Henry v The King

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2023 0008

RAYMOND HENRY	Applicant
v
THE KING	Respondent

S EAPCR 2023 0002

DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
v
RAYMOND HENRY	Respondent

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JUDGES:	PRIEST AP, T FORREST and TAYLOR JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	21 March 2023
DATE OF JUDGMENT:	1 May 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 100
JUDGMENT APPEALED FROM:	DPP v Henry (County Court of Victoria, 9 December 2022, Judge Meredith)

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CRIMINAL LAW – Appeal – Conviction – Indecent assault – Whether verdicts of the jury were unreasonable or could not be supported by the evidence – Leave to appeal refused.
CRIMINAL LAW – Crown Appeal – Sentence – Indecent assault – Whether individual sentences, orders for cumulation and total effective sentence manifestly inadequate – Whether sentencing judge erred in suspending sentence – Appeal dismissed.

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Counsel
Applicant/Respondent:		Mr DA Dann KC
Appellant/Respondent:		Mr RL Gibson KC with Mr L McAuliffe
Solicitors
Applicant/Respondent:	Belleli King & Associates
Appellant/Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST AP
T FORREST JA
TAYLOR JA:

Following a trial, on 2 December 2022 a jury in the County Court found Raymond Henry guilty of four ‘course of conduct’ charges of indecent assault[1] (charges 1 to 4), all four charges relating to alleged offending against ‘AK’ between 1 January 1987 and 31 December 1988, when AK was aged 13 years. Subsequently, on 9 December 2022, the trial judge sentenced him to three years’ imprisonment, suspended for two years, in the manner set out below.[2]
[1]Crimes Act 1958 (as amended by the Crimes Act (Sexual Offences) Act 1980), s 44(1). The maximum sentence is five years’ imprisonment.
[2]At [72].
By a notice filed 6 January 2023, Mr Henry seeks leave to appeal against his conviction on the ground set out below.[3]
[3]At [7].
Further, by a notice filed the previous day, on 5 January 2023, pursuant to s 287 of the Criminal Procedure Act 2009 (‘CPA’), the Director of Public Prosecutions (‘DPP’) has appealed against the sentence on the grounds set out below.[4]
[4]At [73].
When dealing with the application for leave to appeal against conviction it will be convenient to refer to Mr Henry as ‘the applicant’, and as ‘the respondent’ when dealing with the DPP appeal.
For the reasons that follow, we would refuse the applicant leave to appeal against conviction. We would also dismiss the DPP’s appeal against sentence.

Application for leave to appeal against conviction

The applicant was convicted in the County Court of four charges of indecent assault. The alleged offences were said to have occurred in 1987 or 1988. At that time the maximum penalty for the offence of indecent assault was five years’ imprisonment. The applicant was sentenced to a total effective sentence of three years’ imprisonment, wholly suspended and with a purported operational period of two years.
He now seeks to appeal against his conviction on the following ground:
Ground 1 — The verdicts of the jury on all four charges were unreasonable or could not be supported by the evidence.
Particulars — Compounding improbabilities — Inconsistences and improbabilities in the complainant’s accounts.
Other grounds of appeal were abandoned by Senior Counsel for the applicant, who was not trial counsel. Further, at the hearing of this application Senior Counsel agreed that the argument put on the applicant’s behalf could not properly be described as one of compounding improbabilities.
The surviving ground is drawn from the language of s 276(1) of the CPA. This or similar provisions have received significant judicial scrutiny in the recent past,[5] appeals under this section are often called appeals on the basis that the jury verdict is ‘unsafe or unsatisfactory’. In appeals on the basis that the jury verdict is ‘unsafe and unsatisfactory’ the following principles apply:
(1)The appellate court must ask itself whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.[6]
(2)The court considering this question must bear in mind that the jury has the primary responsibility of determining guilt or otherwise and has had the benefit of seeing and hearing the witnesses.[7] The jury is the constitutional tribunal for deciding issues of fact.[8]
(3)In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where the jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt by an appellate court that the court may conclude that no miscarriage of justice occurred. [9]
(4)It is insufficient for an appellant to establish that the evidence might be sufficient to preclude a conclusion of guilt beyond reasonable doubt. For this ground to succeed an appellant must establish that, on that evidence, the jury must have entertained a reasonable doubt.[10] This is simply another way of saying that on the evidence it was not open to the jury to be satisfied to the criminal standard.
(5)In cases where the credit of a complainant is in dispute, the appellate court must proceed on the assumption that the complainant was assessed by the jury to be credible and reliable. The court will then examine ‘the record to see whether, notwithstanding that assessment — either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence — the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.’[11]
[5]M v The Queen (1994) 181 CLR 487 (‘M’); Libke v The Queen (2007) 230 CLR 559 (‘Libke’); R v Klamo (2008) 18 VR 644 (‘Klamo’); The Queen v Baden-Clay (2016) 258 CLR 308 (‘Baden-Clay’); Pell v The Queen (2020) 268 CLR 123 (‘Pell’); Dansie v The Queen (2022) 403 ALR 221 (‘Dansie’).
[6]M, 493 (Mason CJ, Deane, Dawson and Toohey JJ); Pell, 146–7 [43] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).
[7]M, 494–5, cited in Pell (2020) 268 CLR 123, 145 [38].
[8]Baden-Clay (2016) 258 CLR 308, 329 [65].
[9]M, 494.
[10]Libke, 596–7 [113] (Hayne J, Gleeson CJ and Heydon J agreeing), cited in Cavanaugh (a pseudonym) v The Queen [2021] VSCA 347 [206] (Walker JA) (‘Cavanaugh’).
[11]Pell, 145 [39].

Background

The prosecution case

Whilst the indictment alleged offending between 1 January 1987 and 31 December 1988, the evidence confined the dates to a much narrower period between early April 1987 and June or July 1987.
Essentially each charge alleged a different type of indecent conduct, each committed on multiple occasions during the period alleged. Charge 1 related to the applicant placing the complainant’s fingers into her vagina on multiple occasions. Charge 2 alleged that on the occasions charge 1 was being committed, the applicant would simultaneously place his fingers into the complainant’s vagina. Charge 3 alleged that on multiple occasions, when the applicant tried to place the complainant’s hand/fingers into her vagina and she pulled her hand away, he then pulled down the complainant’s track-suit pants and rubbed her clitoris with his finger. Charge 4 alleged that on multiple occasions, the applicant knelt over the complainant and placed her hand onto his erect penis over his underpants.
The applicant denied any sexual offending both in his police record of interview conducted in 2014, and in his evidence given in 2022.
Complaint evidence was led or read into the transcript from several witnesses and direct observations were led from the complainant’s twin brother, SB.
The applicant had no prior or subsequent convictions and called positive evidence of good character.

Evidence summary

This is a bald summary of the trial evidence. We may consider certain evidence in more detail when we examine ground 1.

The complainant

AK stated that as a child she lived with her mother and her twin brother SB. She had two much older sisters LH and KH. LH was married to the applicant — he assumed an almost parental relationship to the complainant and SB. When the complainant was about 13, her mother was very unwell and became hospitalised for a period of approximately two to three months. At that stage, the twins went to live with the applicant and LH. When staying there the twins slept in bedroom 3.[12] It was also known as the rumpus room. Usually, when staying there, the twins would go to bed at about 9:00 – 9:30 pm. When the complainant’s mother stayed there, she stayed in a nearby room. All the blinds and curtains were shut in the twins’ room at night.
[12]As described in Exhibit B — a computer-generated image of the relevant house.
The first incident of a sexual nature occurred at night: the complainant stated that she wore a nightie and briefs to bed. The applicant came to her bed when she was asleep. She awoke cold; her doona had been pulled off and her nightie had been pulled up. The applicant then fashioned her underwear into a sort of g-string. He then took her hand and inserted his finger and her finger into her vagina and pushed them in and out. The complainant went limp and cannot recall whether she said anything. The applicant said nothing. This went on for a few minutes. Then he pulled her nightie down, re-adjusted her briefs, pulled the doona cover over her and walked away. She knew it was the accused because he smelt of rum, he was the only person in the house who drank rum, and she saw his outline when she initially looked at him. She told no one of this incident at the time. She was frightened, felt dirty and didn’t want to upset her mother. This conduct of simultaneous digital penetration occurred on multiple occasions. It constituted charges 1 and 2 which were course of conduct charges.[13]
[13]CPA Schedule 1 Clause 4A (1), (2), (6).
The complainant further stated that after that first incident she wore tracksuit pants in addition to her nightie to bed. She also zipped up her sleeping bag and tied knots into the gathering string at the top of the sleeping bag in an effort to ‘deter it from happening again.’ Within a ‘week, a few weeks’ it happened again. He came in, undid the sleeping bag’s knots, unzipped the zipper and pulled her nightie up. He pulled her track suit pants down ‘fashioned [her] underwear into a g-string style’ and grabbed her hand. She pulled her hand away and he put ‘his hand in [her] underwear and fondled her clitoris’. This was at night time when everybody was asleep. SB was asleep in the bedroom and she couldn’t recall whether her mother had arrived home from hospital. This activity occurred on at least 10 occasions. On numerous of these occasions she said ‘no’, and on one of these last occasions she became quite vocal and he put his hand over her mouth. This conduct constituted charge 3, which was also a course of conduct charge.
These events happened either on a Friday night or a Saturday night when they were at that house. She was always asleep when he went in, and after her mother came home from hospital there would sometimes be a night light coming from her bedroom. On these occasions the applicant wore jocks, and on one occasion she remembered him wearing a t-shirt.
The complainant stated that on at least four occasions he put her hand on his erect penis, through his jocks. Each event lasted several minutes. The complainant stated that her recollection was that she stayed at her mother’s house for anywhere between 6 to 12 months. On at least two occasions she heard her sister (LH) call out and the applicant reply that he was just checking the dogs. At this stage, the applicant was clean shaven and had a crew cut. Her mother was usually in bed throughout this period. The complainant could not remember when the last occasion was. This conduct constituted charge 4 which was also a course of conduct charge.
The complainant said she told no one about these events while she was living at the applicant and LH’s house. When her mother had recovered, she, her mother and SB returned to the family home. In the six–month period after they returned she told SB that on many occasions the applicant had sexually molested her when they were staying at his place. SB, according to the complainant, was quite shocked and said he saw the applicant leaning over her. She wrote a similar complaint to a friend MN, and the two girls went to the complainant’s mother and told her. This happened not long after Christmas 1989. After the complainant told her mother that she had been sexually molested by the applicant, her mother asked MN to leave. Her mother said, amongst other things, ‘[a]s long as you’re alright, we don’t need to tell [LH] because it will break up the marriage.’
In future family activities when the applicant was present, the complainant stated that she had to ‘put on her armour’ and pretend nothing happened, although she avoided the applicant when she could.
In 1998, the complainant married GK. The applicant and LH were invited to a post-marriage/farewell to Melbourne celebration. The complainant stated that she felt she had to ask the applicant because if she had only invited LH, questions would have arisen and she wasn’t ready for that.
In 1999 GK, a soldier, was given a foreign posting. LH and the applicant came to their home in Brisbane and stayed for about a week to support the complainant. Apart from one other occasion in about 2002, that was the last social contact she had with the applicant.
In 2014 she reported the matter to police after dealing with a sexual assault organisation in Queensland.
On 17 November 2022 cross-examination of the complainant commenced. This process was lengthy and repetitive. Where relevant to this appeal we shall refer to parts of this cross-examination in our consideration of ground 1.

SB

SB is the twin brother of the complainant. When he was 13 or 14 he and his twin sister stayed at the applicant’s house while their mother was unwell. They slept in the same bedroom. He woke up on approximately three occasions to hear his sister saying no or grunting, and upon looking over saw ‘what I’m pretty sure was [the applicant] leaning over [the complainant].’ The light in that room was very dim; the only light source came from a hallway. The applicant was kneeling on the carpet when he leant over his sister. He was wearing jocks. Soon after the twins returned home the complainant told SB that the applicant had molested her. He was upset and then understood then that the applicant wasn’t comforting her, he was molesting her.
The prosecutor sought and received leave to cross-examine SB about a matter he had omitted in his evidence. After being shown his statement he had agreed that he had said to his sister during the complaint conversation:
I remember asking her ‘is that why you kept your sleeping bag so tight’ And she replied ‘yes to keep him out’.
In cross-examination he conceded that in all the time he stayed at the applicant’s house, he was not aware there was anything inappropriate going on between the applicant and his sister. He agreed that he never witnessed any inappropriate behaviour between the two.

LH

LH was 13 years older than her twin siblings. The applicant and she had an almost parental relationship towards the complainant and SB. She gave evidence about the sleeping arrangements and the layout of their house. The twins shared the rumpus room. LH’s mother slept in a nearby bedroom when she came back from hospital, at which point she was frail. The complainant and SB moved back to their home in June/July 1989 during the school holidays and then went on a trip to the Northern Territory at that time. Their mother stayed at her house for two to three months before she went home.
LH could not recall what bedding the twins used but there were red sleeping bags and spare blankets ‘which [she] imagine[d] they used’. LH’s evidence on whether the complainant slept in a red sleeping bag at material times varied. We shall examine it more closely under ground 1. There was a light always left on in the hallway adjacent to the bathroom and the rumpus room. There were no issues apparent when the twins stayed, and the families remained on friendly terms. SB’s bed was about two and a half ‘strides’ from the complainant’s bed.
In cross-examination LH stated she had a very close relationship with the complainant. The complainant never complained to her. After their mother died, LH and the complainant had a dispute over the estate. While the complainant stayed at her house in 1987, LH stated that she observed the complainant and the applicant to have ‘a fantastic relationship’. LH identified a photo taken in October 1987 which showed the applicant with hair and a moustache. [14]
[14]The hair in the photograph was medium length. The moustache was described in evidence as a ‘Merv Hughes’ moustache. This photograph was tendered as an exhibit at the trial.
LH said she never saw any strain between the applicant and the complainant subsequent to 1987. In 2002, she went to Queensland with the applicant to attend a child’s sporting event. The complainant and GK came to stay with them at a resort. It was relaxed and friendly.
LH stated that the red sleeping bags had zips but no drawstrings nor pinning arrangement. During that time, (1987) the applicant would wear boxer shorts to bed. He did not usually wear t-shirts. In 1987 bedroom doors were never closed; she never heard the complainant call out from the rumpus room and she could not recall ever calling out to the applicant asking where he was.
LH stated her husband had a seizure in July 2021 and subsequently had a brain tumour removed surgically. In re-examination[15] the witness said she knew the complainant had a green sleeping bag at her home, but stated there was no reason for her to bring that sleeping bag to the applicant’s house, so she concluded that the complainant slept in the red sleeping bag. She said she now remembered it was definitely red. She became aware that the complainant was making accusations against the applicant in 2004.

KH

[15]Cross-examination during re-examination was permitted under s 38 of the Evidence Act 2008.

As we have said KH was the elder sister of the complainant, SB and LH. She passed away before the trial commenced. By agreement her police statement and portions of her committal evidence were read to the jury. The complainant told her at a time when her mother was still alive, but very sick, that something had happened with the applicant and she was thinking of going to the police. At the committal KH stated that her mother died in 2006. She observed nothing unusual in the relationship between the applicant and the complainant at family functions. She said there was conflict over the estate.

Detective Leading Senior Constable Brecht

Detective Leading Senior Constable Brecht was the nominal informant. According to the medical records the complainant’s mother was admitted to Dandenong Hospital on 18 April 1987 and discharged on 8 May 1987. The police record of interview was played through the witness. The applicant consistently denied the offending and any sexual impropriety.
DLSC Brecht who was recalled later in the trial, said that the applicant had no prior convictions, nor had he been charged or investigated for any other matter.

Defence witnesses

Vyvyan Mai

In 2019 Vyvyan Mai was a practice manager for a medical practice where medical records were kept for the complainant. In 2019, she observed a card relating to 2 August 1987. August 1987 was the earliest date where there was any record of the complainant suffering from lower back pain.

The applicant

The applicant gave evidence that the complainant and SB stayed at his house for about four to six weeks in around April 1987. At no stage did he ever indecently assault the complainant, nor digitally touch her vagina or clitoris, nor place her hand on his penis. In 2021, he suffered a seizure and had brain surgery. Subsequently he has been a little slower. He also confirmed that he lost sight in his left eye in August 1997. In 1987, he didn’t have long hair, but it wasn’t a crew-cut. He confirmed that throughout that year his hair was at about the length depicted in a 1987 photograph tendered at trial and that he had a prominent moustache throughout that year. In 1987, the red sleeping bags were kept at the family house but he couldn’t recall whether they were used by the complainant. To his recollection, there were no green sleeping bags in the house when the twins were staying. He wore jocks when he went to bed.
He had no recollection of the complainant calling out ‘No’, or making noises that indicated some sort of distress. He had no recollection of Tess (the pet dog) barking. His relationship with the complainant between the time she came to stay with her brother, and the time she went to live in Queensland, was good.
In cross-examination, he maintained his denials of any inappropriate conduct. He agreed that in about 2004 he heard from his daughter that the complainant had stated that he had acted inappropriately towards her. He agreed there was no need for him to go into the rumpus room at night when the twins were staying there. Again he denied the offending.

JD and TD

The next witnesses were JD, the applicant’s sister, and her husband TD. When the twins were staying with the applicant and LH, TD would pick them up and drop them at school and later return them home, over a period of two weeks. He noticed nothing unusual about the complainant’s demeanour. TD saw the complainant regularly at family gatherings and observed only nominal interactions with others. The complainant did not appear to be in fear of the applicant. JD said she had a good friendly relationship with the twins. She would see the children quite often before her family left for Queensland. She never saw the complainant acting fearfully or in a withdrawn manner towards the applicant.

SH

SH, the applicant’s daughter, stated that the family had red sleeping bags at the family home. She was very close to the complainant as she grew up. She was about four years old in 1987. She never noticed any conflict or fear in the relationship between her father and the complainant. On an occasion in late 2004 she had a conversation with the complainant. The complainant said she needed to talk with her about something to do with her father. She said he had touched her when she was younger. The complainant said she had been seeing a psychologist and had suppressed memories uncovered during her visits. She discussed the matter with her immediate family when she returned to Victoria. There was then a family rift between her parents and the complainant.

Ground 1

In oral submissions, Senior Counsel for the applicant reformulated the submissions made in the written case. We shall not refer to the written case submissions. He refashioned the arguments to embrace 17 matters which, it was submitted, in combination, compelled a reasonable doubt — one which this court should experience and which the jury ought to have experienced.
It is not proposed to descend into each matter in great detail. Some can be dismissed as mere vagaries in detail after a 35-year gap between event and recollection. Others require a little more scrutiny. We have rearranged Senior Counsel’s ‘17 separate matters’ into a more manageable, if less impressive, number.
Senior Counsel contended that the complainant gave varying accounts of when the offending commenced and the duration of the offending. Further he contended that other evidence proved that the complainant’s evidence in this regard was inaccurate and unreliable. At the committal the complainant stated that these offences occurred when she was 14 years old. It is undisputed that she was born on October 15, 1973. It may be accepted that in fact she moved out of the relevant house in June/July 1987 when they went on a trip to the Northern Territory and, upon return to Victoria, did not return to the house. So, upon the reconstruction of dates, the complainant’s evidence that she was 14 when the impugned events occurred was inaccurate. If the events occurred, it was when she was 13.
Next, Senior Counsel for the applicant contended that the complainant’s evidence as to the duration of the offending was also inconsistent and lacking in credibility. In evidence the complainant stated that she lived at the applicant’s house for 6–12 months and the offending occurred most weekends. Other evidence in the case from the applicant, LH and KH was that the complainant and her brother moved in around 18 April 1987 and the trip to the Northern Territory occurred some time in June.
The applicant also relied on the complainant’s description of him at the relevant time. The complainant in her evidence said the applicant had a crew cut at the time of this offending, on another occasion she described it as a shaved head. She also stated that the applicant at the time of offending was clean-shaven. Unchallenged evidence was led that, throughout 1987 the applicant, then a young man, had medium length hair, fashioned into what is now known as a ‘Mullet’. In addition to this, the applicant also affected what was described as a ‘Merv Hughes’ moustache and various photographs taken at relevant times were tendered on the issue of his 1987 appearance. The applicant contends that, given he had a shaved head in the 1990s, the complainant’s mental picture of the offending is so inaccurate as to undermine her reliability as a witness. In answer to questions from the Bench, Senior Counsel confirmed that there was no evidence that other males lived in the household and that identity was not an issue at trial, or on this application.
Another asserted inconsistency relied upon by Senior Counsel, was evidence given by the complainant that the applicant, whilst assaulting her, was, on at least two occasions, disturbed by his wife calling out to him, and he made excuses about checking the dogs. LH gave evidence that that never occurred. Further, in notes the complainant made for herself, she alluded to the applicant also being disturbed by her mother, but when pressed, the complainant accepted that her mother did not disturb this activity; she qualified her answer by saying that her notes read ‘might be disturbed’.
Senior Counsel criticised the complainant’s account of her mother’s condition when she returned from hospital in May 1987. The complainant described her as ‘bedridden’ and ‘always in bed’. Contrastingly, LH described her mother as capable of getting up during the night and agreed that there was nothing wrong with her mother’s hearing.
Senior Counsel then pointed to several examples of the complainant’s evidence where she effectively stated that she was traumatised by the abuse and she ‘shrank away’ from him. At trial, evidence from LH, SB (the complainant’s brother), AD and JD (extended members of the applicant’s family) was to the opposite effect — the complainant, in the presence of the applicant, seemed a normal, happy young girl.
The applicant relied upon a letter the complainant had authored to her ‘Uncle Jimbo’ which, she accepted, was the first time she had reduced any form of complaint to writing. Trial counsel put to the complainant that she had said in this letter ‘I don’t recall exactly when it started but memory tells me it started and continued from pretty much the day we arrived to the day we left’. This, the applicant’s Senior Counsel on appeal contends is to be contrasted with the complainant’s statement to the police that the offending commenced within several weeks of her moving into the house.
Similarly, the applicant compared the complainant’s evidence as to the frequency of offending ‘on most weekends’ to her account to Uncle Jimbo of ‘every night’. The complainant however qualified this answer in the following passage:
So you told to [Uncle Jim]
I told him what I felt at the time, and it felt like every night, today it felt like every night.
In the Uncle Jimbo letter the complainant wrote of her twin brother — SB who saw what was going on every night. This was compared to her trial evidence that he saw the applicant bending over her. We interpose that SB gave evidence about what he saw as well:
I can remember waking during the nights to my sister saying no or grunting and looking over and seeing [the applicant] bending over [the complainant].
He then told the court that he saw this on three occasions.
The applicant at trial relied on the following alleged inconsistency. The complainant at trial stated in her police statement:
I was generally asleep when incidents happened with [the applicant].
Astonishingly she was then asked:
Well were you generally asleep or always asleep?---Um I was always asleep.
So, why did you say in your statement you were generally asleep?---I can’t explain why I would use the word generally, it was the second page of making the statement of the horrible things that had happened to me.
All right, but you were being asked to give precise and truthful details of it? I misused the word general, [counsel].
The applicant contended that the complainant’s pre-statement notes recorded that he always wore jocks and a t-shirt, whereas in evidence she stated that he wore jocks but wore a t-shirt once. These were ‘polar opposites’, according to the applicant’s case.
On this appeal, the complainant was criticised for her refusal to accept some assertedly objective evidence of when a back operation was performed on her. She thought that it had occurred in 1989. Other members of her family thought that it took place in 1987. Later in the trial, the complainant was recalled and produced medical notes and correspondence which demonstrated that she underwent two back operations, both in 1989. She was also criticised for overestimating her mother’s stay in hospital. She said two to three months — the hospital records demonstrated 20 days.
At trial, as we have observed, the complainant gave evidence that she would sleep in a sleeping bag, and would triple-tie drawstrings and would pin it, to endeavour to protect herself from the applicant’s advances. The applicant relied on evidence from LH that the sleeping bags in that household were red with no drawstrings, just zips and that the complainant slept in one of these red sleeping bags. The complainant said her sleeping bag was green with a string gathering mechanism and a zip that could convert it from a single bag to a double blanket.
Later, she accepted that the sleeping bag could have been another colour, although she did own a green sleeping bag as a teenager. Her final position was that her recollection was that the relevant sleeping bag was green. She could not recall the colour of her brother’s sleeping bag. It was submitted on this application that the jury should have accepted LH’s evidence that the complainant’s sleeping bag was red. This being the case, it was argued that the complainant’s account of triple-tying the drawstrings and pinning it must be false as there was no capacity for this to occur with the red sleeping bag.
Next, the applicant contended that there were significant improbabilities in the complainant’s account. The timing of these alleged incidents must have been when his wife LH was at the house; when all relevant doors were open; LH’s room was in the near proximity to the twins bedroom; her mother was home from some date in May and SB was also in the near proximity.
The applicant relied on this sequence of questions and answers given by SB:
But during all the time you were staying at the Endeavour Hills property, you were not aware that there was anything inappropriate going on between [the applicant] and your sister, were you?---I was not.
And more particularly, you never witnessed any inappropriate behaviour between [the applicant] and your sister, did you?---No, I didn’t.
In cross-examination shortly thereafter the following exchange occurred:
In fact, you accept, don’t you, that in your statement, you said: ‘I could see [the applicant] kneeling or crouching over her. I couldn’t see what he was doing as I was looking from behind and could only see his back. I just assumed that [the complainant] was having a bad dream or couldn’t sleep, and [the applicant] was just trying to help her. I didn’t watch any longer than that; I would just lie back down and go back to sleep. In the morning, everything would be normal.’ Is that right?---That’s right.
Finally Senior Counsel directed us, in conducting our independent evaluation of the evidence, to consider all the evidence and the directions given by the judge including a good character direction and a forensic disadvantage direction.
The respondent, whilst accepting that there were certain inaccuracies and inconsistencies in the record, contended that the core of the complainant’s evidence remained consistent throughout and derived significant support from the evidence of SB and the other complaint witnesses. The jury were well placed to evaluate these matters. There was nothing in the record which compelled the jury to have a reasonable doubt.

Analysis

It must be kept firmly in mind that the jury assessed the complainant’s evidence as credible and reliable. This analysis proceeds on that basis. Our examination of the record is to evaluate, notwithstanding that assessment, whether by reason of inconsistencies, discrepancies or other inadequacy, or in light of other evidence the jury ought to have entertained a reasonable doubt as to proof of guilt.
We have concluded that whilst various inconsistences and conflicts in the evidence have been identified, taken in combination, they are insufficient to compel a reasonable doubt. We have reached this conclusion for the following reasons:
(a)Notwithstanding the often argumentative and meandering cross-examination the complainant remained unshaken on her core allegations that the applicant behaved indecently in four different ways on many occasions.
(b)The complainant’s evidence derived powerful support, in our own view, from the evidence of her twin brother SB. On three or four occasions he woke to hear his sister saying ‘no’ or grunting at a time when the applicant, wearing only jocks, was kneeling and leaning over the complainant as she lay in bed. It is not to the point that SB was only ‘pretty sure’ it was the applicant. He was the only adult male in the house, and by his own account wore only jocks to bed at that time. It is also not to the point that in cross-examination SB agreed that he did not ever witness any inappropriate behaviour between the two. What SB did witness on multiple occasions late at night established that the applicant was in precisely the position alleged by the complainant, and clad only in jocks. SB’s evidence that his sister told him, shortly after they returned home, that the applicant had molested her could also have been used by the jury to support the complainant’s credibility and as evidence of that disputed fact. It will be recalled that SB also recalled asking his sister ‘is that why you kept your sleeping bag so tight’ and she replied ‘yes to keep him out’.
(c)Other evidence of complaint to the complainant’s mother and to MN not long after Christmas 1989 was unsupported by independent evidence, and lacks the cogency of SB’s evidence, nevertheless it was open to the jury to accept the complainant’s evidence in this regard. KH, the elder sister of the complainant SB and LH, gave evidence that before her mother’s death in 2006 the complainant stated to her that something had happened with the applicant and she was thinking of going to the police. This provides some support for the complainant’s evidence, however it has a collateral significance. This evidence provides independent support for the proposition that the complainant was airing these allegations before there could be any dispute over the mother’s estate. It was open to the jury to accept that the complainant was making consistent complaints about the applicant’s conduct from well before any family dispute arose. Assuming this to be the case the development of that dispute around and after the time of the mother’s death is neutralised as a motive or precipitating factor for false allegations.
(d)In our view many of the inconsistencies identified by the applicant’s counsel at trial are inconsequential or of little weight. In particular we consider that:
•The different accounts of when the offending commenced and its duration are of no real significance in the evaluation of the complainant’s evidence. Whether she was 13 or 14 years old at the relevant time and whether the offending occurred over weeks or months were the subject of legitimate, if prolix, cross-examination. It is unsurprising that, after more than 30 years, repeated accounts of an adolescent recollection of multiple traumatic sexual assaults will throw up some variations.
•The complainant’s description of the applicant is at odds with other evidence in the case. This conflict in the evidence would assume some significance if identity were in issue at trial, or in this appeal. However it was never in issue. There was only one male (apart from SB) who lived at that address. the applicant was obviously very well known to the twins. Both said it was the applicant. Both said the light was dim. Whether the complainant is recalling what the applicant looked like in 1987 or at some subsequent time may impact marginally on her reliability as a witness, however it was open to the jury to consider this vagary in recollection as having no real impact on the reliability and credibility of the core allegations.
•There is little consequence to the dispute over the sleeping bags. As we have said the defence at trial sought to establish that red sleeping bags were provided to the twins for their use at the applicant’s house. The forensic purpose was to demonstrate that these sleeping bags did not have draw strings around a hood nor some type of pinning arrangement, and this therefore refuted the complainant’s evidence that she triple-knotted the draw string and pinned the sleeping bag so as to make access to her by the applicant more difficult. In our view, it was never satisfactorily established that the sleeping bag used by the complainant was, in fact, the stringless red bag variety. We consider that it was open to the jury to accept the complainant’s evidence that, after the first occasion she triple-tied and pinned her sleeping bag in an endeavour to deter the advances of the applicant. In particular we note that at various times during her evidence on this issue LH said alternatively:
(i)I imagine they used red sleeping bags.
(ii)I can’t honestly remember (what bed coverings the twins were using).
(iii)I can’t imagine while moving (the twins) up to our place we also bought sleeping bags and such.
(iv)Either red or green (sleeping bags).
(v)The complainant and SB used red sleeping bags.
•Criticisms of the complainant’s evidence that she kept her eyes shut during all incidents or that she froze are inconsequential.
•The alleged improbability of this sort of offending occurring in a busy open doors household ignores the timing of offences — late at night, and the near silent nature of the offending. Further, it is the Court’s experience that offending of this nature can occur in far more brazen circumstances than those described by the complainant. [16]
•The complainant was heavily criticised in defence counsel’s cross-examination and in his final address for refusing to accept that she had back troubles and surgery in 1987. A single medical note was said to be objective evidence of this fact together with the vague, imprecise recollections of LH, JD and KH. The complainant said the record was a ‘typo’. After her evidence had concluded, she provided documentation that she had first a lumbar spinal discectomy and then a lumbar spinal laminectomy in 1989. Given the emphasis that was placed by the defence counsel on the ‘objective evidence’, his Honour took the unusual course of allowing the prosecution to re-open their case to adduce documentary evidence of letters from the complainant’s then orthopaedic surgeon Mr Lugg to her GP proposing the discectomy, reporting on its initial success, reporting on the redevelopment of sciatica, proposing a laminectomy and reporting on its success. These letters were dated between 31 January 1989 and 31 August 1989. The RGH Heidelberg Hospital discharge notes for the first discectomy procedure indicate that the operation was performed on 7 February 1989 and that she was discharged on 14 February 1989. It was perhaps a legitimate forensic object to briefly inquire of the complainant when in 1987, her back surgery was undertaken, because it may have provided a point of reference to narrow the timeframe of the offending behaviour — for example ‘did it happen before or after your back injury?’. To allow it then to metamorphosise into a full scale credit attack that had nothing whatsoever to do with any aspect of the case was one of many wrongheaded ventures into the irrelevant. We can only speculate what the jury was making of this.
•The evidence from the complainant was that on at least two occasions LH called out to the applicant whilst he was in the rumpus room. LH denied this. This conflict in the evidence was of no real consequence. The complainant and her sister had different recollections about something briefly said 35 years ago.
•Similarly there was a conflict in evidence between the complainant who said that at family events after she was indecently assaulted she tried to avoid the applicant or that she ‘shrank away’ from him, and the other family members who observed no change in the affectionate relationship. We do not consider this conflict in evidence to be a significant matter. These sorts of perceptions are essentially subjective and different minds might take different views about an individual’s demeanour. Some explanation of these different accounts may be found in the complainant’s evidence that at family events she would ‘put on her armour’ and pretend nothing had happened.
•The complainant’s account that her mother was ‘bedridden’ when she returned from hospital in 1987 was criticised as being inconsistent with KH’s evidence that their mother was capable of getting up at night and was not always in bed. Again, this is a matter of subjective perception and a 13 year old’s perception of ‘bedridden’ may be quite different from a 26 year old’s.
•The complainant was criticised for a letter she wrote to her Uncle Jimbo, which was the first reduction of her complaints to writing. She conceded that her commencement date (from the day she arrived) was different to her police statement, and further the frequency of offending also differed. In her letter she said it occurred ‘every night’ as compared to her evidence which estimated that it happened ‘on most weekends’. When pressed about this matter the applicant said ‘it felt like it [happened] every night’. These inconsistencies were clearly exposed to the jury for their consideration.
•The distinction between ‘generally asleep’ and ‘always asleep’[17] does not merit discussion.
[16]See eg James v The King [2023] VSCA 34, [132].
[17]See [56] above.

There is nothing in the record to undermine the prosecution case so as to compel a reasonable doubt about the applicant’s guilt. True it is that the applicant had good character to rely upon, and gave evidence denying the offending. Further, he could rely on other judicial directions including a forensic disadvantage direction. Like the complainant, his evidence whilst challenged remained generally intact. By its verdict however, the jury, as we have noted, accepted the complainant as a reliable and credible witness. On all the evidence it was open to the jury to reject the applicant’s denials and to conclude that they were satisfied beyond reasonable doubt of the applicant’s guilt. On this independent evaluation of the evidence, underpinned by the assumption that the complainant was assessed by the jury as credible and reliable, we concur with the verdicts returned.
Before we conclude discussion on this ground we wish to return to the conduct of the defence in this trial. It will be recalled that we have used adjectives such as prolix, repetitive, irrelevant, argumentative and meandering. It was also at times insulting and offensive. We shall cite an example.
DEFENCE COUNSEL: Right. Do you accept that at the committal, unlike today when you’re giving your evidence in-chief, you did not shed a tear as you’re giving your evidence. Do you accept that?
PROSECUTOR: Your Honour I find that inappropriate and irrelevant.
HIS HONOUR: I think that’s right. I mean there’s a whole lot of assumptions that may or may not underpin that which are not established necessarily. So, I won’t permit that question. All right? You can ask another question if you want, but - - -
DEFENCE COUNSEL: Well, perhaps I’ll ask it directly.
HIS HONOUR: Yes. That would be a good idea.
DEFENCE COUNSEL: I’m going to suggest to you, sorry?
HIS HONOUR: That would be a good idea.
DEFENCE COUNSEL: Yes. I’m going to suggest to you that your evidence in-chief today was a performance by you. Do you accept that?
COMPLAINANT: I don’t accept that.
DEFENCE COUNSEL: All right. And that the tears that were shed were not tears that you felt the need to shed at committal. Do you accept that?
COMPLAINANT: I do not accept that.
The application for leave to appeal against conviction is refused.

The DPP appeal

Introduction

As we have said, following the respondent’s conviction by jury verdict on 2 December 2022, on 9 December 2022 the trial judge sentenced him to three years’ imprisonment, suspended for two years.
The sentence was structured as follows. On each of charges 1 and 2, the respondent was sentenced to 30 months’ imprisonment; on charge 3, 27 months’ imprisonment; and on charge 4, 24 months’ imprisonment. Two months of the sentences on each of charges 2, 3 and 4, were ordered to be served cumulatively upon the sentence on charge 1.[18] The total effective sentence was thus three years’ imprisonment, which the judge purported to suspend for an operational period of two years.
[18]The respondent was sentenced as a serious sexual offender on charges 3 and 4. See Sentencing Act 1991, Part 2A (ss 6A to 6F) .
The DPP appealed against the sentence relying on two ‘grounds’, formulated as follows:
1The individual sentences imposed on each of charges 1, 2, 3 and 4, the orders for cumulation and the total effective sentence are all manifestly inadequate.
2The learned sentencing judge erred by suspending the 3 years sentence of imprisonment for a period shorter than 3 years.

As we will explain, the alleged error underpinning supposed ‘ground’ 2 should not have been regarded as proper subject-matter for a DPP appeal. Ground 2 therefore should not have been included in the notice of appeal. And as we will further explain, the appeal must be dismissed.

Reasons for sentence

In his sentencing remarks, the judge said that the ‘most favourable view of the facts open’ was that the respondent offended from early April to around June of 1987. The judge accepted AK’s evidence, however, that the conduct founding charge 3 occurred on at least ten occasions; the conduct on charge 4 occurred on at least four occasions; and the conduct on charges 1 and 2 occurred on ‘numerous occasions’. AK was aged 13 and the respondent was in his ‘late 20s’.
The judge said he took into account the admissible parts of AK’s victim impact statement, which was ‘eloquent testimony to the significant and ongoing harm which [the respondent’s] offending has caused’. The far-reaching consequences of the respondent’s conduct included the fracturing of family relationships.
Given that the respondent had stood trial and been found guilty, the judge said, he was ‘not entitled to any of the mitigatory benefits that would have been available to [him] had [he] pleaded guilty’.
The judge noted that the respondent was now aged 63. He has been in a long-term relationship with AK’s sister and has three children. The judge said he had regard to a number of character references which attested to the respondent’s otherwise good character.
With respect to the respondent’s health, discharge summaries from Monash Health recorded that the respondent was diagnosed with a cranial meningioma — a tumour of the lining of the brain — in August 2021, requiring a craniotomy and excision of the tumour. The judge noted that the respondent had lost vision in one eye.
Further, the judge had received a report from a psychologist, Ms Ling Mu, dated 7 December 2022. Ms Mu reported that the respondent’s history suggests that he experienced his first episode of major depressive disorder in the early 2000s. At that time, his condition remained relatively stable as he was treated with antidepressant medication. In 2017 and 2021, however, the respondent experienced an exacerbation of his depressive disorder. Ms Mu said that the respondent ‘has been experiencing depressive symptoms, consistent with a diagnosis of Major Depressive Disorder’, the respondent’s symptoms consisting of ‘low mood, diminished interest in activities, decreased sleep, loss of energy, feelings of worthlessness and hopelessness and diminished ability to concentrate’. These symptoms, Ms Mu said, have ‘caused significant distress’ for the respondent which have ‘impacted on his social and family relationships’. Significantly, Ms Mu’s opinion was that, given the respondent’s ‘mental health disorder and history’, imprisonment will weigh more heavily on him than it would on a person in normal health. Imprisonment, Ms Mu said, will ‘cause a greater adverse effect on [his] major depressive disorder and increase his risk of self-harm and suicide’.
In light of the above, the judge accepted that ‘imprisonment would be more burdensome for [the respondent] than another, not having [his] various mental and health conditions’.
The judge noted that the respondent’s offending, in particular, the digital penetration ‘represents a serious example of this offence’. When regard is had to the frequency, duration, and the circumstances in which the conduct occurred, the respondent’s offending ‘is self-evidently serious’. It was ‘characterised by a shameless and reprehensible breach of the trust that should exist between every adult family member and child’. The judge said that, whilst it may not be as serious as some other examples of child sexual offending, nonetheless the respondent ‘placed [his] own depraved sexual wants above those of the welfare of an innocent young child’; and, in doing so, ‘breached not only her trust, but that of [his] partner and others’. It followed that deterrence and curial denunciation of the conduct ‘must be appropriately emphasised’ in the sentence.
As to the relevance of delay, the judge said:
I accept that you have had to live with the uncertainty of what the outcome of the court process would be, consequent upon the delay between these matters coming to light and my sentencing of you, and I accept this has caused you a degree of stress and anxiety.
I accept that your advancing years will add to the burden of any term of imprisonment. You do present at this stage of your life, as having had major surgery to remove a brain tumour in the recent past. I further accept that as your age increases, so does its detrimental impact on you and that colloquially, you are somewhat frail and declining generally. Your advancing age is a function of the delay between your offending and my sentencing of you.
The delay in the commencement of an investigation into your conduct is linked to the nature of your offences. Factors such as its effect on the complainant, as well as feelings of shame and embarrassment, which are common in offending of this type, the complainant’s young age and the power imbalance that existed between yourself and her, you having a position of trust within the family unit generally, are all factors that have all contributed to the delay.
…
It is not uncommon for victims of this type of offending to experience feelings of shame, guilt and confusion. You are the only one in this court who ought feel ashamed and guilty of the conduct which has taken place. In sentencing you, I accept that the very nature of your offending has contributed to the delay in the prosecution of you. The fact however remains, that I am now sentencing you many years after the last of your offending, with you now reaching advanced years and recently as I have said, having undergone significant surgery. The reason for the delay between the complainant’s formal statement and your interview and investigation remains unclear. The reason however does not affect the length of time during which you have had this matter hanging over your head.
…
In the intervening period between your offending and now, you are as I have said, increasing in age and you have not reoffended. There is no material before me to suggest that you have further offended. In light of these factors, I do assess your rehabilitative prospects as positive, and I am of the view that you represent a low risk of reoffending.
The passage of time since the offences were committed, does place you at a lower risk of reoffending in the same way in my view.
Further, the judge observed that, notwithstanding this passage of time, ‘general deterrence must assume considerable significance as a sentencing consideration’. The imposition of a community correction order as contended for by the respondent’s counsel ‘would not adequately mark the seriousness of your conduct and is not an appropriate penalty’. And he said:
After having given the matter anxious consideration, in light of the passage of time since your offending and your intervening health issues, in my view notwithstanding the seriousness of your offending, a wholly suspended sentence is an appropriate disposition in your case.
What I propose is to wholly suspend the terms of imprisonment that your offending warrants. This in the circumstances of your case, represents an appropriate recognition of the need for deterrence, but also takes into account the mitigatory matters that can be called on in your behalf.

Ground 2: Suspending the sentence of imprisonment for less than three years

It is convenient to turn first to the second ‘ground’.
As a result of the Sentencing Amendment (Abolition of Suspended Sentences and Other Matters) Act 2013, suspended sentences of imprisonment are no longer available in the County Court as a sentencing option for all offence committed after 1 September 2014.[19]
[19]With respect to ‘serious offences’ they are not available for offences committed after 1 May 2011.
When suspended sentences were available, the length of the period of suspension was governed by (now repealed) s 27(2A) of the Sentencing Act 1991, which provided:
(2A) The period for which the whole or a part of a sentence of imprisonment may be suspended is —
(a) the length of the suspended term of imprisonment; or
(b) another period specified by the court not exceeding 3 years, in the case of the Supreme Court or the County Court, or 2 years, in the case of the Magistrates' Court—
whichever is the longer.
In written submissions in support of ground 2, counsel for the DPP submitted that the ‘sentence cannot be permitted to stand’. Counsel submitted that the ‘sentence imposed here was unlawful, simply because the operational period (2 years) fixed by the judge was shorter than 3 years, which was both the “suspended term of imprisonment” and the jurisdictional limit’.
During oral argument, there was debate as to whether, absent manifest inadequacy, specific error alone is sufficient for the DPP to succeed in an appeal under s 287 of the CPA. The parties were thus directed to file supplementary written submissions addressing that issue.
In their supplementary submissions, counsel for the DPP submitted that the issue was resolved by O’Neill.[20] They submitted that the DPP can succeed on appeal by establishing specific error without manifest inadequacy
[20]DPP v O’Neill (2015) 47 VR 395 (Warren CJ , Redlich and Kaye JJA) (‘O’Neill’).
Ultimately, we have come to the conclusion that we need not attempt to resolve the issue in the present case, since we are affirmatively of the view that ground 2 should not have been included in a notice of appeal.
In our view, the judge’s error in declaring a two year period of suspension rather than a three year period was quite simply and easily curable without attempting to invoke the jurisdiction of this Court. Thus, by virtue of s 104A(1) of the Sentencing Act 1991 a judge who passed sentence (or purported to pass sentence), may at any time, on his or her own initiative or on an application made on behalf of the defence or the prosecution, amend the sentence (or purported sentence) if satisfied that it contains ‘an error arising from an accidental slip or omission’, or if ‘it fails to deal with a matter that it would have undoubtedly dealt with in accordance with the amendment if the attention of the judge … had been drawn to it’.
We have no doubt that, had the DPP adopted the simple expedient of drawing the judge’s attention to what was obviously an accidental slip, he would have corrected it, and substituted an operational period of three years. In those circumstances, it is difficult to see that the DPP could properly have been ‘satisfied that an appeal should be brought in the public interest’ on ground 2.[21] We consider that there is force in the observations in Chatterton,[22] where the Court said that s 287 of the CPA
requires that the Director be satisfied that an appeal should be brought ‘in the public interest’. It is difficult to see how a specific error, which does not of itself constitute an error of principle, can ever, in the absence of manifest inadequacy, warrant setting aside the sentence originally imposed. There is no warrant, in the legislation, for this Court to ‘tinker’ with a sentence imposed below merely because the judge acted upon some erroneous view of the evidence. A good deal more must be shown before a Crown appeal can succeed.
In context, the ‘different sentence’ to which s 289 refers should, in our view, be understood as one which reflects the fact that the original sentence was manifestly, clearly, or plainly inadequate.
[21]See CPA, s 287(b).
[22]DPP v Chatterton [2014] VSCA 1, [81]–[82] (Weinberg, Whelan and Priest JJA) (‘Chatterton’). See also DPP v Heavy Mechanics Pty Ltd [2023] VSCA 69, [7] (Priest JA); cf [61] (Niall and Macaulay JJA).
Moreover, even were we capable of the reaching the view that the declaration of a two year operational period was ‘an error in the sentence first imposed’ in the sense that it could be said to represent an error of principle, we would nonetheless dismiss the appeal on ground 2 since, as will become clear, we do not consider that ‘a different sentence should be imposed’.[23] On any view, s 287 of the CPA could not be seen to permit this Court simply to tinker with the sentence.
[23]CPA, s 289(1).
In the circumstances, however, we will exercise the power reserved to this Court under s 104A(5A) to direct that the sentence be amended by substituting an operational period of suspension of three years for the period of two years declared by the judge.

Ground 1: Is the sentence manifestly inadequate?

In Dinsdale,[24] Gleeson CJ and Hayne J observed:
Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than non-custodial) or because the sentence imposed is manifestly too long or too short. But to identify the type of error amounts to no more than a statement of the conclusion that has been reached.
[24]Dinsdale v The Queen (2000) 202 CLR 321, 325–6 [6].
Counsel for the DPP submitted that it was not reasonably open to the sentencing judge to impose the sentence that he did if proper weight had been given to the objective seriousness of the offending, the respondent’s moral culpability, the applicable sentencing purposes, and the respondent’s limited mitigating factors. The respondent fell to be sentenced for depraved, protracted and persistent offending against his 13 year old sister-in-law who was in his care at the time, yet the sentence imposed does not reflect the judge’s findings as to the objective gravity of the offending and the respondent’s moral culpability, and fails to give effect to prominent sentencing purposes. Counsel submitted that the offending had been devastating for the complainant, and the respondent had displayed no remorse. Further, counsel submitted that the judge must have given excess weight to the respondent’s age and ill-health,[25] and failed to give proper weight to protection of the community as required by s 6D of the Sentencing Act 1991.
[25]Counsel cited R v RLP (2009) 213 A Crim R 461, 476 [39].
The respondent’s counsel submitted that, when regard is had to the matters in mitigation, the individual sentences, orders for cumulation and the decision to wholly suspend the term of imprisonment, are readily understandable. Hence, the respondent fell to be sentenced as a 63 year old man with no prior convictions. The offending occurred 36 years ago, and the respondent had not offended during that time. There had also been an extraordinary period of delay associated with the criminal process. AK made a statement to police on 24 August 2014, but the record of interview did not take place until 17 May 2017. The respondent was not sentenced until December 2022, so that he had the charges hanging over his head for five and a half years. As a result of the delay, the respondent suffered an exacerbation of his major depressive disorder. There had also been a decline in the respondent’s physical health. Indeed, the judge found that limb 5 of Verdins[26] applied on account of both the respondent’s mental and physical health. Moreover, the judge accepted that the respondent had ‘positive’ prospects of rehabilitation and was at low risk of reoffending. Given all these matters in mitigation, counsel submitted, it is difficult to see how the individual sentences could represent any higher proportion of the applicable maximum penalty. The judge was entitled to proceed on the basis that deterrence, just punishment and denunciation could be reflected in a lengthy period of imprisonment that was wholly suspended.[27] The decision to suspend the sentence was quintessentially a matter for the judge.[28] Further, counsel submitted that even if manifest inadequacy were made out, this is a case ripe for the exercise of the residual discretion. The respondent was given the opportunity to retain his liberty, and has been in the community for a number of months. As to the complaint embodied in ground 2, this was a case where the error could easily have been rectified if the matter had been brought to the attention of the judge by the prosecution.
[26]R v Verdins (2007) 16 VR 269, 276 [32].
[27]Counsel cited DPP v Carter [1998] 1 VR 601, 607–08; and DPP v Buhagiar and Heathcote [1998] 4 VR 540, 547.
[28]Counsel cited DPP v Oversby [2004] VSCA 208, [22]; and DPP v Malikovski [2010] VSCA 130, [49].

We are not persuaded that the sentence under challenge is manifestly inadequate.
In our opinion, the individual sentences on imposed on each charge are all within the available range. Being fully cognisant of the fallacy of naïve fractions, we note that the sentences imposed on charges 1 and 2 each represent 50 per cent of the available maximum penalty; the sentence on charge 3, 45 per cent; and the sentence on charge 4, 40 per cent.
Moreover, we consider that the total effective sentence of three years’ imprisonment, arrived at through the orders made for cumulation, is within the available range. The respondent had not attracted any amelioration of sentence through a plea of guilty, and his offending had affected AK considerably, but there was much that went in mitigation.
We have noted that AK made a statement to police on 24 August 2014, but the record of interview was not conducted until almost three years later, on 17 May 2017. The respondent’s trial then did not commence until 16 November 2022; that is, some five and a half years after his first contact with police. As was observed in Schwabegger,[29] there is
a serious incongruity between the assertion that an offence is serious and that the courts must, through the sentences they impose, endeavour to limit its incidence, on the one hand, and such a leisurely progression of the criminal justice proceedings which follow its commission that literally years pass before the matter comes before the court, on the other. For a number of reasons, the investigation and prosecution of criminal conduct should be conducted as quickly as is reasonably practicable if the objectives of the system are to be attained. Additionally, a legitimate sense of unfairness can develop when the criminal justice process proceeds in what can be perceived as too leisurely a fashion.
[29]R v Schwabegger [1998] 4 VR 649, 659–60 (Vincent AJA).
And as was observed in Merrett:[30]
The relevance of delay lies rather in the effect which the lapse of time — however caused — has on the accused. Delay constitutes ‘a powerful mitigating factor.[31] In particular, it focuses attention on issues of rehabilitation and fairness. As the Court of Criminal Appeal of Western Australia said in 1983 in Duncan v R:[32]
… where, prior to sentence, there has been a lengthy process of rehabilitation and the evidence does not indicate a need to protect society from the applicant, the punitive and deterrent aspects of the sentencing process should not be allowed to prevail so as to possibly destroy the results of that rehabilitation.
… The very fact of the long delay in bringing the matter to court which led the applicant to have this matter hanging over his head for nearly four years is rightly prayed in aid on his behalf.[33]
[30]R v Merrett, Piggott and Ferrari (2007) 14 VR 392, 400 [35] (Maxwell P).
[31]R v Liang and Li (1995) 124 FLR 350 at 356 ; 82 A Crim R 39 at 45 , cited by Vincent AJA in R v Schwabegger [[1998] 4 VR 649, 659–60]; R v Cockerell (2001) 126 A Crim R 444 at 447 , [10] per Chernov JA.
[32](1983) 47 ALR 746 at 749 ; 9 A Crim R 354 at 356–7.
[33]See also R v Blanco [(1999) 106 A Crim R 303] at 306, [16]; R v MWH [2001] VSCA 196 at [18] per Callaway JA.
In the present case, more than 36 years had elapsed between the offending and trial. The respondent had not offended during those years. He had positive prospects of rehabilitation and presented a low risk of reoffending. Hence, protection of the community, given prominence by s 6D of the Sentencing Act 1991, was of very limited practical relevance. Furthermore, the respondent was aged 63, with significant mental and physical health difficulties, which were also considerably mitigating.
A sentencing judge can only impose a suspended sentence if an unsuspended sentence of imprisonment would have been appropriate in the circumstances.[34] When a judge is considering the imposition of a suspended sentence, various factors often will vie for paramountcy in the exercise of the sentencing discretion, and often factors will point in different directions. It has been recognised, however, that a suspended sentence can promote reformation, and may be imposed in the community’s interest to prevent re-offending.[35] Despite the fact that service of imprisonment is conditionally suspended, it may also be regarded as a significant punishment.[36] Moreover, even if a sentence was wholly suspended it still plays a role in general deterrence.[37] And as Batt and Buchanan JJA observed in Buhagiar:[38]
Whilst the purpose of the criminal law is to bring wrongdoers to justice for the protection of the community and whilst that protection must be borne in mind as primary and paramount, there are cases where a judge may reach the view that suspension of a sentence is appropriate, not because it would be less unpleasant for the offender, but because it may be productive of reformation, which offers the greatest protection to society: R v Davey (1980) 50 FLR 57; 2 A Crim R 254 at FLR 65; A Crim R 260-1. A suspended sentence of imprisonment is not an unconditional release or a mere exercise in leniency. Rather it is an order made in the community’s interest and generally designed to prevent re-offending: at FLR 67; A Crim R 262. In deciding whether to suspend in whole or in part a term of imprisonment a judge is deciding whether, in all the circumstances, the offender should have the benefit of a special opportunity for reform, to rebuild his own life, or to make some recompense for the wrong done, or should have the benefit of the mercy to which King CJ referred in R v Osenkowski (1982) 30 SASR 212 at 212–13, or for some other sufficient reason should have this particular avenue open to him, provided the conditions of the suspension are observed: R v P (1992) 39 FCR 276 at 285, a decision of the Full Court of the Federal Court. (The three cases cited in this paragraph all concerned Crown appeals.) ...
[34]See Sentencing Act 1991, s 27(3) (now repealed). See also DPP v Newman [1998] 1 VR 715, 717; R v Simmons [1998] 2 VR 14, 16–17.
[35]DPP v Buhagiar and Heathcote [1998] 4 VR 540, 547 (‘Buhagiar’).
[36]Elliott v Harris (No 2) (1976) 13 SASR 516, 527; R v Gillan (1991) 54 A Crim R 475, 480; R v Pulham (2000) 109 A Crim R 541.
[37]DPP (Cth) v Carter [1998] 1 VR 601.
[38]Buhagiar, 547.
Finally, we would also reject any suggestion that manifest inadequacy might flow from the fact of suspension; since, as Nettle JA observed in Oversby,[39] it
must be rare indeed that where a sentence of imprisonment is of a length that is not manifestly inadequate, but is such that it may be ordered to be suspended, an order that it be suspended operates to render it manifestly inadequate. Given the considerations to which the learned sentencing judge referred, including the respondent’s plea of guilty and his prospects of rehabilitation, and bearing in mind, as Mr Priest submitted, that community protection is best advanced by rehabilitation, I am not persuaded that the order for suspension rendered this sentence manifestly inadequate.
[39]DPP v Oversby [2004] VSCA 208, [22]. See also DPP v Malikovski [2010] VSCA 130, [49].
For these reasons, we will dismiss the DPP appeal.
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[2023] VSCA 100

1 May 2023