretty much happened all the time when I was there… until the start of last year”: Q194, 196.
l.It happened every holiday, once or twice in the week they visited: Q267.
m.Nobody walked in: the bedroom door was locked. Dad locked it: Q280-284.
n.He touched her chest with his hands, mouth and dick: Q288-290.
o.After moving to Melbourne the year before, he would sneak into the room (shared) wake her up, and “do it in there” Q464-468, 471. He did not wear a condom: Q480.
p.She described her father touching her ‘butt’ with his dick Q292, 309-315. She stated this was “kind of rare”…“like, five times” Q567-568.
q.He told her to be quiet: Q326, and not to tell anyone else: Q327.
r.She did not say anything because “I didn’t want to lose my dad” Q497.
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