James Cotton (a pseudonym)[1] v The Queen
[2015] VSCA 103
•18 May 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2014 0051
| JAMES COTTON (A PSEUDONYM)[1] | Appellant |
| v | |
| THE QUEEN | Respondent |
[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the appellant.
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| JUDGES: | WEINBERG and KYROU JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 29 April 2015 |
| DATE OF JUDGMENT: | 18 May 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 103 |
| JUDGMENT APPEALED FROM: | DPP v [Cotton] (Unreported, County Court of Victoria, Judge Wilmoth, 28 February 2014) |
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CRIMINAL LAW — Sentence — Plea of not guilty — Conviction on 8 charges of incest and 2 charges of indecent act with a child under 16 years of age — Victim was appellant’s stepdaughter — Offending occurred over 12 months while victim aged 13–14 — Offending resulted in victim suffering a severe psychiatric condition — Last incest offence occurred while victim on weekend leave from adolescent psychiatric facility — Total effective sentence of 13 years with non-parole period of 10 years — Whether sentence manifestly excessive — Current sentencing practice — Review of sentencing statistics and comparable cases — Whether offending was in the worst category of incest offences — Principle of totality — Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr P J Smallwood | Victoria Legal Aid |
| Mr J R Cass | ||
| For the Respondent | Ms S Borg | Ms V Anscombe, Acting Solicitor for Public Prosecutions |
WEINBERG JA
KYROU JA:
Introduction and summary
On 29 November 2013, after a trial lasting 10 days, the appellant (now aged 40) was found guilty of eight charges of incest and two charges of committing an indecent act with a child under 16. Following a plea, he was sentenced on 28 February 2014 as follows:
Charge on Indictment Offence Maximum Sentence Cumulation 1 Incest
[Crimes Act 1958 s 44 (1)]25 years
6 years 10 months 2 Indecent act with a child under 16 [Crimes Act 1958 s 47(1)] 10 years
1 year 1 month 3 Incest 25 years 6 years 10 months 4 Indecent act with a child under 16 10 years 1 year 1 month 5 Incest 25 years 6 years 10 months 6 Incest 25 years 6 years 10 months 7 Incest 25 years 6 years 10 months 8 Incest 25 years 6 years 10 months 9 Incest 25 years 6 years 10 months 10 Incest 25 years 7 years Base Total Effective Sentence: 13 years Non-Parole Period: 10 years Pre-sentence Detention Declared: 91 days Other orders: Sentenced as a serious sexual offender in relation to charges 3-10 pursuant to s 6F, Sentencing Act 1991; sex offender registration order pursuant to s 11, Sex Offenders Registration Act 2004 (appellant to report for the remainder of his life pursuant to s 34); forensic sample order.
On 13 August 2014, Whelan JA refused leave to appeal. The appellant elected to renew his sole ground of appeal. On 14 November 2014, Redlich and Priest JJA granted the appellant leave to appeal and leave to amend that ground of appeal. The amended ground of appeal is as follows:
The individual sentences imposed on charges 1, 3, 5, 6, 7, 8, 9 and 10, the orders for cumulation made with respect to the sentences imposed on charges 1, 3, 5, 6, 7, 8 and 9, the ‘total effective sentence’ and the non-parole period fixed are each manifestly excessive given:
(a) the absence of certain otherwise aggravating features;
(b) the principle of totality;
(c) current sentencing practices.
For reasons that follow, the appeal will be dismissed.
Circumstances of the offending
The appellant, who was born and raised in Victoria, met the complainant’s mother, Vanessa Jones (a pseudonym), in Ireland in 2006. He began living with Ms Jones and the complainant from that time. In 2008, the appellant and Ms Jones had a son together. In September 2010, the family moved to Victoria.
In her VARE,[2] the complainant described offending by the appellant in Ireland while Ms Jones was not at home. Of course, this offending was not the subject of any charge. The complainant’s evidence about the uncharged offending may be summarised as follows:
[2]Video and Audio Recorded Evidence.
(a) The offending began in 2006, soon after the appellant moved into the complainant’s home. She was then nine years old.
(b) The appellant was initially ‘all touchy feely’. He then started putting his hand on her leg and felt her up and down. He said that it was normal and she believed him.
(c) On one occasion, while she was on the sofa, the appellant put his hand up her top and felt her breasts. She tried to move away but he grabbed her back. He said it was ‘just a bit of fun … like a game’ and that she should not tell anyone because it was like a secret.
(d) On another occasion, while she was asleep in her bed, the appellant pulled the covers down and lifted her top. She tried to move away but he put her wrists down and then kissed and felt her breasts. He then started pulling her trousers down. She tried to get away but he held her down harder so that she could not move. He touched her vagina and penetrated her with his fingers. He said it was ‘just for fun.’ When she told him that she did not like it, he said that she could not tell anyone because ‘there would just be more problems and nobody would understand’ and that her mother would be hurt.
(e) On another occasion, the appellant called her into the sitting room. She went in and sat down. He sat close to her and asked her to remove her top. When she refused, he took it off himself and then pushed her down on the sofa. He removed her trousers, touched her breasts and vagina and kissed her down her body. He kissed her vagina and penetrated her with his fingers. She was trying to push him off but could not do so because he held her down by her wrists.
(f) On a further occasion, the appellant came into her room and said he wanted to have some fun again, to play a game. He told her to lie down. When she did not do so, he pushed her down. He took off her top and trousers and felt her breasts, buttocks and vagina. He kissed her vagina and penetrated her with his fingers.
(g) When the complainant was asked about the frequency of the incidents, she said ‘a few times’ and ‘[t]here wasn’t, like, much times’ over a few years. She said that if she tried to move, the appellant held her down by her wrists and it hurt.
The charged offending occurred from September or October 2010 until September 2011 in Ms Jones’s absence from home. The offending arose out of five incidents which are discussed below.
Incident 1 – Bathroom (charges 1 and 2): On an occasion between 15 September 2010 and 3 October 2010, the complainant (aged 13) was in the bathroom. She had just stepped out of the bath and was wrapped in a towel. The appellant entered the bathroom, took the towel off her and began touching her buttocks and kissing her neck. He touched her vagina with his fingers (charge 2) and inserted his penis into her anus while feeling her breasts (charge 1). During this incident, she hit her head causing her to injure her scalp.
Incident 2 – Sofa (charges 3, 4 and 5): On an occasion between 1 November 2010 and 14 August 2011, the complainant (aged between 13 and 14) was lying on the sofa wearing her pyjamas. The appellant told her that he was bored and that he wanted to have some fun. He told her to take off her clothes and he felt her body (beginning with her breasts before moving down to her vagina). He inserted his finger into her vagina (charge 3), took her hand and placed it on his penis while he masturbated (charge 4) and inserted his penis into her vagina (charge 5).
Incident 3 – After school (charges 6 and 7): On an occasion in February 2011, the complainant (aged 14) came home from school. She was undressing in her bedroom when the appellant entered the room and told her to take off the rest of her clothes. He pushed her on to her bed, kissed and felt her breasts and rubbed her buttocks and vagina. He left and returned to the bedroom with a vibrator, which he placed on, and then inserted into, her vagina (charge 6). He put a condom on his penis and inserted it into her vagina (charge 7). She asked him to stop and tried to move away but he held her down. When he stopped, she noticed blood on the vibrator and bed sheets. He left the bedroom, taking the bed sheets with him to the laundry.
Incident 4 – Bedroom (charges 8 and 9): On an occasion between March 2011 and August 2011, the complainant (aged 14) was in bed when the appellant entered her bedroom with a vibrator. He placed his hands inside her underwear and felt her vagina before penetrating her vagina with the vibrator. He placed his penis in her anus. He withdrew his penis from her anus and re-inserted the vibrator into her vagina (charge 8). While the vibrator remained in her vagina, he re-inserted his penis into her anus (charge 9).
Incident 5 – On leave from psychiatric unit (charge 10): In August 2011, the complainant (aged 14) was admitted to an adolescent psychiatric unit as an in-patient and remained there for approximately three weeks. On an occasion between 3 and 5 September 2011, she was on weekend leave from the unit and was lying on the couch at the family home. The appellant approached her and told her they should have some fun because nobody was around. He held her by her hips, felt her breasts, put his hand down her trousers and inserted his fingers into her vagina (charge 10). During this incident she injured her back, resulting in a bruise. This bruise was discovered by nursing staff at the unit, resulting in the complainant disclosing the appellant’s offending to a nurse, and Ms Jones, on 6 September 2011.
Ms Jones put the allegations to the appellant and he denied them. A few days later, he left the family home.
The appellant was arrested at work in September 2011. He pleaded not guilty, but was convicted of all charges.
Plea in mitigation
The Crown’s position on the plea was that there was a causal relationship between the appellant’s offending and the complainant’s psychiatric condition. As will appear below, Ms Jones’s victim impact statement alleged causation. While the appellant did not expressly concede any such causal link, he did not challenge the Crown’s contention, and thus can be taken to have accepted what, in any event, common sense would suggest.
The Crown referred to the appellant’s grooming behaviour and manipulation, and his coercion during the period in which the offending took place. In respect of grooming behaviour, the Crown referred to evidence that the appellant characterised his behaviour to the complainant as normal or play. The appellant was also said to have engaged in coercive behaviour by making threats to the effect that the complainant should not tell her mother as she or her brother would be hurt. It was also said that the appellant had asserted that the complainant would be disbelieved.
At trial, Ms Jones gave evidence that the complainant was a happy child while they lived in Ireland, although she had received some counselling to help her cope with the fact that Ms Jones did not know who the complainant’s father was. Ms Jones stated that the complainant was unhappy at the prospect of leaving their home in Ireland and emigrating to Australia, and was extremely upset at the time of departure. Ms Jones observed that the complainant seemed to be unhappy or depressed early in 2011. The complainant’s condition gradually deteriorated. She refused to go to school and began to neglect herself. She became reclusive and stopped communicating. She stayed in her room with the blinds drawn and would not eat. She was medicated for depression from about June of that year.
On the plea, Ms Jones read her victim impact statement in which she described the effect of the offending on the complainant as follows:
[The complainant] lives in a prison of fear and terror. [The appellant] has robbed her of her life, she struggles just to exist, on a daily basis. She is completely dependent on me, some/most days she can’t leave my side. She cannot be left alone at any point. …
My goal for my Daughter at this moment in time is for her to be able to walk to the shop alone. She is 17. It took me almost a year to get her to feel safe enough to walk to our mailbox in our garden.
[The complainant] was one of the brightest students in her school, very active, lots of Clubs and friends, loved travelling, loved her independence, loved life!!
Now, she struggles to get out of bed. In fact most nights she sleeps on the floor as she is too afraid to get into a bed.
Even to wake her is traumatic as she wakes terrified as soon as she hears any noise or movement.
She is such a beautiful intelligent person but is completely stagnant in life as terror rules her.
She is so emotionally scarred not only from what he has done but from her 20 + attempts of suicide to try to escape from her memories. I have watched my daughter claw into her own skin because she could feel his touch, her arms and legs are so badly scarred from self harming. She has whore bitch slut cut/scarred on her thighs because that’s what she thinks of herself.
I have watched her pull her hair out, cut her wrists. I have watched her getting chained to beds to keep her safe until she got forceably injected to calm her down because her terror was so bad.
I have taken her off Bridges, train tracks taken cords from around her neck when she tried [to] use all the above to kill herself. I’ve held her hand when she was on a life support machine from an overdose.
I look at her eyes everyday and see such pain sorrow and fear, and wonder, will she ever recover? … I don’t know because at the moment some 2 years after this was reported it doesn’t look likely. He has taken her past, her present and her future away.
At the time of the plea hearing, the appellant was 39 years old. He had no prior convictions.
Counsel for the appellant described his upbringing as conventional and happy, and did not suggest that there was anything in his background which would explain or contribute to his offending.
The appellant completed his secondary education and commenced a course in accounting at a TAFE, which he left after one year. He held various jobs, and at the time that he met Ms Jones he was working in the IT industry. The appellant’s last job was in the superannuation maintenance department of a company. After his arrest at work, his employment was terminated and he had not worked since.
The appellant was married between 2002 and 2008. He and his ex-wife had three children together who, at the time of the plea hearing, were aged between 9 and 14. The appellant had a very close relationship with the children and evidence was referred to, although not tendered, in the form of letters from the children to him that were said to reflect the strong affection they had for him and their devastation at being unable to live with him.
The appellant’s ex-wife gave the following evidence. The appellant had maintained contact with his children, including while he was overseas. During that time, he would fly back to Australia to attend his children’s important events, such as their confirmation. When he returned to Australia permanently, he had responsibility for the children nearly every weekend. She had not witnessed any behaviour that was untoward with respect to her children. The appellant was kind and always offered to help out.
The appellant’s father gave the following evidence. The appellant’s children with his ex-wife ‘absolutely adored him’. He had never seen the appellant behave inappropriately. He described the appellant’s character as ‘laughing, friendly, active, sentimental’. When the appellant was, eventually, released from custody, he would be ‘completely welcomed back into the family’.
Further supportive character references were tendered by the appellant’s family and friends.
During the time that the appellant had been in custody, he had received prison visits from his family, although not from his children, with whom he had maintained telephone contact.
It was submitted that the appellant no longer had any contact with his son from his relationship with Ms Jones, but that was said to be because of Family Court proceedings.
Counsel for the appellant submitted, on behalf of his client, that he now suffered from depression. This was said to be related to his having been arrested, and charged, for his offending. It was submitted that he had been left devastated by the prospect of being isolated from his family and not being a part of his children’s upbringing.
Sentencing remarks
The judge accepted that the appellant was not be punished for the uncharged offending. Nonetheless, the judge referred to it as background to the offences charged, and to show that the abuse had begun when the complainant was only nine years old.
After referring to Ms Jones’s victim impact statement, the judge said that the effects of the appellant’s behaviour had been ‘disastrous, even tragic’. The judge remarked that it was seldom that one would hear of such serious consequences as were caused to the complainant in this case.
The judge accepted that the appellant had no history of substance abuse or behavioural issues and that he would find it hard to endure the burden of isolation from his family.
The judge remarked that an assessment of the appellant’s prospects of rehabilitation was a matter of conjecture because of his continued denial of the charges, and the consequent absence of any remorse. She noted that the appellant’s history as an otherwise law-abiding citizen with strong family support, and a good employment record, were the best indicators of hope for his rehabilitation, but stated that nothing more than that could be said with any certainty.
The judge observed that the offending, being sexual acts forced upon a young girl who had been left in the appellant’s care when her mother went to work, was regarded as abhorrent by the community, and a substantial sentence was warranted. General deterrence was stated to be one of the foremost sentencing principles in cases such as this.
The judge stated that the sentence was affected by several aggravating factors including:
(h) the use of a vibrator, which in the case of a young girl was a degrading and humiliating experience;
(i) the gross breach of trust arising from the sexual abuse of a stepdaughter;
(j) the assurance of the complainant’s silence by the suggestion that her mother would be hurt to know about the offending;
(k) the fact that some of the penile penetrations were unprotected, notwithstanding that the risk of pregnancy was not present (the appellant having had a vasectomy in 2009), due to the risk of transmission of sexually transmitted diseases;
(l) the considerable age difference between the appellant and the complainant;
(m) the grooming and coercive strategies employed by the appellant to persuade the complainant to cooperate with him, which included the use of force;[3] and
(n) the fact that the last incident occurred while the complainant was on leave from the adolescent psychiatric unit. This was said to demonstrate that the appellant’s sexual gratification had taken precedence over the complainant’s need for care and protection in ‘blatant disregard of the fact that she was receiving treatment for a psychiatric illness serious enough for her extended admission to hospital.’
[3]In describing the appellant’s charged offending, the judge noted that, on some occasions, he had used some degree of force upon the complainant in effecting penetration and that, in the course of the last incident, he had caused her to bruise her back.
The judge sentenced the appellant as a serious sexual offender on charges 3 to 10. She noted that the Crown had not sought a disproportionate sentence, and accepted that the need to protect the community could be addressed by a term of imprisonment within the appropriate range, with due regard to totality and the need to avoid a crushing sentence.
Parties’ submissions
Current sentencing practice
The appellant relied on the Sentencing Advisory Council’s Sentencing Snapshot 134 which disclosed the following for the period from 2006–07 until 2010–11:
(o) During the relevant period, 172 offenders were sentenced for incest.
(p) In respect of principal sentences for incest, terms of imprisonment ranged from 3 months to 12 years (10 years after adjusting for appeals). The median length of imprisonment was 4 years and 5 months. The most common length of imprisonment was 3 years to less than 4 years.
(q) During the relevant period, 163 offenders were given a total effective sentence for multiple charges of incest. Of them, 20 received a period greater than or equal to the appellant, and 143 received a lesser period. The length of the total effective sentences ranged from 3 months to 22 years and 5 months. The median total effective length of imprisonment was 7 years.
(r) Of the 163 offenders for whom a total effective sentence of imprisonment was ordered, 161 were given a non-parole period ranging from 1 year and 6 months to 18 years. The median length of the non-parole period was 4 years and 6 months. After adjusting for appeals, the median non-parole period decreased slightly to 4 years and 4 months. Fourteen offenders received a non-parole period greater than or equal to the appellant and 147 offenders received a lesser non-parole period.
The appellant cited the following cases as indicative of current sentencing practice relevant to his offending:
(s) ISJ v The Queen,[4] MA v The Queen,[5] BSJ v The Queen,[6] HRA v The Queen,[7] DLJ v The Queen,[8] DPP v HPW,[9] FD v The Queen[10] and GJW v The Queen;[11]
(t) the cases cited in Appendix B of Director of Public Prosecutions v DJ;[12] and
(u) the cases considered in Reid v The Queen.[13]
[4](2012) 38 VR 23.
[5][2012] VSCA 214 (‘MA’).
[6](2012) 35 VR 475 (‘BSJ’).
[7][2012] VSCA 88.
[8][2011] VSCA 389.
[9][2011] VSCA 88.
[10][2011] VSCA 8 (‘FD’).
[11][2010] VSCA 193 (‘GJW’).
[12](2011) 211 A Crim R 367. The appendix listed a large number of cases, some of which were included under the headings, ‘Force/violence/ threats involved’, ‘Pain or lack of consent (but no violence)’ and ‘No force/violence’.
[13][2014] VSCA 145 (‘Reid’). Reid considered MG v The Queen (2010) 29 VR 305; RSJ v The Queen [2012] VSCA 148; DPP v GJL (2004) 7 VR 366; DPP v OJA (2007) 172 A Crim R 181; R v Bellerby [2009] VSCA 59; DP v The Queen [2011] VSCA 1; FD [2011] VSCA 8; PDI v The Queen (2011) 216 A Crim R 577 (‘PDI’); LDF v The Queen [2011] VSCA 237; IRJ v The Queen [2011] VSCA 376; DPP v Jones [2013] VSCA 330.
The appellant prepared a table of the cases cited at [36(a)] above, which is attached to these reasons as Appendix A. The appellant noted that, even though many of those cases involved offending over a significantly longer period than that in which he had engaged — often with representative counts or rolled-up charges and sometimes with more than one victim — none of the offenders in those cases received a total effective sentence or a non-parole period greater than or equal to his.
Attached to these reasons as Appendix B is a table of comparable cases prepared by Whelan JA for the purpose of considering the appellant’s application for leave to appeal.[14]
[14]We have deleted the cases of GJW [2010] VSCA 193 and BSJ (2012) 35 VR 475 from Appendix B as they are included in Appendix A.
The appellant relied on PDI v The Queen[15] as an example of a case falling within the worst category of incest offending.[16] That case is discussed at [60] to [ 63] below. The appellant noted that the non-parole period imposed in PDI was only 6 months greater than that which he received.
[15](2011) 216 A Crim R 577.
[16]See PDI (2011) 216 A Crim R 577, 594–5 [84], [87].
The appellant relied on the sentencing statistics and the prior cases to submit that the individual sentences, total effective sentence and non-parole period imposed on him on the incest charges were near the highest end in circumstances where his offending was not in the ‘worse case’ category. He contended that these sentences were out of step with current sentencing practice, and thus manifestly excessive.
The Crown accepted that the sentence imposed on the appellant was ‘stern’. However, it submitted that the statistics and comparable cases did not suggest that the sentence was one which was wholly outside the range of sentencing options reasonably available.[17] Nor was the sentence unjustifiably high[18] or out of kilter with current sentencing practice.[19] In support of that submission, the Crown relied on the aggravating features of the appellant’s conduct, and particularly its catastrophic effects on the complainant, which were said to give rise to the expectation that his sentence would fall at the upper end of the relevant sentencing range. The Crown referred to a further aggravating feature, which it contended was rarely found in comparable cases, namely the appellant’s continuation of the sexual abuse after the profound psychological harm it had caused had become apparent to him.
[17]DPP v Karazisis (2010) 31 VR 634, 662–3 [127].
[18]Ashdown v The Queen (2011) 37 VR 341, 347 [13].
[19]FD [2011] VSCA 8, [34].
Principle of totality
The appellant submitted that the fact that the judge imposed the same individual sentence and cumulation on each of the incest charges except charge 10 — which was treated as the base sentence — indicated the presence of sentencing error for two reasons. First, the judge did not differentiate between the relative gravity of the facts giving rise to each of the charges. Thus it was erroneous, so it was said, to impose the same sentence for charge 3 as for charges involving either unprotected penile penetration or the use of a vibrator. This was because the judge had identified those factors as aggravating circumstances, and neither was relevant to charge 3. Secondly, the orders for cumulation did not account for the fact that charges 3 and 5, charges 6 and 7 and charges 8 and 9 were part of single episodes of offending and thus involved overlapping criminality.
The appellant also submitted that the degree of cumulation of 10 months for each of the incest charges was manifestly excessive in the light of the totality principle, and the court’s predisposition towards avoiding a crushing sentence.
The appellant also sought to impugn the non-parole period on the basis that it represented almost 77 per cent of the total effective sentence. This ratio was said to invite appellate scrutiny in the light of the fact that the appellant did not have prior convictions, and the judge did not explain why it was necessary to impose such a relatively long non-parole period.
The Crown conceded that some of the aggravating features of the offending identified by the judge did not result in any greater sentence being passed on the charges to which they applied. However, the Crown contended that it did not follow that the judge had erred in imposing the same sentence for all of the incest charges, except charge 10. In support of this submission, the Crown relied upon the following:
(v) Many of the aggravating features of the offending were common to each charge of incest, including the gross breach of trust, the grooming and coercive strategies, the difference in age and the ruinous effect of the offending on the complainant. The decline in the complainant’s mental health took place over time, and was clearly the product of the cumulative effect of all of the appellant’s offending.
(w) The judge was entitled to take a ‘broad brush’ approach in sentencing the appellant on the basis that the multiple occasions of offending were sufficiently similar.[20]
(x) No distinction could be drawn between offences involving digital and penile penetration.[21]
(y) The judge could be interpreted as taking the approach that the only aggravating feature of such singular significance as to warrant a heavier sentence was the appellant’s ‘blatant disregard of the fact that [the complainant] was receiving treatment for a psychiatric illness serious enough for her extended admission to hospital’. This aggravating feature was only present in charge 10, for which the appellant received a sentence of 7 years.
[20]In support of this proposition, the Crown relied on BSJ (2012) 35 VR 475, 483 [43].
[21]In support of this proposition, the Crown relied on R v Brown (2002) 5 VR 463, 478 [57].
In any case, the Crown contended that the appellant’s submissions on this point, which relied on a comparison between the sentences imposed on different charges, amounted to a structural argument of the kind discouraged by the Court.[22] As the individual sentences were within range, so it was said, there was no basis to disturb them.
[22]In support of this proposition, the Crown relied on R v Albanus [2004] VSCA 236, [9]; Jailani v The Queen [2010] VSCA 276, [14]–[17].
In respect of the orders for cumulation, the Crown made the following submissions:
(z) The appellant was sentenced as a serious sexual offender on charges 3 to 7, which gave rise to a presumption, pursuant to s 6E of the Sentencing Act 1991 (‘Act’), that the sentences for those charges would be served cumulatively.
(aa) The Crown relied on Director of Public Prosecutions v EB[23] to submit that the fact that the appellant’s repeated offending was against the same victim did not lessen the degree of cumulation that was required.
(bb) The orders for cumulation made in respect of offences committed as part of the same incident were said to be open to the judge because, apart from the general requirement to recognise the separate offences committed on these occasions, they each represented different kinds of sexual penetration.
(cc) The Crown relied on the orders for cumulation imposed in Blair v The Queen[24] and Bussell v The Queen[25] to submit that the orders for cumulation imposed in the present case were open to the judge.
[23][2008] VSCA 127, [17].
[24][2014] VSCA 175. This case involved charges of incest for two consecutive acts of penetration on the same victim, for which the offender was resentenced to 6 years’ and 4 years’ imprisonment, respectively, with an order of cumulation of 1 year for the second charge.
[25][2014] VSCA 310. This case involved a charge of persistent sexual abuse of a child under the age of 16 and a charge of incest after the victim had turned 16. The offender was sentenced to 9 years’ imprisonment on the first charge and 6 years’ imprisonment on the second charge, 3 years of which were ordered to be served cumulatively.
In respect of the total effective sentence, the Crown made the following submissions:
(dd) The abhorrent nature of the crime of incest[26] is reflected in the 25 year maximum penalty it carries.
[26]R v Wakime [1997] 1 VR 242, 244.
(ee) There were a number of aggravating circumstances relevant to the appellant’s conduct that were identified by the judge[27] which the appellant did not challenge on the appeal.
(ff) The effect on the complainant, as described in Ms Jones’s victim impact statement,[28] was particularly devastating and the judge was entitled to give this consideration real weight in exercising the sentencing discretion.
(gg) Having exercised his right to a trial, the appellant could not claim in mitigation that he was remorseful.
[27]See [33] above.
[28]See [17] above.
In respect of the non-parole period, the Crown contended that there was no basis to find error. The Crown referred to the fact that the appellant pleaded not guilty — which led the judge to conclude that he lacked remorse and had uncertain prospects for rehabilitation — and the fact that the appellant’s offending was not isolated, as it had commenced in 2006. In any case, the Crown contended that, in the light of the length of the head sentence, the non-parole period could not be considered abnormally long.[29]
[29]In support of this proposition, the Crown relied on Kumova v The Queen (2012) 37 VR 538, 542 [14]; Romero v The Queen (2011) 32 VR 486, 493 [25].
Presence of mitigating circumstances and absence of aggravating circumstances
In reliance on the cases referred to at [36] above, the circumstances of the offending and the absence of certain aggravating factors present in other cases, the appellant submitted that the judge should not have imposed a sentence at the very top end of the range for incest offences.
The relevant circumstances of the offending and the aggravating factors absent in the appellant’s case compared to some other cases were said to be as follows:
(hh) the offending occurred over a significantly shorter period than comparable cases;
(ii) there was only one victim;
(jj) the complainant was not very young;
(kk) while there was coercion and restraint, the more serious violence seen in some other cases was not present;
(ll) none of the charges were representative or rolled-up charges; and
(mm) as observed by Priest JA in Reid in relation to the facts of that case: ‘even more degrading and depraved acts than those in this case have been perpetrated; pregnancy (with or without abortion) has occurred; or the child has been exposed to group sexual activity.’[30]
[30]Reid [2014] VSCA 145, [107].
The appellant also contended that there were mitigating circumstances applicable to the appellant, including:
(nn) the absence of a criminal record;
(oo) the appellant’s character, which was said to have been illuminated by the references from his family and friends and the evidence given by his father and ex-wife;
(pp) the burden of isolation from the appellant’s family, in particular from his children;
(qq) the appellant’s good employment history; and
(rr) the family support available to the appellant.
The Crown relied upon the aggravating circumstances found by the judge, which are set out at [33] above, and the ‘devastating’ effect of the offending on the complainant as disclosed in Ms Jones’s victim impact statement. In relation to charge 10, the Crown submitted that the appellant’s moral culpability was particularly high and that the individual sentence of 7 years was clearly open having regard to the callous nature of this episode of offending.
Analysis
We have not found the sentencing statistics upon which the appellant relied particularly helpful. Those bare statistics do not disclose the features of the cases that make up the relevant samples, including the circumstances of the offending, the presence of any aggravating or mitigating circumstances, the impact on the victim and whether the offender pleaded guilty.
We agree with the observations made by this Court in Hasan v The Queen[31] that, while an examination of comparable cases will often assist a judge to make an objective assessment of the range of sentences applicable in cases of similar gravity to that of the offender who falls to be sentenced, the limitations of this exercise must be borne in mind.[32] The Court further stated that tables or graphs showing average or mean sentences across the full spectrum of sentences, while of some utility, will be of limited use because they cannot of themselves identify the appropriate range for an offence of the particular gravity of that for which the particular offender is to be punished.[33]
[31](2010) 31 VR 28 (‘Hasan’).
[32]Hasan (2010) 31 VR 28, 38 [44]. See also Hudson v The Queen (2010) 30 VR 610, 616–18 [27]–[33] (‘Hudson’).
[33]Hasan (2010) 31 VR 28, 38 [45].
As the appellant pleaded not guilty, sentences involving guilty pleas are not a reliable guide to the appropriateness of the sentence imposed on the appellant. We note that, in MA,[34] it was observed that in all but one of the sentencing cases for the offence of incest previously surveyed by Redlich and Weinberg JJA in FD,[35] the offender had pleaded guilty.[36] The cases in which the offender pleaded guilty were R v CVP,[37] NJD v The Queen,[38] OAA v The Queen,[39] GEM v The Queen,[40] CF v The Queen[41] and DP v The Queen.[42] The case in which the offender pleaded not guilty was GJW,[43] which is included in the appellant’s table that is said to inform current sentencing practice.[44]
[34][2012] VSCA 214.
[35][2011] VSCA 8.
[36]MA [2012] VSCA 214, [81].
[37][2002] VSCA 193.
[38][2010] VSCA 84.
[39][2010] VSCA 155.
[40][2010] VSCA 168.
[41][2010] VSCA 275.
[42][2011] VSCA 1.
[43][2010] VSCA 193.
[44]See [36]–[37] above and Appendix A of these reasons.
In the light of the number of offences of incest committed by the appellant in the present case, the different forms of penetration — including the use of a vibrator — and the extended period over which the charged offending took place, this case can only be described as falling into the category of the worst offending of its type. Primarily, that is because of the devastating impact that his conduct had upon the complainant. The judge was quite right to say that the courts do not often see a victim impact statement as powerful in its effect as that of Ms Jones. The consequences of the appellant’s offending on the complainant are nothing short of horrific.
We agree with the Crown’s submission that, in addition to specific acts of aggravation that apply to some of the incidents — such as the use of force, which resulted in bleeding or bruising — there was an aggravating feature that was present throughout all of the offending in 2011. That feature was the continuation of the offending notwithstanding that the appellant lived with the complainant and was able to observe the harm that his actions were causing to her mental health.[45] This callous behaviour reached its nadir when the appellant again offended while the complainant was on leave from the adolescent psychiatric unit where she was being treated for the effects of his offending.
[45]As stated at [16] above, Ms Jones’s evidence was that the complainant seemed to be unhappy or depressed early in 2011.
The above features of this case make it singular and render comparisons with other cases somewhat unhelpful. This can be demonstrated by consideration of PDI[46] and Reid [47] upon which the appellant particularly relied.
[46](2011) 216 A Crim R 577. A summary of the case is included in Appendix B to these reasons.
[47][2014] VSCA 145.
PDI involved 37 charges of incest, 1 charge of attempted incest and 1 charge of committing an indecent act. The offender, who was the victim’s biological father, was resentenced by this Court to a total effective sentence of 15 years’ imprisonment with a non-parole period of 10 years and 6 months.
The features that PDI has in common with the present case include the following:
(ss) Both offenders pleaded not guilty, did not have any prior convictions and were sentenced as serious sexual offenders for all but two of the charges.
(tt) Both offenders commenced to sexually abuse their victims when they were around nine years of age, with the early offences not being the subject of any charges. The offender in PDI groomed the victim from the age of 8.
(uu) Both victims were isolated and psychologically vulnerable. Both offenders disregarded the victims’ protestations.
(vv) Some of the charges involved separate acts of penetration during single episodes of offending.
The particularly egregious features of the overall offending in PDI which are absent from the present case are as follows:
(ww) The charged offending in PDI extended over five years when the victim was 11 to 17 years of age whereas the charged offending in the present case extended over one year when the complainant was 13 to 14 years of age. PDI involved 37 charges of incest whereas the present case involved 8 such charges.
(xx) While the charged acts in both cases involved penile–vaginal, penile–anal and vibrator–vaginal penetrations, PDI also involved oral penetration and penetration of the victim’s anus with a sex toy. It is not clear whether a feature of the offending in the present case (digital–vaginal penetration) was present in PDI.
(yy) The offender in PDI instructed the victim to perform depraved and sexually degrading acts and to watch pornography. He used her as a ‘sex plaything’ and subjected her to psychological abuse.
(zz) The offender in PDI falsely represented that the victim’s mother had deserted her and took advantage of her dependency.
The aggravating features of the appellant’s offending in the present case which are absent from the offending in PDI are as follows:
(aaa) The appellant used force to restrain the complainant and caused some physical injuries.
(bbb) The appellant used threats — such as that the complainant’s mother would be hurt if the complainant disclosed the offending — to secure her silence.
(ccc) While the sentencing judge in PDI described the life of the victim as ‘horrendous’ it does not appear that the harm she sustained from the offending was anywhere near as extreme as the psychological damage that the complainant suffered. For example, the report of the PDI case does not indicate that the victim had attempted suicide on numerous occasions, or that she was incapable of engaging in basic everyday activities.
Reid[48] involved 13 charges of incest (11 of which were said to be ‘representative’),[49] 1 charge of producing child pornography and 1 charge of committing an indecent act with a 16 or 17 year old child under the care, supervision or authority of the offender. The incest charges involved digital–vaginal, penile–vaginal, penile–oral and penile–anal penetration, as well as penetration using a baseball bat, fisting and the use of sex toys. The victim was the offender’s stepdaughter and the offending occurred while the victim was aged between 13 and 17 years. In contrast to the present case, the offender in Reid pleaded guilty to all of the charges. He was resentenced by this Court to 14 years’ imprisonment with a non-parole period of 10 years.
[48][2014] VSCA 145.
[49]Although expressed by the Crown as ‘representative’ charges, each of those charges referred to discrete occasions involving multiple penetrations in the course of one incident. The expression did not connote that the conduct occurred on more than one occasion: Reid [2014] VSCA 145, [38].
In Reid, this Court highlighted two egregious features of the offending. First, when the victim complained to the authorities at the outset of the offending, the offender pressured her to lie. Once the investigation concluded that no offence had been committed, the offender regarded himself as having carte blanche to continue his molestation.[50] Secondly, the offender uploaded on the internet degrading and humiliating photographs of the victim for the sexual gratification of others.[51] The Court described the offending as ‘extremely serious’[52] and ‘a very serious example of a serious crime’.[53]
[50]Reid [2014] VSCA 145, [80], [108].
[51]Reid [2014] VSCA [81], [108].
[52]Reid [2014] VSCA 145, [2].
[53]Reid [2014] VSCA 145, [107].
Following an extensive review of incest cases, Priest JA stated:
Up until 1985, the highest total effective sentence and non-parole period imposed in this State for the crime of incest was in R v C, where a head sentence of 12 years’ imprisonment with a minimum term of 10 years was imposed. A sentence of that order would no longer seem remarkable. Changes in attitudes have seen a gradual increase in sentences, to the extent that sentences of imprisonment in ‘double figures’ for incest and related offences are not uncommon.
The cases demonstrate that sentences at the top of the range are usually imposed in relation to multiple offences that have taken place over a long period. Sentences of a high order are also imposed where the activity is multifaceted or of a perverted or depraved nature, where sex ‘toys’ or objects are used, or where photographs or video is taken of the victim involved in sexual activity. Physical assaults and threats are aggravating. Moreover, the younger the victim, and thus the greater the abuse of trust, the more serious is the offence regarded. Group sexual activity involving children is also a factor affecting the seriousness with which the offence is to be regarded. Unprotected sexual activity, exposing the victim to the risk of pregnancy or sexually transmitted disease, may also bear on the seriousness with which the offending is to be seen. Further, heavier sentences will be meted out where there is evidence of serious disturbance in the victim. Sentences at the lower end of the range are reserved for offences which are isolated or transitory, or where the offender is of low intelligence or seriously mentally impaired.[54]
[54]Reid [2014] VSCA 145, [87]–[88] (citations omitted).
We accept that the offending in PDI and Reid involved some aggravating features which are absent from the present case. However, that does not mean that, while PDI and Reid fall within the category of the worst cases of incest, the present case falls outside that category. As this Court said in PDI:
If features of the offending are present which require it to be characterised as falling within the worst category, the sentence will not become unreasonable or unjust because a lesser sentence has been passed in a like case or the same sentence has been passed for a case said to have worse features.[55]
[55]PDI (2011) 216 A Crim R 577, 594–5 [87], citing Hudson (2010) 30 VR 610, 619–20 [39].
While the offending in the present case extended over a shorter period, involved fewer charges of incest and lacked some of the more extreme elements of depravity found in PDI, Reid and some other cases, the present case involved a unique and very disturbing aggravating feature. That feature is the one which we have already discussed, namely, the appellant’s persistence with his offending after he became aware of the serious psychological harm that he was causing the complainant. The final offence of incest was particularly reprehensible, as it occurred after the complainant was hospitalised in an adolescent psychiatric unit to receive treatment for that harm. This offending created an obvious risk that her treatment would be undermined, and that her prospects of recovery would be jeopardised. Based on Ms Jones’s victim impact statement, it is no exaggeration to say that the appellant has severely damaged the complainant’s life, almost to the point of destruction.
It follows that current sentencing practice does not provide a basis for a finding that the judge was wrong to sentence the appellant towards the top of the range of sentences that were reasonably open in the proper exercise of the sentencing discretion.
We now turn to the principle of totality. That principle requires that, where a court sentences an offender for multiple offences, the overall sentence must be a ‘just and appropriate measure of the total criminality involved’.[56] The authorities also recognise that the total effective sentence should not be ‘crushing’ in the sense that it would destroy any reasonable expectation of a useful life after release.[57] However, the subjective effect of a total effective sentence upon the offender must be put in perspective, and should not be regarded as of paramount importance.[58] Thus, a richly deserved sentence need not be reduced because the offender may feel crushed by it.[59]
[56]Postiglione v The Queen (1997) 189 CLR 295, 307–8.
[57]DPP v Alsop [2010] VSCA 325, [30].
[58]Azzopardi v The Queen (2011) 35 VR 43, 63 [69] (‘Azzopardi’).
[59]R v Vaitos (1981) 4 A Crim R 238, 301, cited with approval in Azzopardi (2011) 35 VR 43, 63 [69].
The principle of totality is usually given effect by ordering substantial concurrency between individual sentences. However, another course that may be suitable in some cases is to reduce individual sentences below what is usually regarded as appropriate in order to achieve a proportionate outcome.[60]
[60]Azzopardi (2011) 35 VR 43, 62–3.
Where, as in the present case, an offender is to be sentenced as a serious sexual offender on some of the charges, the principle of totality must be considered in the context of s 6E of the Act. That section provides that a term of imprisonment imposed on such an offender ‘must, unless otherwise directed by the court, be served cumulatively on any uncompleted … sentences of imprisonment imposed on that offender’.
In R H McL v The Queen,[61] the plurality held that the need for judges to avoid compressing sentences was especially important where the accused person was a ‘serious sexual offender’ within the meaning of the statutory precursor to s 6E of the Act. The plurality held that the object of that section was to make relevant sentences operate cumulatively rather than concurrently, and that that object would be compromised and probably defeated in most cases if the ordinary application of the totality principle was a sufficient ground to enliven the discretion to sentence otherwise.[62]
[61](2000) 203 CLR 452 (‘R H McL’).
[62]R H McL (2000) 203 CLR 452, 476-7 [76].
In the present case, there appears to be some force, at first blush, in the appellant’s submission that the uniformity in the sentences and orders for cumulation for incest charges 1, 3 and 5 to 9 indicates that the judge adopted a ‘mechanistic’ approach to sentencing, without regard to the particular circumstances of those offences. This is especially so having regard to the following:
(ddd) The appellant fell to be sentenced as a serious sexual offender in relation to incest charges 3 and 5 to 10, but not incest charge 1.
(eee) The judge imposed the same sentence and order for cumulation for charges 3 and 5 and disregarded the fact that they were part of the same incident (incident 1). He did likewise for charges 6 and 7 notwithstanding that they were part of incident 3, and for charges 8 and 9, notwithstanding that they were part of incident 4.
(fff) The sentence and order for cumulation that the judge imposed for charge 3 was the same as those for charges 1 and 5 to 9 even though the judge held that there were aggravating features of the latter charges which were absent from charge 3.
Upon closer examination, however, there is less substance to the appellant’s submission. The circumstances of each of the offences of incest were very similar. Each was characterised by conduct which overbore the will of the complainant and contributed to her deteriorating mental health which culminated in her hospitalisation. The fact that there were different forms of penetration did not necessarily mean that disparate sentences for each were warranted. Similarly, as each and every act of incest had a cumulative effect on the appellant’s mental health, it was open to the judge to impose uniform sentences and orders for cumulation.
We agree with the Crown’s submission that, in the present case, a broad brush approach was acceptable. In the light of the similarities of the offending for each incest charge, identical individual sentences and orders for cumulation were not inappropriate. If a minute examination of the circumstances of each incest offence had been conducted, and materially different individual sentences and orders for cumulation had been imposed, the outcome would have raised concerns that an inappropriate structured approach to sentencing had been adopted.
In all the circumstances the individual sentences imposed by the judge for the incest charges were not manifestly excessive.
Having regard to the very serious nature of the overall offending and the aggravating circumstances which the judge found and upon which the Crown relied,[63] the total effective sentence that resulted from the orders of cumulation, whilst stern, was not manifestly excessive. The charged offending[64] extended over a reasonably lengthy period and the devastating impact of that offending upon the complainant warranted individual sentences, orders for cumulation and a total effective sentence towards the upper end of the range that was reasonably open in the proper exercise of the sentencing discretion.
[63]See [33], [53] above.
[64]The appellant cannot be additionally punished for the uncharged offending. However, that offending can be relied upon to negative mitigating circumstances upon which the appellant might otherwise have sought to rely, such as that the charged offending was isolated and that he was a person of good character. See DPP v McMaster (2008) 19 VR 191, 203 [53].
We agree with the Crown that the appellant’s plea of not guilty, absence of remorse and unclear prospects of rehabilitation justified a lengthy non-parole period. The fact that the non-parole period is 77 per cent of the head sentence does not evince any sentencing error in the circumstances of this case.
For the above reasons the appeal is dismissed.
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| CASE | CHARGES | CIRCUMSTANCES | PLEA | SENTENCE |
| ISJ v The Queen (2012) 38 VR 23 | 6 x Incest 2 x Indecent act with child < 16 Produce child pornography – 3m | D was V’s mother’s partner. V 15. Offending over 1 year. Numerous act of intercourse 2-3 times per week. 6 specified acts of incest. Penile and digital penetration. Uploading video of sex with a child. | NG | TES – 8½y NPP – 5y8m |
| MA v The Queen [2012] VSCA 214 | 5 x Incest 1 x Attempted Incest Indecent act with child <16 Possess child pornography | D was the partner of V’smother. V aged 8 -12 offending over 3 years. Specified acts. | NG G to pornography | TES – 9y3m NPP – 7y3m |
| BSJ v The Queen (2012) 35 VR 475 | 4 x Incest 3 x Attempted incest 2 x Indecent assault Indecent act with child <16 | 4 stepdaughters over 7½ years. V1 13-17, V2 19-22, V3 12 & 17 and V4 23. Penile vaginal penetrations & attempts, digital penetrations. | NG | TES – 12½y NPP – 8½y |
| HRA v The Queen [2012] VSCA 88 | 5 x Incest * Rep 1 x Attempted incest Indecent act with child <16 | V stepdaughter. Start V was 6 years, offending over 10 years. Penile vaginal, digital and oral penetration. Use vibrator. Representative counts in relation to countless incidents. Weekly basis over a year penile vaginal penetration. | G – but limited insight | TES – 12y NPP – 9y |
| DLJ v The Queen [2011] VSCA 389 | 6 x Incest 2 x Indecent assault | V stepdaughter. Start V was 11, offending over about 5 years. This included multiple acts of sexual penetration, making V lick D’s penis ejaculate on stomach and use of vibrator. | NG | TES – 9y NPP – 6y |
| DPP v HPW [2011] VSCA 88 | 5 x Incest * Rep 3 x Indecent act with child <16 | Biological daughter age 11 years, over 8 months. 18 Oral penetration of V’s mouth. 5 Digital penetration of vagina. 2 Lingual penetration of vagina. 1 Anal penetration. 2 Pet dog licking her vagina. 8 Occasions having V masturbate herself to orgasm. | G | TES – 9½y NPP – 6½y |
| FD v The Queen [2011] VSCA 8 | 8 x Incest 1 x Attempted incest 2 x False imprisonment | On 2 biological daughters. V1 age 6-9 and V2 age 6-7. Numerous penile vaginal, oral and digital penetration on both. Occurred in presence of other V watching sister. Handcuffs used on both in their own beds. Serious trauma to victims. | G | TES – 12y NPP – 9y |
| GJW v The Queen [2010] VSCA 193 | 14 x Incest 4 x Indecent act with child | De facto wife’s daughter. V aged 11, over 22 months period. Specified occasions. 3 Digital penetrations. 5 Oral penetrations. 3 Lingual penetrations. 3 Penile vaginal penetrations – including occasion unprotected. 3 Ind act V masturbating D. | NG | TES – 10y NPP – 8y |
| Name | Counts | Plea | TES/ NPP | Incest sentences | Victim Age(s)* | Nature of offending |
| CF v The Queen [2012] VSCA 22 | Incest x 19 Indecent act with child < 16 x 16 Counselling child < 16 to take part in sexual penetration x 1 | NG | 12y/ 8y | 6y x 18 4y x 1 | <16 | · 2 victims · Co-offender (husband) · Victims forced to perform oral sex on each other Mitigating factors · Offender may spend time in gaol protection · Physical and mental difficulties of offender · Unlikely to re-offend · Remorse · Limited cross-examination of victims |
| PDI v The Queen (2011) 216 A Crim R 577 | Incest x 37 Attempted incest x 1 Indecent act x 1 | NG | 15y/ 10.5y | 8y x 2 7y x 25 6y x 2 5y x 5 4y x 3 3y x 1 (attempt) | 11 | · 1 victim · Offending began at age 8/9 (not charged) · Duration: 5y · Victim isolated and psychologically vulnerable · Offender falsely represented victim’s mother had deserted her · Offender and victim slept in same bed · Charged conduct included use of dildo and viewing of pornography · Offender ignored victim’s protestations and tears |
| TC v The Queen [2011] VSCA 190 | Indecent assault x 3 Incest x 6 Threat to kill x 1 Common assault x 3 | NG | 10y/ 7.5y | 6y x 4 3y x 1 1.5y x1 | 14 | · 1 victim (in relation to incest count) Mitigating factor · Reasonable prospects for rehabilitation |
*At earliest date of offending
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