LDF v The Queen

[2011] VSCA 237

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2009 0870

LDF

Appellant

v

THE QUEEN

Respondent

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JUDGES	MAXWELL P, WEINBERG and HARPER JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	30 March 2011
DATE OF ORDERS	30 March 2011
DATE OF JUDGMENT	24 August 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 237
JUDGMENT APPEALED FROM	R v [LDF] (Unreported, County Court of Victoria, Judge Jenkins, 14 October 2009)

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CRIMINAL LAW – Appeal – Sentence – Incest – Representative counts – Two daughters – Recurrent offending – Moderate risk of reoffending – No victim empathy – Prosecution errors – Incorrect maximum penalty – Incorrect factual summary – Crown concessions – Appeal allowed – Resentenced.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr C B Boyce	Amad & Amad
For the Respondent	Mr B L Sonnet	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P:

1. The appellant pleaded guilty in the County Court to multiple sexual offences, which included five counts of incest.  There were three victims, two of whom were his daughters.  He was sentenced as set out in the table at paragraph 3 below. 

1. The sentencing was affected by error, however, as the Crown conceded in an appeal submission which was exemplary both for its candour and for its thoroughness.  The concessions were appropriately made and, as the Crown submitted, necessitated a significant reduction in the sentence imposed. 

1. Accordingly, at the conclusion of the appeal hearing the appellant was resentenced as set out in the table below.  These are my reasons for joining in those orders.

Count	Victim	Charge	Maximum	Original Sentence	Original Cumulation	New Sentence	New Cumulation
1	PS	Incest (rep)	20y	5y	2y	5y	1yr 6m
2	PS	Incest	20y	2y	-	2y	-
3	PS	Incest (rep)	20y	8y	Base	6y	Base
4	PS	Incest	25y	3y	6m	3y	6m
5	PS	Indecent Assault (rep)	10y	3y	15m	2y	6m
6	CH	Indecent Act C < 16	10y	18m	12m	1y	6m
7	LP	Incest	25y	3y	15m	3y	1y
8	LP	Indecent Assault (rep)	10y	3y	2y	3y	2y
TES NPP				6AAA 16y      20y 12y      17y	6AAA 12y      14y 9y 11y

Circumstances of the offending

1. The circumstances of the offending were set out in the Crown opening, an edited version of which appears as Appendix A to these reasons. 

Error in maximum penalty

1. The sentencing judge imposed sentence on all of the incest counts on the basis of a maximum penalty of 25 years’ imprisonment.  The prosecutor had made a submission to that effect, on which her Honour understandably relied.  As the Crown’s appeal submission pointed out, however, the conduct giving rise to counts 1, 2 and 3 was committed before 1 September 1997, when the applicable maximum was 20 years’ imprisonment.[1] 

   [1]Sentencing and Other Acts (Amendment) Act 1997 s 2(2).

1. An error as to the applicable maximum may, but need not, vitiate the exercise of the sentencing discretion.[2]  In the present case, as the Crown conceded, the error appeared to have materially affected the exercise of the discretion.  Attention was drawn to the following matters:

·the sentencing imposed on count 3 represented a high fraction (32 per cent) of what the judge erroneously believed the maximum to be;

·the respective sentences imposed on counts 1 and 3 represented a large part of the total effective sentence;  and

·in determining the gravity of the offending, the judge appeared to have been influenced by the incorrect maximum penalty (an error said in R v Dennis[3] to be an important consideration on this question).

[2]R v R J E [1999] VSCA 79, [12]; R v Beary (2004) 11 VR 151, 159 [21].

[3](2000) 114 A Crim R 33.

The representative counts

1. As appears from the sentencing table, counts 1, 3, 5 and 8 were representative counts.  The sentencing judge said that it was ‘a particularly significant and aggravating feature of [the] offending that in the case of four counts they represent offending of a similar nature over a prolonged period’.  The appellant’s complaint was that there was an inadequate factual basis for the higher sentences which (as the table shows) her Honour imposed on the representative counts. 

1. In responding to this complaint, the Crown submission identified a ‘fundamental problem’ with counts 5 and 8.  Certain facts set out in the amended Crown opening were erroneously led in evidence as part of the Crown case establishing the representative nature of these counts.  The leading of this evidence was contrary to the plea presentment as settled between the parties, because the matters referred to fell outside the relevant timeframes.[4] 

   [4]See O A A v The Queen (2010) VSCA 155.

1. While the prosecutor endeavoured to explain these matters as ‘background information only’, they nevertheless demonstrated serious uncharged offending.  According to the Crown’s submission:

As the judge has recited this material as part of the circumstances of counts 5 and 8 under the heading ‘representative counts’ it is impossible to resist the conclusion that the appellant has been sentenced for criminal acts for which he has not been charged.  This, of course, is in contravention of the High Court’s decision in Weininger v The Queen.[5]

[5](2003) 212 CLR 629, 640 [32].

1. Once again, this was not the sentencing judge’s error but the prosecutor’s.  It meant, the Crown conceded, that the appellant fell to be resentenced in respect of both count 5 and count 8 on a much narrower factual basis. 

Gravity of the offending

1. The sentencing judge was right to describe these as ‘extremely serious crimes’.  As this Court said again very recently, the crime of incest involves a profound breach of trust and parental responsibility, which our society will not tolerate.  The sentences imposed must make this clear.[6]

   [6]See M P v The Queen [2011] VSCA 78, [31].

1. As her Honour recorded, the victim impact statements provided by the appellant’s daughters:

each convey a deep sense of betrayal by you and a profound sense of confusion and hurt for the lack of recognition for what you had done to each of them.  Your eldest daughter continues to be tormented by the fact of having concealed your offending in the belief that she was your only victim.  Your younger daughter has been further alienated from her family by reason of her now living [overseas].  Their friend, although the victim of one episode of offending only, has also clearly expressed the ongoing psychological trauma she has experienced, and difficulties relating to her family and with males in particular.

Your offending behaviour toward each of your complainants, but especially your eldest daughter, could only be expected to produce profound and lasting psychological damage.  The contents of each of the victim impact statements gives some indication of the ongoing struggles being experienced by each one of them.

Mitigating factors

1. The plea of guilty came at a very late stage, on the eve of trial and after all three victims had been required to undergo cross-examination at the committal.  Her Honour accepted, nevertheless, that the guilty pleas did indicate the appellant’s acceptance of responsibility, and saved the victims the further trauma of giving evidence and being cross-examined before a jury. 

1. Her Honour also accepted that, because of the nature of the offending, the appellant was likely to be placed in protective custody.  She also accepted that he would be at greater risk because of his former employment as a prison officer. 

Risk of reoffending

1. Following the plea hearing, the judge ordered that the appellant be assessed by a forensic psychiatrist, as she was not satisfied that the psychological reports tendered on his behalf had adequately assessed his prospects of rehabilitation and risk of reoffending.  The psychiatrist’s report concluded that there was a moderate risk of recidivism.  In particular:

·the appellant’s conduct indicated ‘a clear, stable pattern of deviant sexual behaviour’;

·the abuse had escalated in frequency and severity over time, reducing in frequency when the appellant’s daughters became adults but nevertheless recurring in their adulthood shortly prior to his arrest;

·the appellant’s criticism of one daughter was suggestive of a minimisation of the impact of his behaviour;

·the appellant did not display empathy with his victims;  and

·there was no evidence of depression or mania or psychosis. 

Crown submission on range

1. On the plea, the prosecutor submitted that the available sentencing range in the present case was between 12 and 14 years for the head sentence and between 10 and 12 years for the non-parole period.  Her Honour said in her reasons that this range was ‘inadequate in the circumstances, particularly having regard to the number of aggravating features’.  Her Honour referred specifically to the number of victims, their ages when the offending first occurred, the serious adverse psychological impact on each of them and ‘the exploitative nature of your offending, where it continued against your daughters into adulthood’.

1. On the appeal, the Crown put forward a revised submission on sentencing range in the light of the conceded errors.  The Crown submission also drew attention to an overstatement by her Honour of the duration of the offending.  Her Honour sentenced on the basis that the offending against the elder daughter ‘extended over about 16 years’.  In fact, the duration of the offending was only about 3 years, as there was a gap of 3 years between counts 2 and 3, a gap of 9 years between counts 3 and 4, and a gap of 18 months between counts 4 and 5.  As the Crown acknowledged, this was an important distinction in the assessment of the overall criminality.  It means that this was intermittent, rather than sustained, offending over a long period. 

1. On the appeal, the Crown submitted that the appropriate range for the head

sentence was between 10 and 12 years and for the non-parole period between 8 and 10 years.  As appears from the resentencing, I considered that this was an appropriate submission on sentencing range in the light of current sentencing practices.[7] 

[7]As to which, see F D v The Queen [2011] VSCA 8, [22]–[30].

WEINBERG JA:

1. My reasons for joining in the orders made in this matter are as stated by Maxwell P.  I agree entirely with his Honour’s reasons for judgment. 

HARPER JA:

1. I have had the advantage of reading in draft the reasons of Maxwell P for joining in the orders made by the Court at the conclusion of the appeal hearing in this matter.  I agree entirely with those reasons.

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APPENDIX A

LDF is the father of PS, born in November 1979, and LP, born in December 1980.  He was born in January 1959. 

Count 1 is a representative count of digital penetration.

Between 5 August 1989 and December 1992 PS would regularly watch TV with her family.  The accused sat beside her with her legs across his and placed his left arm around her and his right hand between her legs.  Often she had bathed and was wearing a nightie without underwear.  The accused would fondle her vagina and put his fingers into her vagina.  This activity occurred on many occasions.

Count 2 is a count of oral penetration. 

During the same period, PS awoke to find the accused pulling her underpants down.  He was kneeling over her bed, leaning over her and then performed oral sex on her for a couple of minutes.  She heard her mother calling for him.  He stopped and pulled the blankets up. He hid behind the door and subsequently went into the toilet and flushed the toilet.

Count 3 is a representative count of penile penetration.

In about October 1995, after the accused and his partner had separated, the accused and his two daughters lived together.  Over a period until about November 1996, the accused would have sexual intercourse with PS.  She recollects a specific incident when she and the accused were on a new bed  that the accused had purchased  after the separation.  The accused penetrated her vagina with his penis whilst he was lying on top of her. 

The accused at about this time purchased a pregnancy test and told PS to take the test.  The accused said to PS  that if the test was positive she was to say that it was someone else’s baby.  PS told him that she had not had sex with anyone else but him.  The test was negative. 

Count 4 – one incident of digital penetration.

On a date in February 2006 PS was 5 months pregnant and visited the accused.  She was wearing jeans with a fly.  The accused was watching television.  She sat on the couch and, as she was tired, she lay down and fell asleep.  She awoke to find the accused sitting on the floor next to her with his hand inside the now–undone fly and the undies and his finger in her vagina.  The accused moved his finger about: she told him to stop and he did.

Count 5 is a representative count of indecent assault.  It covered two incidents.

In the month of June 2007, a few days before PS had an appointment with her solicitor about an unrelated matter, the accused came to the driver’s side of her car after she had got in.  He put his hand on her thigh and moved his hand towards her vagina and rubbed her vagina with his thumb over her clothes.  She told him to stop and he moved his hand away.

Subsequently, PS picked up the accused from his workplace as he was to accompany her to her appointment with the solicitor.  Whilst she was driving, the accused put his hand on her thigh and moved it gradually to her vagina area.  He rubbed her vagina with his little finger over her clothes.  She told him to stop and he did. 

Count 6 is an offence of indecent act with a child under 16.

CH met PS when she was 13 and in the same class.  She would sleep over at PS’s house about once a week.

CH attended PS’s 14^th birthday in November 1993.  CH, PS and the accused stayed up to watch a movie.  CH fell asleep.  Later she woke up in the dark and the TV was still on.  She felt the accused’s hands touching and rubbing her thighs, stomach and breasts outside her clothing and he kissed her neck.  This continued for about 15 minutes.  She was too scared to move.  Eventually she grabbed his hand and pushed it away.  She got up and walked out. 

Count 7 is a count of digital penetration.

When LP was about 19, she returned home with a boyfriend.  She went to bed and could hear her boyfriend and her father talking.  The next thing she remembered was waking to find the accused on the floor next to her.  The accused put his hand under the bedsheets and pulled her underwear down.  The accused fondled her vagina and put his fingers in her vagina and moved them in and out.  She tried to tighten her legs together and said ‘Dad, don’t’ and cried.  The accused continued for a few minutes and then left the room. 

Count 8 is a representative count of indecent assault.

When LP began driving, the accused would come out to the car as she was leaving.  She would be sitting in the driver’s seat of her car, and the accused would crouch beside her and put his hand on her upper thigh with this thumb touching her vagina.  She would move his hand away and say ‘Don’t’. The accused would shrug it off and put his hand back.