Lord v The Queen

[2013] VSCA 80

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCR 2013 0001

DIANA LORD	Appellant
	V
THE QUEEN	Respondent

---

JUDGES	BUCHANAN and ASHLEY JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	12 April 2013
DATE OF JUDGMENT	12 April 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 80
JUDGMENT APPEALED FROM	R v Lord (Unreported, County Court of Victoria, Judge Lawson, 6 December 2012)

---

CRIMINAL LAW – Sentencing – Indecent act with child under 16 – Three charges – Whether sentence on charge in respect of which appellant sentenced as a serious sexual offender affected by specific error or manifestly excessive – Appeal allowed and appellant re-sentenced – No point of principle.

---

Appearances:	Counsel	Solicitors
For the Appellant	Mr C Carr	James Dowsley & Associates
For the Crown	Ms F Dalziel	Solicitor for the Commonwealth Director of Public Prosecutions

BUCHANAN JA:

1. I invite Ashley JA to give the first judgment.

ASHLEY JA:

1. Diana Lord appeals by leave against sentence passed on 6 December 2012 when, on a plea of guilty, she was sentenced on three counts of indecent act with a child under 16 years[1] to imprisonment for 12 months, 9 months and 2 years imprisonment respectively.  With cumulation, the total effective sentence was 2 years and 4 months’ imprisonment.  The judge fixed a non-parole period of 9 months’ imprisonment, and declared pre-sentence detention to be six days.

   [1]Contrary to s 47(1), Crimes Act 1958.

1. The offending took place in a six week period in July and August 2011.  The appellant was then aged 24.  The complainant was a boy aged 13.  The appellant and the boy’s mother were friends.  The appellant knew the boy from when he was very young.  They progressively became very close from February 2011, communicating by text messages, phone calls and Face Book.  The child was evidently infatuated with the appellant.  She, despite warnings from a friend who harboured suspicions about her relationship with the child, engaged in the offending conduct over the period which I mentioned a moment ago. 

1. The charges laid against the appellant were these:

Charge 1:      The appellant pulled up her tee-shirt and bra, the complainant placed his hands around her breasts and bit her on the nipple.

Charge 2:      The child touched the appellant on her vagina, outside her clothing.

Charge 3:      The child grabbed the appellant’s hand, put it down his pants onto his penis, and the appellant rubbed it.

1. Each charge was representative, but, uncommonly in the case of representative charges, not of many offences.  The misconduct referred to in Charge 1 was twice repeated, the activity referred to in Charge 2 was, broadly speaking, once repeated (on that occasion, inside the appellant’s panties) and the offending referred to in Charge 3 was, again speaking very broadly, twice repeated – on each of which occasions the child ejaculated.

1. There are two grounds of appeal:

1.        The sentencing judge erred in her approach to sentencing for charge 3.

Particulars

The sentence imposed on charge 3, when comparison is made to the sentences imposed on charges 1 and 2, in light of the relative similarity of the gravity of all three offences, indicates an inappropriate treatment of either or both of the fact that the appellant was a serious sexual offender and the uncharged conduct represented by the charged offence.

2.The sentence imposed on charge 3, the orders for cumulation and the consequent total effective sentence are each manifestly excessive.

1. The appellant does not argue that the sentences passed on Charges 1 and 2 were manifestly excessive, only the sentence imposed on Charge 3.  That sentence, together with cumulation (the appellant accepts that some cumulation was appropriate) is said to have yielded a total effective sentence which was manifestly excessive, this infecting the non-parole period. 

1. Respecting Charge 3, counsel submitted that the judge must have overweighed the fact that the appellant stood to be sentenced as a serious sexual offender (in which circumstances s 6D(a) of the Sentencing Act 1991 ‘required the judge to regard protection of the community as the principal purpose for which sentence is imposed);  or overweighed the gravity of the offence by contrast with the offences alleged by Charges 1 and 2;  or else in some way misused the circumstance that Charge 3 was a representative count.

1. The appellant’s offending was perpetrated by an adult – albeit youthful – upon a child.  That is always a serious matter.  In the present case, it can to an extent be explained, though not excused, by the child’s infatuation for the appellant, his active participation in what happened, and by the appellant’s reduced state at the time.  Further, no penetration was involved.  In the spectrum of sexual misconduct perpetrated by adults upon children, very evidently this was not high-end offending. 

1. Then, in the sentencing synthesis, the personal circumstances of the appellant must be brought to account.  She was, as I have said, aged 24 at the time of offending.  She is a person of modest intelligence, with a quite poor scholastic record.  She was assessed in 2012 as being cognitively and emotionally immature.  She was sexually abused by a brother when she was quite young.  This led on to her later attempting suicide.  She formed a relationship whilst still a teenager, and had a child.  The relationship broke down in circumstances where the partner became persistently  violent, and raped her. The partner later committed suicide.  She formed another partnership.  It produced a second child.  That relationship also failed.  At the time of offending the appellant was enmeshed in personal difficulties, and was emotionally vulnerable.  Her judgement was affected.  Her moral culpability for her offending was, as the judge found, reduced in those circumstances.

1. Other matters pertinent to sentence were these:  first, the appellant pleaded guilty.  The judge accepted that the plea evidenced true remorse, in addition to it having utilitarian value.  Second, a psychologist opined, and the judge accepted, that the appellant’s offending did not indicate a paedophilic tendency.  Third, the appellant had not offended previously, nor subsequently.  Fourth, the appellant had an extremely modest history of illegal drug use, and no history of abuse of alcohol.

1. In all the circumstances, the judge concluded that the appellant’s prospects of rehabilitation were good.

1. In the sentencing synthesis, the circumstances of the offending, the appellant’s personal circumstances and other matters going in mitigation, all had their part to play. So also, in respect of Charge 3, did s 6D of the Sentencing Act 1991.

1. Two points should be made about s 6D.

1. First, whilst sub-s (a) provides that protection of the community is to be the principal purpose for which sentence is imposed, protection of the community is always a sentencing consideration;  and, as this Court said in R v LD:[2]

   [2][2009] VSCA 311, [25]–[26] (Maxwell P, Redlich JA and Vickery AJA)].

… nothing in s 6D(a) justifies the imposition of a sentence longer than is necessary to protect the community against the risk which the offender actually presents. Thus, if the risk of re-offending is assessed as low – as it was in the present case – the protection of the community will weigh less heavily as a consideration than if the risk had been assessed as high.

and

Since protection of the community is always a relevant consideration in sentencing, the directive in s 6D(a) will ordinarily have little impact on the determination of the appropriate sentence.

In this case, the circumstances that I have described were such that protection of the community ought to have had, its highest, minimal impact upon sentence.

1. Second, it is related to the observation which I have just made, respecting s 6D(b) the Crown did not submit that the imposition of a disproportionately long sentence was required; and the judge did not indicate rejection of the Crown’s position.

1. It follows from what I have said concerning s 6D that the fact that the appellant fell to be sentenced on the third charge as a serious sexual offender should have had, at its highest, minimal impact on the sentence imposed. I consider that the section could not account for the sentence imposed, which was twice as heavy as that imposed on Charge 1, and more than twice as heavy as that imposed on Charge 2.

1. Of course, the question whether something went wrong in the sentence imposed on Charge 3, causing it to be outside the range of a sound exercise of the sentencing discretion, is not answered by saying that the sentence was much heavier than the sentences imposed on Charges 1 and 2. Conceptually, it might be the case that the sentences passed on those other charges were quite inadequate. But in this case the Crown raises no such argument. Further, on the plea the Crown submitted that an appropriate total effective sentence would be in the range 12-24 months, that being in a case where some cumulation (even if s6E of the Sentencing Act was not applied with full rigour) was inevitable. The matters just mentioned lead to a conclusion, in all the circumstances, that the sentences imposed on Charges 1 and 2 were well in the range.  That is confirmed, to the extent that sentencing statistics can be of any use, by consideration of Sentencing Snapshot 113, published by the Sentencing Advisory Council in 2011

1. That takes me back to this question: if it was not s 6D of the Sentencing Act, what could account for the relative severity of the sentence passed on Charge 3?

1. Viewing Charge 3 as a discrete incident, it is, I consider difficult to find an explanation.  True it is that it involved the appellant touching the child, rather than the situation involved in Charges 1 and 2.  But, according to the prosecution opening, what happened was that the child grabbed the appellant’s hand, put it down his pants onto his erect penis, and rubbed his penis.  In short, the appellant’s misconduct was initiated by the child’s action.  In that respect, it may be contrasted with the precursor to the offence the subject of Charge 1, and appears to be more akin to the conduct the subject of Charge 2.

1. But then there must be considered the fact that Charge 3 was a representative count.  The significance of a representative count has often been remarked upon.[3]  An offender is to be punished for the offence charged, not for other acts.  The fact that a charge is representative does not stand as an aggravating circumstance.  But the fact that a charge is representative denies the offender the opportunity of saying that the offence was an isolated one;  and it enables the charged offence to be set in full context.  This may bear on matters such as the extent of culpability, the need for specific deterrence, and prospects of rehabilitation.

   [3]See, for instance, R v SBL [1999] 1 VR 706, R v Hunter [2006] VSCA 9, [2] (Charles and Vincent JJA), DPP v EB [2008] VSCA 127, [15] (Nettle JA), DPP v McMaster [2008] VSCA 102, [42]–[49] (Ashley JA), R v LFJ [2009] VSCA 134, [8] (Maxwell P and Kellam JA).

1. In the present case, in my opinion, the fact that Charge 3 was a representative count added almost nothing to the sentencing equation.  The appellant’s culpability was assessed by the judge as reduced, there was an explanation for her offending which meant that specific deterrence had at most a very small role to play, and the judge assessed prospects for the appellant’s rehabilitation as being good.

1. In the result, it seems to me that there is no logical explanation why the sentence on Charge 3 was as great as it was.  One could hazard that it reflected the fact that the other instances of broadly the same conduct led to the child ejaculating.  But if that is the explanation, in substance the sentence would have been punishing the appellant for an uncharged offence.

1. I have concluded that the sentence imposed on Charge 3 was impermissibly great.  I cannot say why that came about.  One or other of the explanations proposed for the appellant might be the correct one.  But in the end it matters not.  In my opinion, Ground 2 is made out, and a different sentence should be passed.

1. I propose that:

(1)The appeal be allowed, the sentence imposed on Charge 3 be set aside, and in lieu thereof the appellant be sentenced on that charge to 18 months’ imprisonment. 

(2)The sentences on Charges 1 and 2 be confirmed.

(3)Three months of the sentence on Charge 1 and one month of the sentence on Charge 2 be cumulated on each other and on the sentence on Charge 3.

1. In that event, the total effective sentence would be 22 months’ imprisonment.

1. Sentences imposed for offences against s 47(1) of the Crimes Act may be suspended in whole or in part if the court is satisfied that it is desirable to do so.  I have had regard to the matters mentioned in s 27(1A)(a) and (d).  I consider that a

sentence suspended save in respect of time already served is compatible with those considerations.  It seems to me preferable than providing for a longish parole period, although I recognise that it will not enable the supervision that comes with parole.

1. The appellant was sentenced on 6 December 2012.  A declaration was made for six days pre-sentence detention.  So she has served a little more than four months’ imprisonment.  I propose that 18 months of the total effective sentence of 22 months’ imprisonment be suspended for an operational period of 22 months, the operational period being deemed to commence on 6 December 2012.

BUCHANAN JA:

1. I agree with the judgment of Ashley JA.

---