Hester (a pseudonym) v The King
[2023] VSCA 41
•7 March 2023
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2022 0024 |
| NATHAN HESTER (A PSEUDONYM)[1] | Appellant |
| v | |
| THE KING | Respondent |
[1]To ensure that there is no possibility of the identification of a victim of sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the appellant.
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| JUDGES: | BEACH and TAYLOR JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 28 February 2023 |
| DATE OF JUDGMENT: | 7 March 2023 |
| MEDIUM NEUTRAL CITATION: | [2023] VSCA 41 |
| JUDGMENT APPEALED FROM: | [2022] VCC 121 (Judge O’Connell) |
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CRIMINAL LAW – Sentence – Appeal – Sexual penetration of a child under 16 – Course of conduct charge – Plea of not guilty – Appellant 88 years of age at sentencing – Sentence of 6 years and 9 months, with NPP of 3 years and 9 months – Manifest excess – Whether sentence manifestly excessive – Stern sentence – Sentence not manifestly excessive – Appeal dismissed.
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| Counsel | |||
| Appellant: | Ms H Canham | ||
| Respondent: | Mr CB Boyce KC | ||
Solicitors | |||
| Appellant: | Doogue + George | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
BEACH JA
TAYLOR JA:
On 14 December 2021, following a 7-day trial in the County Court, the appellant was convicted of one charge of sexual penetration of a child under 16.[2] The charge was a course of conduct charge,[3] covering the period between 18 September 2005 and 30 November 2006. The maximum term of imprisonment for the offence of which the appellant was convicted was ten years.
[2]Contrary to s 45(1) of the Crimes Act 1958, as amended by the Crimes (Amendment) Act 2000.
[3]Within the meaning of cl 4A of sch 1 to the Criminal Procedure Act 2009.
On 15 February 2022, following a plea hearing on 4 February 2022, the appellant was sentenced to a term of imprisonment of six years and nine months, with a non-parole period of three years and nine months.[4]
[4]DPP v Hester (a pseudonym) [2023] VCC 121 (‘Sentencing Reasons’).
Pursuant to leave granted by this Court on 16 August 2022,[5] the appellant appeals against his sentence on the single ground that the sentence (including the non-parole period) is manifestly excessive.
[5]Hester (a pseudonym) v The Queen (Unreported, Court of Appeal, T Forrest JA, 16 August 2022) (‘Leave Reasons’).
Circumstances of the offending
The offending occurred between 18 September 2005 and 30 November 2006. The victim of the offending was the granddaughter of the appellant’s wife. At the time of the offending, she was aged between nine and 10, and the appellant was aged between 72 and 73.
The victim was born in the Philippines in May 1996. Prior to 2005, she resided in the Philippines with her mother and two siblings, an older brother and a younger sister. The evidence called at trial established that the appellant and his wife would regularly visit the victim and her family in the Philippines. They would typically spend three or so weeks with them on the way to holidaying in Europe, and then perhaps a week or so on the way back.
The victim gave evidence that the appellant commenced sexually abusing her when she was about six. The first occasion occurred in a hotel room. The appellant removed the victim’s clothes, and then licked her vagina for what she said ‘was not a short time’. When asked whether the appellant had licked any particular area of her vagina, she said, ‘No I guess the inside, all of it’. The victim also gave evidence that, on his visits to the Philippines, when the victim was aged between six and nine, the appellant had:
•attempted on two occasions to penetrate her vagina with his penis;
•placed the victim’s hand on his penis, before she pulled away;
•taken photographs of the victim in revealing clothing; and
•told the victim that the sexual acts which he performed on her were a secret, and that she could not tell her mother.
This evidence was led at trial to demonstrate that the appellant had a sexual interest in the victim, and a willingness to act on that interest. The sexual interest evidence related to the appellant’s visits to the Philippines, when the victim was aged between six and nine.
In September 2005, the victim, her mother and her siblings moved into the appellant’s home in Melbourne. Not long after arriving, the appellant took the victim to an en suite bathroom next to his bedroom. He made her lie down in the walk-in wardrobe connected to the bathroom. He then took off her pants and licked her vagina ‘for a while’. When asked whether this licking of her vagina differed from any of the other times that the appellant had licked her vagina in the Philippines, she replied ‘no’. When asked which part of her vagina the appellant licked, she said, ‘Like all of it’. After licking the victim’s vagina, the appellant washed his face, and then told the victim that she should ‘walk out first’.
The victim gave evidence at trial that what occurred on the first occasion occurred again at the appellant’s home. Asked how often it occurred, she said, ‘maybe once or twice every two weeks’ over a period of approximately 12 to 13 months.
Other offending
The complainant made a series of complaints in 2015 and 2016, and made a statement to police in 2017 alleging non-penetrative indecent acts by the appellant. Around the same time, the complainant’s sister made complaints against the appellant that, in 2009, when she was 13 years old, the appellant placed his hand on her thigh and moved it toward her groin, and that she moved it away.
The appellant was convicted in the Magistrates’ Court on two charges of committing an indecent act with a child. One charge related to the victim in the current matter, and the other related to her sister. At that stage, the victim of the present offending had not disclosed any penetrative conduct by the appellant. She reported the penetrative conduct the subject of this appeal to police just prior to the finalisation of the Magistrates’ Court proceedings.
The appellant was sentenced in the Magistrates’ Court to a term of imprisonment. He appealed to the County Court. On 2 May 2017, the County Court set aside the sentence of imprisonment and re-sentenced him to a three year community correction order with a condition that he perform 300 hours of unpaid community work. At that stage, the appellant was 84 years old.
Arrest and committal
The appellant was charged with the current offending in May 2018, having been interviewed about those allegations in March 2017.
A contested committal hearing took place followed by a trial which was initially listed on 25 November 2019 but could not proceed due to the unavailability of a witness. The intervention of COVID-19 meant that the trial did not commence until 6 December 2021.
Sentencing reasons
The judge summarised the appellant’s offending.[6] He noted that the victim did not report the offending to police until February 2017, saying that this delay was explained by the appellant having told the victim on a number of occasions that her mother would not understand what was going on between the two of them.[7] The judge noted that, during the trial, the appellant gave sworn evidence denying all of the victim’s allegations.[8]
[6]Sentencing Reasons [4]–[16].
[7]Ibid [18].
[8]Ibid [19].
The judge said that the victim’s victim impact statement made difficult reading, and was ‘a study in just how pervasive and enduring the damage from sexual abuse can be’.[9] The judge observed that the victim documented how her childhood was taken from her by the appellant, and how she expects to remain in therapy for much of her adult life as a result of the offending. Additionally, the judge noted the victim impact statement provided by the victim’s mother, in which she blames herself for trusting the appellant and agreeing to bring the victim into the appellant’s home when they came to Australia.[10] The judge said that the impact of the appellant’s offending was an important consideration to be taken into account in the formulation of the sentence to be imposed on the appellant.[11]
[9]Ibid [20].
[10]Ibid [22].
[11]Ibid [23].
Under the heading, ‘Personal History’, the judge observed that:
•The appellant was 88 years old at the time of sentencing.
•He grew up in Holland and was one of 10 children raised in poverty.
•His schooling was interrupted by World War II and was rudimentary. He left school at 14 and completed a printing apprenticeship which was interrupted by a bout of tuberculosis.
•He met his first wife when aged about 20. They emigrated to Australia. Eventually, he started his own successful printing business. He sold it in 1995 at a time when he was employing 35 people.
•He met his current wife in the Philippines in 1983. They married in 1990 and she came to live in Australia.
•He has two relevant subsequent convictions: (a) knowingly possessing child pornography, for which he was convicted at Moorabbin Magistrates’ Court in May 2014 and sentenced to 3 months’ imprisonment, which was suspended for 12 months; and (b) the two charges of committing an indecent act with a child, to which we have already referred.
•Four character references were tendered on the plea, which the judge said he had taken into account.
•A Patient Health Summary, dated 7 December 2021, from the appellant’s general practitioner revealed that the appellant suffered from ‘significant health concerns with respect to cardiovascular conditions, respiratory problems and spinal deterioration’.[12]
[12]Ibid [24]–[36].
After summarising the defence and prosecution submissions,[13] the judge said that the appellant’s offending was ‘an unquestionably serious example of the offence of sexual penetration of a child under the age of 16’.[14] The judge observed the offending encompassed the appellant engaging in a course of conduct in which he sexually abused a nine or 10 year old girl, once or twice every two weeks for a 12 to 13 month period (October/November 2005 to November 2006).[15] His Honour said that there were a number of features of the appellant’s offending which, when taken together, supported the conclusion that it was a serious example of the offence of sexual penetration of a child under the age of 16. His Honour identified those features as follows:
[13]Ibid [37]–[42].
[14]Ibid [43].
[15]Ibid [43]–[44].
• This is not a single instance of the commission of this offence, but rather a course of conduct in which you abused your victim reasonably frequently;
• The complainant was very young, being 9 to 10 years of age;
• You engaged in this conduct over a significant period of time — i.e. a year or more;
• The offending was not an isolated series of acts, having regard to the victim’s evidence about you sexually abusing her in the Philippines, and, to a limited extent, subsequent to November 2006;
• The offending involves a flagrant and consistent breach of the trust placed in you by the complainant and her mother;
• The offending involves an abuse of the power you occupied in the family relationship;
• The manner in which you carried out this offending shows that you bear a high degree of moral culpability;
• The impact your offending has had on the victim has been profound and persists to this day; and
• You have shown no remorse for what you have done.[16]
[16]Ibid [45].
Subsequently, the judge described the appellant’s offending as ‘a very serious example of the commission of this offence’.[17]
[17]Ibid [46].
The judge noted that it was fortunate from the appellant’s perspective that the maximum penalty applicable to the offending was just ten years’ imprisonment. The judge observed that, had the appellant been nine years of age throughout the period of offending, the maximum penalty would have been 25 years.[18] He also observed that if the offence had been committed after July 2017, the appellant would have been liable to a maximum penalty of 25 years, in circumstances where the prescribed standard sentence would have been ten years.[19]
[18]See s 45(2)(c) of the Crimes Act as in force at the time of the offending.
[19]Sentencing Reasons [47], noting that s 49A of the Crimes Act 1958 now provides that the maximum penalty for sexually penetrating a child under the age of 12 years is 25 years, with a standard sentence of 10 years.
The judge noted that he had been provided with a number of previous decisions for the purpose of taking into account current sentencing practice. He said that he found those decisions to be of very limited assistance, once allowance was made for the variation in maximum penalties and the fact that many of those decisions involved pleas of guilty.[20] The judge concluded his reasons for sentence by saying:
You committed this offence when you were 72 or 73 years of age. You are now 88 years of age. You have relevant subsequent convictions. Were it not for your age, those subsequent convictions would tell against a submission to the effect that you have good prospects for rehabilitation. However, I accept to some reasonable extent [the appellant’s plea counsel’s] submission that your advanced age and precarious health render it less likely that you will re-offend.
I will take into account the delay pending trial which I accept has been punitive and constitutes a form of punishment in itself for your offending. I also accept that your circumstances render imprisonment more burdensome for you, particularly given the current restrictive prison regime and your vulnerability were you to catch COVID-19. I see those matters as particularly relevant to the fixing of an appropriate non-parole period.
That said, your high moral culpability for this offending points to the need to emphasise the sentencing purposes of just punishment and denunciation. Moreover, the protection of children from sexual abuse, particularly from older family members who would use their position to manipulate and exploit a vulnerable child as you did here, is of fundamental concern to sentencing courts. That is an important additional purpose for imposing this sentence.
In committing this offence you engaged in a wilful and arrogant breach of trust that has had traumatic consequences. Although I am constrained by the 10-year maximum penalty, the sentence that I must now impose must nevertheless reflect the totality of your conduct, involving as it does serious offending which occurred reasonably frequently over a period of a year or more.[21]
[20]Sentencing Reasons [48].
[21]Ibid [49]–[52].
Appellant’s submissions
The appellant commenced his submissions by noting that he received a sentence of 6 years and 9 months, with a non-parole period of 3 years and 9 months, on a charge carrying a maximum penalty of 10 years. He submitted that the sentence was outside the range that was reasonably open to the sentencing judge, by reference in particular to:
•his age and health (and the ‘rigours of imprisonment for any person of like age and health’); and
•the delay of nearly five years between arrest and sentencing (in circumstances where he had already been involved in criminal proceedings in respect of a sexual offence against the victim, and was undergoing punishment for that offence while awaiting trial).
The appellant submitted that, notwithstanding the seriousness of his offending, care needed to be taken by the sentencing judge not to expose the appellant to the higher maximum penalties applicable under ss 45(2)(a) and (b) – being 25 years and 15 years respectively if the victim was under the age of 10 or if the victim was under the care, supervision or authority of the offender. The appellant submitted that care also needed to be taken to ensure that he was not sentenced for offending over a longer period than 12 to 13 months, based on the victim’s evidence of sexual abuse occurring in the Philippines and, to a limited extent, subsequent to November 2006.
The appellant contended that, notwithstanding the seriousness of his offending, and the sentencing judge’s acknowledgment of the mitigatory considerations put on the appellant’s behalf on the plea, the sentencing discretion miscarried. He submitted that it could be inferred that too little weight was given to his age and ill-health, and the punitive effect of delay in his case.
The delay relied upon by the appellant was the delay between March 2017 (when he was interviewed, after the victim disclosed the more serious offending upon which the appellant was tried in the County Court) and February 2022 (when he was sentenced for this offending). He submitted that, notwithstanding that the victim had made a statement to police about the appellant’s more serious offending, while he was still facing charges in the Magistrates’ Court, the Magistrates’ Court proceeding continued and no steps were taken to consolidate matters. The appellant referred to the anxiety he spent, during ‘the majority of his eighties’, facing the stress and uncertainty of unresolved criminal charges relating to the victim. It was submitted that this represented a very significant degree of extra-curial punishment – particularly having regard to his age. It was submitted that the effect of the delay in these circumstances was that, the more time that passed, the greater the likelihood became that the appellant would receive ‘a virtual life sentence’.
While the appellant relied upon the punitive effect of the delay for the whole of the period between March 2017 and February 2022, he submitted specifically that the delay between his police interview on 20 March 2017, and the filing of the charge on 15 May 2018, was inordinate and had not been explained. He also referred to the ‘special stress’ resulting from the ‘jeopardy’ of consecutive prosecutions, and the fact that he was serving a CCO with a condition requiring hundreds of hours of community work, while his trial for the present offence was pending. It was submitted that all of this was ‘extremely relevant to the punitive effect of the delay between March 2017 and February 2022’.
In submitting that the appellant’s age required a significant moderation in the sentence imposed, the appellant referred to a number of decisions, including R v Hunter,[22] R v Bazley,[23] R v RLP[24] and R v Iles.[25] Specifically, the appellant submitted that the significance of old age as a mitigating factor is that ‘general deterrence may be required to surrender some ground to the need to exercise mercy to take account of the possibility that the offender may not live to be released’.[26] The appellant noted the sentencing judge’s acceptance that, given his advanced age, he was unlikely to reoffend. It was submitted that it followed that specific deterrence and community protection were not factors of significance in the exercise of the sentencing discretion. The appellant submitted, however, that the sentence imposed was ‘more congruent with what one might expect if specific deterrence and community protection were important considerations’.
[22](1984) 36 SASR 101.
[23](1993) 65 A Crim R 154.
[24](2009) 213 A Crim R 461; [2009] VSCA 271.
[25][2009] VSCA 197 (Neave and Redlich JJA and Lasry AJA) (‘Iles’).
[26]Iles [2009] VSCA 197, [33] (Redlich JA).
In contending that the judge gave insufficient weight to the appellant’s age and the prospect that he might not live to be released, the appellant noted that, while the judge recorded that part of the appellant’s submission on the plea,[27] he did not specifically address that issue in the course of his consideration of the appropriate sentence.[28] The judge merely referred to the appellant’s age, his acceptance of the proposition that the appellant was less likely to reoffend because of his advanced age, and that the appellant’s circumstances would render imprisonment more burdensome.[29] It was submitted that the lack of specific reference by his Honour at Sentencing Reasons [49] – [50] supported, if not led to, the conclusion that his Honour had given insufficient weight to the significant matter of the prospect of the appellant dying in custody.
[27]Sentencing Reasons, [37].
[28]Ibid, [49]-[50].
[29]Ibid.
Respondent’s submissions
The respondent submitted that the sentence imposed upon the appellant was not manifestly excessive. It observed that there was no plea of guilty and the appellant could not establish the existence of any remorse. The respondent also noted that the offence was a course of conduct offence, submitting that ‘it perhaps ought not be surprising that sentences imposed for this form of offending will often constitute quite a large portion of [the] maximum penalty’.
The respondent submitted that the appellant bore a high degree of moral culpability. It noted that the age gap between the offender and the victim was a wide one; the appellant was the victim’s step-grandfather ‘and thus not only did he abuse the power he held over [the victim], he also owed [the victim] a duty of trust’.
Ultimately, the respondent submitted that the penalty imposed upon the appellant ‘sits comfortably within the range that was reasonably open’.
Consideration
Section 5(2F) of the Sentencing Act 1991 requires a court, sentencing an offender for the incidents of the commission of an offence included in a course of conduct charge, to impose a sentence ‘that reflects the totality of the offending that constitutes the course of conduct’. The section, however, prohibits the court from imposing a sentence that exceeds the maximum penalty prescribed for the offence if charged as a single offence. In Poursanidis v The Queen,[30] Weinberg JA (with whom Priest JA agreed) said that sentencing ‘this new form of offending should be governed by orthodox sentencing principles’.[31] His Honour went on to say that this meant that ‘close attention must be given to the maximum sentence available for the offence charged’, and that the maximum remained a ‘yardstick’ by which the gravity of the offending was to be assessed, even though the offence might have been charged in ‘course of conduct’ terms.[32]
[30](2016) 50 VR 681; [2016] VSCA 164.
[31]Ibid, 683 [11].
[32]Ibid.
As has been said many times before, the ground of manifest excess will only succeed if it can be shown that the sentence imposed was wholly outside the range of sentencing options available to the sentencing judge.[33] That is, it must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he or she did, if proper weight had been given to all of the relevant circumstances of the offending and the offender. As has also been said many times, this is a stringent requirement, difficult to satisfy.[34]
[33]Clarkson v The Queen (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157.
[34]Ibid.
The offending in this case was very serious. The appellant did not seek to gainsay that proposition. There were, however, three significant matters in mitigation: the appellant’s advanced age; his health; and the delay between March 2017 and February 2022, which was not of the appellant’s making. Of these, the most significant is the appellant’s advanced age; making the burden of imprisonment greater than it would otherwise be, and giving rise to the possibility that the appellant will spend the balance of his life, and die, in custody.
In granting leave to appeal, T Forrest JA said that there was no doubt that the sentence imposed by the judge was stern.[35] We do not disagree. It is the appellant’s advanced age which, when synthesised with all of the other circumstances of the appellant and the offending, make the sentence a stern one — although we note that the non-parole period is relatively short when compared to the head sentence. Absent the appellant’s advanced age, we would not describe the sentence imposed by the judge, for the appellant’s very serious offending, as stern.
[35]Leave Reasons, [18].
That said, we are not persuaded that the sentence imposed by the judge was wholly outside the permissible range of sentencing options open to his Honour. Moreover, we see no basis upon which it might be concluded that his Honour failed to give sufficient weight to the appellant’s advanced age and the prospect that he might die in custody. In a comprehensive and careful set of reasons, his Honour articulated and evaluated the circumstances of the offending and the circumstances personal to the appellant. While the sentence is, as we have said, a stern one, it is to be remembered that it was imposed following a trial. The appellant was perfectly entitled to run his trial, in which it was put to the victim in cross-examination that she had ‘made this offending up’.[36] In doing so, however, he lost any entitlement he may otherwise have had to the very significant mitigation he might have received had he taken a different course, and pleaded guilty to the offence.
[36]Sentencing Reasons, [21].
Conclusion
The appeal will be dismissed.
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