Lugo v the Queen
[2020] VSCA 75
•30 March 2020
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2019 0075
| ROBIN LUGO (a pseudonym)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]To ensure that there is no possibility of identification of the victim of the sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.
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| JUDGES: | MAXWELL P, PRIEST, KAYE, T FORREST and EMERTON JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 6 November 2019 |
| DATE OF JUDGMENT: | 30 March 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 75 |
| JUDGMENT APPEALED FROM: | DPP v [Lugo] (Unreported, County Court of Victoria, Judge Gamble, 22 February 2019) |
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CRIMINAL LAW – Appeal – Sentence – Standard sentence scheme – Indecent act with child under 16, sexual assault of child under 16 (two charges) – Victim was applicant’s natural daughter – Sentence on first sexual assault 2 years and 6 months’ imprisonment – Sentence on second sexual assault 4 years and 4 months’ imprisonment – Standard sentence of 4 years applied only to second assault – Whether judge erred in assessment of offence seriousness – Whether standard sentence given too much weight – Whether sentences manifestly excessive – Very serious offending – High moral culpability – Serious victim impact – No error – Sentences within range – Leave to appeal granted but appeal dismissed – Brown v The Queen [2019] VSCA 286 applied – Sentencing Act 1991 ss 5A, 5B.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr R F Edney with Ms N Vermezovic | Markotich Lawyers |
| For the Respondent | Mr C B Boyce QC with Ms J Warren | Mr J Cain, Solicitor for Public Prosecutions |
MAXWELL P
KAYE JA
T FORREST JA
EMERTON JA:
Summary
The applicant pleaded guilty to three charges of sexual offending against his natural daughter. At the time of the first charged act, the applicant was 47 and his daughter was 9 or 10; at the time of the third charged act, he was 48 and she was 11.
The offences (all of which carry the same maximum penalty of 10 years’ imprisonment) and the sentences were as follows:
(a) indecent act with a child under 16:[2] 2 years’ imprisonment;
[2]Crimes Act 1958 s 47(1).
(b) sexual assault of a child under 16:[3] 2 years and 6 months’ imprisonment; and
(c) sexual assault of a child under 16:[4] 4 years and 4 months’ imprisonment.
With cumulation, the total effective sentence was 5 years and 10 months’ imprisonment. A non-parole period of 3 years and 11 months was fixed.
[3]Ibid s 49D(1).
[4]Ibid.
The offence the subject of charge 3 was a ‘standard sentence offence’. That is, it was an offence for which a standard sentence (in this case, 4 years’ imprisonment) was prescribed, in accordance with the standard sentencing scheme established in 2017.[5] For that reason, this application was heard together with two other appeals concerning sentences imposed for standard sentence offences.[6]
[5]Sentencing Act 1991 s 5A(1); Crimes Act 1958 s 49D(2A).
[6]See Brown v The Queen [2019] VSCA 286 (Maxwell P, Priest, Kaye, T Forrest and Emerton JJA) (‘Brown’); DPP vDrake [2019] VSCA 293.
The application for leave to appeal advances a ground of manifest excess, directed at all of the sentences imposed. In addition, there is a specific attack on the sentence of 4 years and 4 months imposed on charge 3, which is said to show that the judge gave the standard sentence ‘impermissible weight in the instinctive synthesis’. It is also said that his Honour erred in his assessment of the seriousness of that offence.
For reasons which follow, we would grant leave to appeal but dismiss the appeal. In our opinion, this was very serious offending, for the reasons which the sentencing judge clearly identified. The complainant (‘K’) was ‘quite young and very vulnerable’, his Honour said, and the applicant’s offending was ‘a gross breach of the trust that she implicitly placed in him as her father’.[7]
[7]DPP v [Lugo] (Unreported, County Court of Victoria, Judge Gamble, 22 February 2019) [71] (‘Reasons’).
As Maxwell P and McLeish JA said in Director of Public Prosecutions v Walsh (a pseudonym),[8] sexual offending by a parent involves
a breach of trust of the most fundamental kind, and an inexplicable abdication of parental responsibility. Just as seriously, it involves a cynical exploitation by the parent of the opportunity for sexual contact which being in that position of trust presents.[9]
And the impact on the child is likely to be profound and lifelong. The sexual abuse deprives the child of the right to sexual autonomy and integrity, destroys the innocence of childhood and leaves the child with deep emotional and psychological injury.[10] It also causes great distress to the other members of the family.
[8][2018] VSCA 172 (Maxwell P, McLeish and Ashley JJA).
[9]Ibid [1] (citations omitted).
[10]See, eg, Fichtner v The Queen [2019] VSCA 297, [66] Maxwell P and Kaye JA).
There is, of course, a significant difference between the sentence imposed on charge 3 and that imposed, for the same offence, on charge 2. As explained below, however, the only question for consideration in relation to the sentence on charge 3 — there being no suggestion of specific error in the interpretation of the standard sentence provisions — is whether the sentence was outside the range reasonably open in the circumstances, proper weight being given to all of the relevant matters including the standard sentence.[11] As the respondent correctly pointed out, it is only by addressing that question that the Court can deal with the applicant’s contention that the judge gave the standard sentence too much weight.[12]
[11]Clarkson v The Queen (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157.
[12]DPP v Terrick (2009) 24 VR 457, 459 [5] (Maxwell P, Redlich JA and Robson AJA); [2009] VSCA 220.
In our view, it was reasonably open to the judge to impose the sentences which he did. Specifically, we consider that the sentence of 4 years and 4 months imposed on charge 3 was within the range reasonably open, proper weight having been given to the standard sentence amongst other relevant factors. That it was substantially greater than the sentence on charge 2 does not indicate error. It does mean that the sentence on charge 2 can be regarded as relatively lenient, but that does not affect the outcome.
The circumstances of the offending
The offending alleged in charge 3 is said to have occurred on 17 February 2018, at which time K was 11 and the applicant was 48. On that evening, K’s mother, the applicant’s wife, went out to visit a friend. K was in her bedroom. Her brother (R) was in his. At about 9:00 pm, the applicant entered K’s bedroom under the guise of saying ‘goodnight.’ Instead, he knelt beside K’s bed and kissed her, first on the cheek and then with an open mouth on her lips, during which he inserted his tongue into her mouth.
The applicant placed his arms around K. She tried to push him away with her hands, but was unsuccessful due to the tightness of his grip. Undeterred, the applicant proceeded to pull down the right strap of K’s top and kissed her right nipple and breast area. That act of kissing K on the breast was the basis of charge 3 (sexual assault of a child under 16).
The applicant then kissed K on her lips with an open mouth, before placing his hand down the front of her pyjama shorts and inside her underwear. He then put his hand on K’s vagina and left it there. That act of touching K on the vagina forms part of charge 2, which is a representative charge of sexual assault of a child under 16. The applicant then kissed K’s right nipple and breast area again, which is relied on as part of the narrative for the earlier act, the subject of charge 3.
At one stage, R got out of bed and ‘peeked’ through an opening in K’s bedroom door. He saw his sister on the bed and his father on his knees in front of her. He could see only one of his father’s arms. R then returned to bed, and the applicant left K’s room a short time later.
When the applicant’s wife returned home at about 11:30 pm, she went into K’s bedroom to check on her. K was awake and proceeded to tell her mother something of what had occurred earlier that night, and more generally. K was crying and said to her mother that her father had ‘touched her chest … under clothing’ and that it had been going on ‘for two or three years’.
When the applicant’s wife confronted him about what K had alleged, the applicant initially said nothing, but when she asked him what he was doing, he told her that he had been kissing K and touching her shoulders and legs. When his wife tried to get him to tell her more, he refused to answer her questions. When she asked him how long it had been happening for, the applicant told her ‘about a year’.
The applicant’s wife then told the applicant to leave the house and called the police. The police arrived at approximately 1:40 am. They spoke to K and arrangements were made for her to participate in a VARE interview later that day.
At 5:33 am, police located the applicant not far from the family home. When they asked him what had happened earlier in the night, the applicant said, ‘I got a little too close to my daughter’. The applicant was then arrested and taken to the local police station for interview. Before being interviewed, the applicant was asked if he knew why he was under arrest. His response was: ‘An inappropriate relationship with my daughter’.
After receiving legal advice, the applicant chose to exercise his legal rights by answering ‘No comment’ during the subsequent police interview and by refusing to provide a forensic sample on request.
On 18 February 2018, K participated in a VARE interview with police. In addition to describing the events of the previous night, K described an earlier incident in November 2017, when the applicant went into her bedroom and took his shirt off while she was in her bed. After the applicant knelt beside K’s bed, he inserted his tongue into her mouth and then put his hands down her pants and touched her vagina. That act also forms part of charge 2, which is a representative charge of sexual assault of a child under 16.[13]
[13]Alleged as particular 2 of 2 in the base incident for sentencing.
K described a further incident that had occurred some time between 1 November 2016 and 30 June 2017, when the applicant grabbed K’s hand and put it against his penis saying, ‘Just hold it’. K was unable to recall whether that contact was made under or over the applicant’s clothing. It is that act which forms the factual basis for the offence of indecent act with a child under 16 alleged in charge 1 on the indictment.
K told police that the applicant’s offending against her began when she was six or seven and continued for a number of years. She said that the applicant usually offended when her mother was not home and that it occurred in her bedroom, her parents’ bedroom and at a local swimming pool. On some occasions, the applicant removed his shirt and shorts and, on one occasion, he took off his underwear. K remembered having seen the applicant’s penis ‘once or twice a month’.
The applicant was sentenced as follows:
Charge
Offence
Maximum
Sentence
Cumulation
1.
Indecent act with a child aged under 16
10 years
2 years
9 months
2.
Sexual assault of a child aged under 16
10 years
2 years and 6 months
9 months
3.
Sexual assault of a child aged under 16
10 years
4 years and 4 months
Base
Total effective sentence: 5 years and 10 months’ imprisonment Non-parole period: 3 years and 11 months’ imprisonment Pre-sentence detention declared: 87 days Section 6AAA statement: Total effective sentence of 7 years 6 months’ imprisonment with a non-parole period of 5 years Other relevant orders and declarations:
· Notation pursuant to s 6F of the Sentencing Act 1991 that the applicant was sentenced as a serious sexual offender in respect of charge 3;
· ordered pursuant to s 464ZF(2) of the Crimes Act 1958 to undergo a forensic procedure for the taking of an intimate sample consisting of a scraping of the mouth; and
· pursuant to s 34 of the Sex Offenders Registration Act 2004 the length of the reporting period is life.
The grounds of appeal
The grounds of appeal are as follows:
1.The sentencing judge erred in the application of the standard sentencing provisions of the Sentencing Act 1991 by finding that the objective circumstances of Charge 3 [were] in the ‘mid-range level’.
2.The sentencing judge erred by imposing a sentence of 4 years 4 months’ imprisonment on the standard sentence offence and by doing so gave the standard sentence impermissible weight in the instinctive synthesis.
3.The sentencing process miscarried because a series of uncharged acts were placed before the sentencing judge and were relied upon by the sentencing judge when sentencing the applicant in circumstances when such uncharged acts were not part of the particulars of the representative charge or charged offences and should not have been before the sentencing judge as uncharged acts.
4.The sentences imposed on the charges of indecent act with a child under the age of 16 years of age and two charges of sexual assault of a child under the age of 16, the non-parole period and the orders for cumulation:
(i)were manifestly excessive; and
(ii)outside the range of sentences reasonably open in the circumstances of the offence and the offender; and
(iii)resulted in a total effective sentence and non-parole period that was manifestly excessive.
Assessing the seriousness of the offences
As noted earlier, the offence the subject of charge 3 was a ‘standard sentence offence’. The first ground of appeal contends that the judge erred in his assessment of the seriousness of that offence. His Honour concluded that its seriousness should be assessed ‘as being mid-range level’.[14] In expressing his conclusion in these terms, the judge was following the approach adopted at first instance in R v Brown,[15] based on what were then understood to be the requirements of the standard sentence scheme.
[14]Reasons [73].
[15][2018] VSC 742 (Champion J).
The prosecutor had submitted to his Honour that it was necessary for him to assess the relative seriousness of the offence by comparison with the hypothetical offence for which, according to the standard sentence provisions, the standard sentence would be appropriate, that is,
an offence that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness.[16]
[16]Sentencing Act 1991 s 5A(1)(b).
For the reasons given by this Court in Brown v The Queen,[17] that comparative assessment was neither authorised nor required by the standard sentence provisions. The judge’s obligation to assess the seriousness of the subject offence was, the Court said, unaffected by the standard sentence provisions.[18] Judges sentencing for standard sentence offences ‘should continue to assess offence seriousness in the conventional way, taking into account both objective gravity and moral culpability.[19]
[17][2019] VSCA 286 (Maxwell P, Priest, Kaye, T Forrest and Emerton JJA).
[18]Ibid [7].
[19]Ibid [55].
The sentencing judge in R v Brown[20] had, likewise, undertaken a comparative assessment ‘taking into account only the objective factors’. The Court concluded that, although his Honour had gone beyond what was required by the provisions, this misapprehension had not affected his Honour’s assessment of the seriousness of the offending. The same can be said, in our view, of the assessment undertaken by the judge in the present case.
[20][2018] VSC 742.
In assessing the seriousness of the offending the subject of charge 3, his Honour said:
In this case, I am satisfied that the factors relevant to assessing the objective gravity of the offending in charge 3 include the following:
a)the offender was the complainant’s biological father;
b)the complainant was quite young and very vulnerable;
c)the offender used his position of authority over the complainant in order to commit the offence and that offence represented a gross breach of the trust that she implicitly placed in him as her father;
d)the immediate surrounding context to the subject offence demonstrates persistence on the offender’s part and the subject act of kissing the complainant’s breast was engaged in despite her earlier attempts to push him away from her;
e)the subject offence involved an element of planning, taking place as it did while her mother was away from the family home; and
f)it also involved a separate and serious breach of the trust that his wife placed in him to care for her daughter while she was not present.[21]
[21]Reasons [71].
As counsel for the applicant conceded in this Court, these matters were all properly to be regarded as aggravating factors. His Honour rejected a defence submission that this offence should be viewed as ‘opportunistic and of short duration’. His Honour said:
In my view that does not accurately capture the nature of this offence.
[The applicant] chose to offend as he did, when his wife was absent from the family home. That was not a mere coincidence or wholly opportunistic; it involved some planning on his part. Furthermore, the description ‘short duration’ is a relative one and ignores the nature of the act itself and the surrounding context. The argument to the effect that there could have been even more aggravating features to the offending than there already were, was not of great assistance in the scheme of things.[22]
[22]Ibid [74].
According to the applicant’s written case filed in this Court, the judge erred by failing to concentrate on ‘the nature or character of the acts’ that formed the basis of charge 3. The matters which his Honour listed did not, it was said, refer to the specific acts (the kissing of the mouth, the pulling down of the strap and the kissing down of the nipple and breast area). Instead, according to the submission, the judge concentrated on ‘the meaning and interpretation’ of the conduct. As a result, he had not fully identified ‘the facts, matters and circumstances’ relevant to the assessment of objective seriousness.[23]
[23]Muldrock v The Queen (2011) 244 CLR 120, 132 [29] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ); [2011] HCA 39.
In our respectful opinion, the judge was entirely correct in his identification of the factors relevant to assessing the objective gravity of the offending. It was those factors — the parental relationship, the abuse of authority, the breaches of trust, the planning, the persistence — which were essential to an understanding of why this offence was so serious, and the applicant’s moral culpability so high. It was those factors which meant that this instance of sexual assault was in an altogether different category of seriousness from a similar assault which lacked those features, although kissing a child on the breast after she has attempted to resist should always be regarded as very serious, in our view.
In addition to the breaches of the trust reposed in him by his daughter and his wife respectively, the applicant’s planning and his persistence in the face of his daughter’s resistance were significant aggravating factors. This was plainly not opportunistic offending. It was rather to be characterised as predatory. The applicant waited until he could exploit the opportunity for sexual contact which his position as K’s father gave him. He preyed on her for his own sexual gratification.
Ground 2 contends that the sentence on charge 3 showed that the judge had given the standard sentence impermissible weight in the instinctive synthesis. This was said to be so because:
·the sentence exceeded the standard sentence by four months;
·the objective gravity of the offence ‘would never justify a sentence of this magnitude’;
·charge 2 was for the same offence, and was representative in nature, yet a substantially lower sentence was imposed.
The sentencing judge set out in his reasons how he proposed to take the standard sentence of four years into account. He said he would treat it:
as one of the factors relative to my ‘intuitive synthesis’, along with all the other factors that are relevant to my consideration of the appropriate sentence for the offence alleged in charge 3.
The standard sentence is but one of the factors to be considered under s 5(2) of the Sentencing Act 1991 and does not have primacy in the exercise of my sentencing discretion.
…
The standard sentence is a guidepost for the Court to consider. The scheme does not ‘require’ the standard sentence to be imposed or to be viewed as a starting-point’.[24]
As the decision in Brown subsequently confirmed, this approach accorded precisely with what the provisions required.[25]
[24]Reasons [65]–[67] (citations omitted).
[25][2019] VSCA 286, [4] (Maxwell P, Priest, Kaye, T Forrest and Emerton JJA).
For the reasons already given, we reject the contention that the objective gravity of this offence ‘would never justify’ a sentence of this magnitude. What, then, of the differential of 22 months between the sentence on charge 2 and the sentence on charge 3? For the purposes of the comparison, we would accept the Director’s submission that it is neither necessary nor appropriate to ‘grade’ the conduct involved in the assaults according to which part of K’s body the applicant touched. As counsel submitted, any sexual touching of a child by a parent or guardian is to be viewed as very serious. In the present case, in our view, what matters is not the particular part of the body but the intimacy of the conduct — accompanied as it was on each occasion by kissing on the lips — and the fact that it was being engaged in by the very person in whom K had placed her trust.
For those reasons, we would regard the two sexual assault charges as of comparable seriousness, as to both objective gravity and the applicant’s culpability. The fact that charge 2 was a representative charge was certainly a point of distinction, but not of great significance in the circumstances.[26]
[26]See Crouch (a pseudonym) v The Queen [2019] VSCA 30, [36] (Kyrou and Weinberg JJA).
The explanation for the sentencing differential is likely to be found in the two matters identified by the Court in Brown, which distinguish sentencing for standard sentence offences.[27] First, the judge was required — in relation to charge 3 but not charge 2 — to take into account that four years’ imprisonment was the standard sentence prescribed for an offence of sexual assault that fell objectively within the ‘middle of the range’ for such an offence. Secondly, the judge was precluded — in relation to charge 3 — from taking into account sentences for sexual assault that predated the introduction of the standard sentencing scheme. In relation to charge 2, on the other hand, his Honour was obliged to have regard to those sentencing practices, as he noted in his reasons.
[27]Ibid [110] (Maxwell P, Priest, Kaye, T Forrest and Emerton JJA).
Before turning finally to the manifest excess ground, it is necessary to deal with ground 3, which concerns uncharged acts.
Ground 3: uncharged acts
In the usual way, the prosecutor read out to the court the Summary of Prosecution Opening (‘Summary’) at the commencement of the plea hearing. The Opening included a paragraph setting out the matters which are now in paragraph 20 above. Those matters were set out in the sentencing reasons.[28]
[28]Reasons [21].
Defence counsel appearing on behalf of the applicant at the plea hearing took no issue with the reference to those uncharged acts. Indeed, as the respondent pointed out, defence counsel accepted the Summary as ‘an agreed summary of facts for sentencing purposes’.
In this Court, counsel for the applicant (who did not appear on the plea) submitted that — despite defence counsel’s unqualified acceptance of the Summary — the judge should have sought an explanation from the parties for the inclusion of the uncharged acts. The purpose of providing context was served, it was said, by charge 2 being a representative charge. The uncharged acts were ‘distant in time and space’ from the charged acts and, counsel submitted, the reference to there having been offending from the time when K was six or seven ‘cannot but have had some effect on the sentencing process’.
In our view, there is nothing in this ground. It is unsurprising that defence counsel made no objection to the Summary. The uncharged acts were relevant to show the full context of the applicant’s behaviour, which the judge rightly considered as being relevant to specific deterrence and community protection. As the applicant’s counsel properly conceded in this Court, there is nothing in the reasons for sentence to indicate that the uncharged acts were given any greater weight or prominence than was appropriate.
Ground 4: manifest excess
Under this ground, the applicant contended that the individual sentences, the total effective sentence and the non-parole period were all manifestly excessive. His written case identified the following matters which had been relied on in mitigation:
(d) his early plea of guilty;
(e) his having made some admissions when first confronted with the allegations;
(f) his acceptance of ‘personal and legal responsibility’ for what he had done;
(g) his genuine remorse;
(h) his prior good character and the absence of prior convictions;
(i) his excellent employment history and strong work ethic;
(j) his having voluntarily engaged in psychological treatment and counselling, and having expressed the intention to continue to do so;
(k) his prospects of rehabilitation being reasonable.
As to mental health, the expert evidence before the sentencing judge was that, at the time of the offending, the applicant was suffering from what was then ‘an undiagnosed and untreated major depressive disorder of at least moderate severity’. It was not suggested, however, that there was any causal connection between that disorder and the offending. As recorded in the judge’s reasons, the expert’s opinion was that incarceration would be likely to lead to a deterioration in the applicant’s mental health, as he would be ‘confronted yet again with the full magnitude of [his] offending and with the consequences of that offending’ for himself.[29]
[29]Reasons [38].
For the reasons already given, these were very serious sexual offences committed by the applicant against his young and vulnerable daughter, and his culpability was very high. As counsel for the Director correctly submitted, the matters of aggravation which the judge identified in relation to charge 3 applied with equal force to the other charges (except that charge 1 did not involve the applicant overriding K’s resistance). Moreover, as the Director also submitted, there was nothing put in mitigation which reduced the applicant’s moral culpability. He was ‘an intelligent and well-educated man, who chose to inflict significant harm on his young daughter and family, to obtain momentary sexual gratification’. Counsel for the applicant advanced no submission to the contrary.
The judge’s unchallenged finding was that specific deterrence was a relevant factor, given the context of the offending behaviour, the seriousness of the offending, and the fact that the applicant still presented as a risk of reoffending and required further treatment.[30] For essentially the same reasons, his Honour said, protection of the community was an important sentencing consideration when assessing the appropriate penalty for the offences alleged in charges 1 and 2.[31] As the applicant fell to be sentenced as a serious sexual offender on charge 3, community protection had to be treated as the principal purpose of sentencing for that offence.[32]
[30]Reasons [89].
[31]Ibid [90].
[32]Ibid.
In his Honour’s view, the principles of general deterrence and denunciation assumed ‘considerable significance’ in relation to all of the offences. His Honour said:
The community is justifiably concerned about the destructive nature of sexual offending against its youngest and most vulnerable members, especially when the perpetrator is in a position of trust and influence over the victim. The community expects the courts sentencing such offenders, to impose stern sentences in order to discourage others contemplating acting in a similar way, from doing so and in order to validate the community’s values.[33]
The applicant took no issue with these statements which, with respect, were plainly correct.
[33]Ibid [88].
For those reasons, in our opinion, the sentences which the judge imposed were within range. Specifically in relation to the sentence on charge 3, we consider that it was reasonably open to the judge to impose a sentence of 4 years and 4 months’ imprisonment, proper weight being given to all of the relevant factors including the standard sentence. In view of the differential between the sentences on charge 2 and charge 3, which invited scrutiny, we would grant leave to appeal on grounds 2 and 4 but, for the reasons given, would dismiss the appeal.
Charge 2: representative or rolled-up?
We deal finally with a matter which arose during the Court’s preparation of reasons for judgment, and on which the Court sought and received helpful submissions from the parties. What follows are our conclusions, arrived at in the light of those submissions.
Charge 2 was described as a representative charge. That was the description used in the indictment, in the Summary and in the sentencing reasons. On closer examination, however, that characterisation was quite inappropriate. Charge 2 should have been treated as a rolled up charge.
As the authorities make clear, a representative charge is a single instance of conduct that occurred in a wider context.[34] Here, charge 2 was said to have two parts, or particulars, each constituting a separate offence. That is, two offences were ‘rolled up’ into one charge which, of course, can only occur with the consent of the defence.
[34]DPP v Jones(a pseudonym) (2013) 40 VR 267 [80] (Redlich, Priest JJA and Robson AJA; [2013] VSCA 330.
Thus, the Summary describes the 17 February sexual assault as ‘particular 1 of 2’ and the November sexual assault as ‘particular 2 of 2’. Further, the judge in his reasons stated that the February assault ‘forms part of charge 2’ and that the November assault ‘also forms part of charge 2’.
Further, this resulted in a degree of artificiality, as follows. Part of what occurred on 17 February (charge 3) was treated as subject to the standard sentence scheme, while another part of what occurred on that date was — by being linked with the November assault as ‘part of’ charge 2 — treated as part of an offence to which the standard sentence scheme did not apply.
We are quite satisfied, however, that nothing needs to be done to correct this
misdescription. The charge was not invalid and, most importantly, the parties proceeded, and the judge sentenced the applicant, on the basis that it was a representative charge. It is to be assumed that the defence accepted the form of the charges to which the guilty pleas were entered.
In our view, it would be a rare circumstance where intervention was warranted ‘to alter the formal or juridical basis of the plea agreement by means of hindsight analysis’. In the present case, the characterisation of charge 2 as a representative, rather than a rolled-up, charge inured to the applicant’s benefit. Plainly enough, therefore, no intervention is called for.
PRIEST JA:
Introduction
Although one cannot be categorical or absolute, generally speaking — and all other things being equal — an indecent or sexual assault of a 10 or 11 year old female child constituted by physical contact with the child’s vagina will objectively be more serious than physical contact with the child’s chest.[35] Thus, although I agree with the general observations in the majority reasons that any ‘sexual touching’ in circumstances such as those present in the instant case are to be viewed as serious, and that the ‘intimacy’ of the conduct will be important, I am unable to agree — insofar as the majority reasons may be interpreted as laying down so much as a general proposition — that the ‘particular part of the body’ with which contact is made matters not.[36]
[35]See Ibbs v The Queen (1987) 163 CLR 447, 451–2 (Mason CJ, Wilson, Brennan, Toohey and Gaudron JJ).
[36]See [34] above. Compare [30].
Of course, it is not difficult to imagine circumstances where sexual touching of a child’s chest area may objectively be more serious than contact with her vagina. Thus, by way of example only, premeditated sexual contact with a child’s chest area as part of a planned grooming or seduction might generally be regarded as objectively more serious than a fleeting and opportunistic touching of the vaginal region over clothing. At the risk of resorting to an overworked truism, every case must be determined on its particular facts.
Having regard to the facts of the present case, I consider the circumstances of charge 2 — a supposedly ‘representative’ charge involving two incidents of touching K’s vagina — as objectively more serious than the circumstances of charge 3, yet charge 2 attracted a sentence of two years and six months’ imprisonment, and charge 3 a sentence of four years and four months’ imprisonment. At first blush the individual sentences on charges 2 and 3 appear to be discrepant (if not incongruous). And, indeed, further examination and analysis of the circumstances surrounding the two charges has persuaded me that the exercise of the sentencing discretion on charges 2 and 3 has gone gravely awry.
It is clear to me that the principal source of difficulty in this case has flown from the prosecution’s erroneous characterisation of charge 2 as a representative charge. Proper understanding of its foundational facts leaves no doubt that charge 2 could not have been a representative charge. If anything — and bearing in mind the issue of duplicity — charge 2 could only validly have been a ‘rolled-up’ charge. Importantly, I regard it as likely that the erroneous characterisation of charge 2 influenced the manner in which the standard sentencing scheme was applied with respect to charge 3, and resulted in a manifestly excessive sentence on that charge.
The offending conduct
The applicant’s offending came to light when K, who was born in November 2006, made a complaint to her mother upon her mother’s return home at about 11.30 pm on 17 February 2018. Police conducted a VARE[37] with K the next day, commencing at 11.37 am.
[37]Video and audio recorded evidence. See Criminal Procedure Act 2009, s 367; and Criminal Procedure Regulations 2009, Part 2.
As K described it in her VARE on 18 February 2018, the applicant’s offending had three main facets: first, the applicant procured K to touch his penis (charge 1); secondly, the applicant touched K’s vaginal area on two occasions (charge 2); and, thirdly, the applicant kissed K’s chest area (charge 3). Other conduct associated with the charged offending included open-mouthed and tongue kissing.
The first facet of the applicant’s offending was the basis of charge 1. K’s description of the events constituting charge 1, an indecent act with or in the presence of a child under the age of 16 years[38] committed between 1 November 2016 and 30 June 2017,[39] occurred in the latter stages of her interview with police. She described touching her father’s penis on one occasion as follows:
Well, he said – he grabbed my hand and – and put it against there and then he said, ‘Just hold it’, and, yeah, I held it but then he just took it away and then did something else and I forgot what – well, I don’t really know what that next thing was.
[38]Crimes Act 1958, s 47(1). The maximum penalty is 10 years’ imprisonment.
[39]Section 47(1) was effectively repealed by s 16 of the Crimes Amendment (Sexual Offences) Act 2016, which substituted Subdivisions (8C) of Division 1 of Part I of the Crimes Act 1958, with effect from 1 July 2017.
Charge 2, sexual assault of a child under 16 years,[40] embraced the second facet of the applicant’s offending, and was based upon two occasions that the applicant touched K in the area of her vagina. The first of those two occasions related to conduct in November 2017; and the second, in the evening of 17 February 2018, formed an intrinsic part of the episode which comprehended kissing K’s chest (that conduct being the basis of charge 3). K, in the course of the VARE interview, having described the circumstances of the conduct the previous evening, told the interviewing police that the applicant ‘does put his hand down my pants a lot’. She said that she remembered an occasion in November the previous year. K said that the applicant had kissed her with his tongue in her mouth, and, kneeling on the side of her bed, put his hands down her pants ‘for a lot longer than last night’.
[40]Crimes Act 1958, s 49D(1). The maximum penalty is 10 years’ imprisonment.
The third facet of the applicant’s offending, kissing K’s chest area, was the basis of charge 3, also a sexual assault of a child under 16 years. Importantly, this conduct also occurred in the course of the episode in the evening of 17 February 2018, and was closely bound up with one of the two episodes of touching founding charge 2. K told police that the applicant came into her room and knelt beside her bed. He kissed her on the cheek, then on the mouth, inserting his tongue. The applicant then pulled down the ‘spaghetti strap’ of K’s top, and kissed her in the chest area. He kissed her again, and put his hand under her underwear and shorts. The applicant touched her ‘rude bit’, but ‘wasn’t doing much actually’, he ‘just had it there’. Although it is not clear precisely what conduct she was referring to, K told police that ‘it started when [she] was six or seven so it was about four and a bit years … that it’s been going on for’.
The characterisation of charge 2 as a representative charge
In the course of her opening before the sentencing judge, the prosecutor dealt with the circumstances of charge 2 as follows:[41]
At about 9 pm [on 17 February 2018], the [applicant] entered [K’s] bedroom and knelt beside her bed to say goodnight. He kissed her on the cheek and then kissed her with an open mouth on her lips. He inserted his tongue into her mouth. He placed his arms around her and she attempted to push the offender away with her hands but wasn’t able to do so because of his tight grip on her.
He pulled down the right strap of her top and kissed her right nipple and breast area. Charge 3.
He again kissed her on her lips with an open mouth. He placed his hand down the front of her pyjama shorts and inside her underwear. He put his hand on her vagina and left it there. This is Charge 2, part of the representative charge and the base incident for sentencing. Then he kissed her right nipple and breast area again.
…
On 18 February 2018, the complainant participated in a VARE conducted by Detective Foster. [K] gave an account of the offences which had occurred the night before. She also gave an account of a previous time in November 2017 when she was in bed. He came in and took off his shirt. He was kneeling on the side of the bed and inserted his tongue into her mouth and put his hands down her pants and touched her vagina. That’s part of Charge 2, particular two of two.
[41]The Particulars subjoined to charge 2 in the Indictment included: ‘Note that Charge 2 is a Representative Charge’.
Counsel for the applicant did not query the prosecutor’s characterisation of charge 2. Indeed, in the course of her plea, she made the following submission:
It’s conceded that [Charge 2 as] a representative charge, stands out in [scil, when] compared to the other two charges. It’s relevant on a two-fold basis. Firstly, it demonstrates in general terms the absence of any mitigating factors – or a mitigating factor I should say – it allows the court to see the offending in its full context.
The judge accepted that charge 2 was a representative charge. Thus, in his reasons for sentence he remarked:
Count 2 alleges an offence of sexual assault of a child under 16 years and carries a maximum penalty of 10 years’ imprisonment. It is important to note that this is a representative charge, not a rolled up charge, given the important difference as between those two types of charges. But as your counsel appropriately acknowledged in her written submissions, the representative nature of this charge precludes it being said by way of mitigation, that the offence for which you fall to be sentenced was isolated and allows the court to consider your offending in its full context.
Charge 2 was not a representative charge
Although it was accepted before (and by) the sentencing judge that charge 2 was a representative charge, and that characterisation initially was not challenged in this Court, charge 2 was in reality a ‘rolled-up charge’. There is an essential difference between the two kinds of charge. A representative charge relates to a single instance of criminal conduct occurring in a broader context, whereas a rolled-up charge bundles more than one instance of offending into a single charge.[42] As was said in DPP v Jones (a Pseudonym):[43]
The essential difference between a representative charge and a rolled-up charge is that the representative count is a single instance of conduct which occurred in a wider context, but a rolled-up charge envelops more than one offence under the umbrella of a single charge. Charles JA described the difference between a representative count and a rolled-up count in Jones:[44]
… [Counsel for the applicant] submitted that where an offender is to be sentenced in respect of an offence which is representative of a number of offences, the sentencing judge is not entitled to impose a sentence in respect of other crimes, but may take such other crimes into account in determining whether or not the offence for which the offender is being sentenced is an isolated offence. He submitted that in sentencing on a rolled-up count the discretion is to be exercised in the same way as it is when a count is treated as a representative count. …
I do not accept the submission that in sentencing on a rolled-up count the discretion is to be exercised in the same way as when a judge is sentencing on a representative count. It is of course correct that when sentencing on a representative offence the judge is not entitled to impose sentence in respect of other crimes. But in my view, a rolled-up count is entirely different from a representative count. In [counsel for the respondent’s] written submissions for the Crown, it was submitted, I think correctly, that rolled-up counts are a collection of counts bundled together into a single count, a procedure which can only occur by agreement with the defence and only for the purpose of a plea of guilty. If a rolled-up count were not included by agreement with the defence (demonstrated as here by the plea of guilty) the count would be vitiated for duplicity. [Counsel for the respondent] argued that reasons of public policy dictate the use of rolled-up counts on a plea of guilty to avoid burdening the presentment with multiple counts. The practice simplifies the task of the sentencing judge and works to the advantage of the prisoner. In the present case, for example, the filed-over presentment contained count 28, rolling up 24 discrete offences of theft which had appeared in separate counts on the original presentment. The use of rolled-up counts operates considerably to the advantage of an accused who intends to plead guilty. For in this case on the original presentment there were 24 counts of theft, for each of which the maximum sentence was ten years, providing a theoretical maximum sentence of 240 years. The compression of these counts into a single count of theft not only considerably eased the task of the sentencing judge, but may be thought by an appellant to give him a considerable benefit in return.
[42]I note that it has not been suggested that charge 2 could have been charged as a ‘course of conduct’ charge. See Criminal Procedure Act 2009, Schedule 1, cl 4A, and ss 64A and 181A.
[43]DPP v Jones(a Pseudonym) (2013) 40 VR 267, 286–7 [80] (Redlich and Priest JJA) (citations as in the reported version).
[44]R v Jones [2004] VSCA 68 at [12]–[13] (citations omitted; emphasis added). See also R v Beary (2004) 11 VR 151 at 156-7 [11]–[14] per Callaway JA. See also Reid (a Pseudonym) v The Queen (2014) 42 VR 295, 307–8 [73]–[74].
The difference between the representative and rolled-up charges is one of substance, not merely of form. A rolled-up charge — which would otherwise be bad for duplicity — captures more than one instance of offending, and may only be included on an indictment by the agreement of the accused and only for the purposes of a guilty plea.[45] On the other hand, a representative charge relates to a single instance of offending, which is viewed against a background of other uncharged offending. The fact that a charge is a representative charge is relevant to sentence in at least two ways. First, since the accused cannot claim that the charged offence was an isolated event, it represents the absence of a mitigating factor. Secondly, a sentencing judge must look at the conduct represented by the charge in order to judge the offending in its full context.[46]
[45]The origin of such a charge in Victoria can be traced to R v Coombs (Unreported, Victorian Court of Criminal Appeal, 3 September 1979) (‘Coombs’).
[46]See R v SBL [1999] 1 VR 706; R v GLH [2008] VSCA 88; R v RGG [2008] VSCA 94; R v CJK (2009) 22 VR 104; R v LJF [2009] VSCA 134; DPP v CPD (2009) 22 VR 533, 542 [38]; Reid (a Pseudonym) v The Queen (2014) 42 VR 295, 308 [75].
Plainly, charge 2 was not a representative charge. It did not relate to a single instance of conduct that occurred in a wider context, but rather to two separate instances of similar conduct. The practical consequences of incorrectly characterising charge 2 as a representative charge include the following. First, given that the standard sentencing scheme introduced by the Sentencing Amendment (Sentencing Standards) Act 2017 applies only to offences committed after 1 February 2018,[47] that part of the applicant’s conduct included in charge 2 constituted by touching K’s vaginal area in November 2017 was not caught by the standard sentencing scheme. Secondly, quite artificially, as a result of charge 2 being alleged to embrace two separate (but temporally separated) instances of similar conduct, the applicant’s touching of K’s vaginal area during the evening of 17 February 2018 — which otherwise would have fallen within its ambit — also was not caught by the standard sentencing scheme. Thirdly, by artificially putting the conduct in charge 2 beyond the reach of the standard sentencing scheme, the sentencing task on charges 2 and 3 became unacceptably skewed.
[47]See Sentencing Act 1991, s 162.
Further submissions
On 13 February 2020, well after oral argument had concluded on 6 November 2019, the Court through the Registrar drew the parties’ attention to the fact that charge 2 might more correctly be characterised as a rolled-up — not a representative — charge. Submissions were invited in effect as to whether, and how, that characterisation might have affected the operation of the standard sentencing scheme in this case, and, ultimately, the sentence imposed on the applicant.
In the Respondent’s Further Submissions, provided in response to the Court’s invitation, counsel for the respondent demurred to the proposition that charge 2 was a rolled-up charge, and held fast to the argument that charge 2 was a representative charge. The respondent’s counsel submitted in any event that it is ‘quite unfair to an accused person to alter the formal or juridical basis of the plea agreement by means of hindsight analysis unless the position is free of any conceivable doubt’; and that ‘the process of charging might have been approached differently, but that is often the case especially where the end result reached is, no doubt, the product of a negotiated plea settlement’.
Counsel for the applicant, in their further written submissions, agreed that charge 2 is properly characterised as a rolled-up charge, and with the notion that there is a degree of artificiality in the nexus between charge 2 and charge 3. They submitted that there is also a further question as to whether, as a matter of law, the two charges can stand together ‘in such a “hybrid” manner’. Counsel submitted that issues of duplicity[48] and double punishment[49] may make the original framing of charge 2 on the indictment defective and make the original guilty plea, in effect, a nullity; and if that is so, and if the Court as a matter of law finds that to be so, the question arises as to what power this Court has to remedy a defective plea indictment — and associated guilty plea — that is before it.[50]
[48]Counsel cited S v The Queen (1989) 168 CLR 266, 284 (Gaudron and McHugh JJ), and Walsh v Tattersall (1996) 188 CLR 77.
[49]Counsel cited Pearce v The Queen (1998) 194 CLR 610.
[50]Counsel cited Maxwell v The Queen (1996) 184 CLR 501, 522 (Toohey J).
Notably, the applicant’s counsel made no distinct submission that charge 2 was duplicitous, or that the applicant had been doubly punished, or that the framing of charge 2 was defective, or that the original plea of guilty was a ‘nullity’. Instead, counsel left it to the Court to answer the questions posed, unaided by any analysis.
Counsel for the applicant submitted that it ‘appears that there are three possible ways to remedy the defective plea indictment in this case’. First, the Court might grant an extension of time to the applicant to appeal against his conviction on charge 2 on the basis that the charge is ‘duplicitous, uncertain and bad at law’, and ‘substitute’ a new charge 2, thereby removing the impermissible ‘overlap’ between charges 2 and 3. Secondly, the Court could allow the appeal against conviction, and the respondent could file a new indictment that ‘amends’ charge 2. Thirdly, the Court could grant an extension of time to the applicant to appeal his conviction on charge 2, to allow the appeal and ‘remit that charge to the County Court so that it can be dealt with according to law’. The extant sentence application might then proceed in relation to charge 1 and charge 3. Significantly, however, beyond floating several possibilities, counsel for the applicant did not make any application to the Court, whether to challenge the conviction on charge 2 out of time or otherwise.
Discussion
Although hinted at in the Respondent’s Further Submissions, neither party sought to enlighten the Court as to how or why charge 2 came to be included in the indictment as a representative charge, when, quite plainly, it was a rolled-up charge. As I have said, its true character as a rolled-up charge is a matter of substance, not simply form — with respect, it is not merely a matter of ‘misdescription’[51] — since, as I have also observed, rolling two distinct offences into one charge (absent the consent of an accused) renders a charge bad for duplicity.
[51]See [53] above.
It may be assumed that the applicant’s counsel on the plea acquiesced in, or tacitly consented to, the inclusion of charge 2 on the indictment as formulated. But, given that it is clear from her submissions on the plea that she thought charge 2 to be a representative charge, it must be inferred that such acquiescence or tacit consent was prefaced on a misunderstanding of the true nature of the charge.
The majority in this Court have observed that it is clear that the parties proceeded, and the judge sentenced the applicant, on the basis that charge 2 was a representative charge.[52] So much cannot be gainsaid. The majority have also observed that this resulted in a degree of artificiality.[53] Again, so much cannot be gainsaid. I respectfully part company with the majority, however, with respect to their observations that ‘the charge was not invalid and, importantly, it is to be assumed that the defence accepted the form of the charges to which the guilty pleas were entered’.[54] Charge 2 may not have been ‘invalid’, but, in its present form it is bad for duplicity, and could only be cured by election and amendment. Further, as I have said, the acceptance of ‘the form of the charges’ by the defence clearly was prefaced on a misunderstanding as to the true nature of charge 2.
[52]See [51] above.
[53]See [52] above.
[54]See [53] above.
Since the seventeenth century, it has been a fundamental rule that no one count on an indictment may charge an accused person with committing two or more separate offences.[55] That basic rule is reflected in the provisions of the Criminal Procedure Act 2009. Section 159(3)(c) of the Act provides that an indictment must comply with Schedule 1. In turn, cl 5(2) of Schedule 1 makes it clear that, save for a course of conduct charge[56] — which charge 2 was not — the particulars of each offence charged on an indictment must be separately set out:[57]
(2) If more than one offence is charged in a charge-sheet or indictment, the particulars of each offence charged must be set out in a separate, consecutively numbered paragraph.
[55]S v The Queen (1989) 168 CLR 266, 284.
[56]See Criminal Procedure Act 2009, Schedule 1, cl 4A and cl 5(3) to cl 5(6).
[57]Rule 3(2) of the former Presentment Rules in the Sixth Schedule of the Crimes Act 1958 was as follows:
(2) Where more than one offence is charged in a presentment the particulars of each offence so charged shall be set out in a separate paragraph called a count.
Where more than one offence is joined in a single charge on an indictment the charge is bad for duplicity.[58] The charge is not a nullity, however, and may be cured by the prosecution making an election on which offence it is sought to proceed, and an amendment being made to strike out the other offence (or offences).[59]
[58]Walsh v Tattersall (1996) 188 CLR 77, 84 (‘Walsh’); S v The Queen (1989) 168 CLR 266, 284; DPP v Merriman [1973] AC 584, 607 (‘Merriman’).
[59]Byrne v Baker [1964] VR 443, 457.
The rule that a charge is bad for duplicity if more than one offence is joined within it allows for an exception in this State in the case of a rolled-up charge. That exception seems to have been first recognised in Coombs, a case in which eighty separate thefts were charged within four counts. Although his Honour referred to no authority permitting such a course, Young CJ said:
It was pointed out to us that it was unusual to lay the counts in that form but that it was done because there were a large number of offences alleged, altogether, we were told some eighty transactions, and since it was understood that the applicant would plead guilty it seemed more convenient that the matter be handled in this way.
Further, the applicant’s two acts founding charge 2 were not said to be a single activity of a continuing kind, in which case a single charge might have been legitimate.[60]
[60]Walsh, 86, 91, 107; Merriman, 495, 607.
In the present case I do not accept that the acquiescence or consent of the applicant’s counsel to the presence of the duplicitous charge on the indictment was the product of an informed decision. As I have said, counsel apparently failed to recognise that charge 2 was not in reality a representative charge. So much is plain from her submissions on the plea.
I consider that charge 2 is bad for duplicity. That duplicity has not been cured by election. And given the apparent lack of informed consent, it was not cured by counsel’s acquiescence.
Moreover, I do not agree with the majority view that the characterisation of charge 2 as a representative, rather than a rolled-up, charge enured to the applicant’s benefit, or that, plainly enough, no intervention is called for.[61] In my opinion, the presence of charge 2 on the indictment in its duplicitous form distorted the exercise of the sentencing discretion. Indeed, I consider that, had the prosecution been made to elect upon which offence involving vaginal touching in charge 2 it wished to proceed, then, depending on the election made, there is every prospect that a different sentence would have been imposed on charge 3.
[61]See [54] above.
Furthermore, I respectfully disagree with the view that the two sexual assault charges were of comparable seriousness so far as their objective gravity is concerned.[62] I regard the circumstances of charge 2, which involved touching the child’s vagina, as objectively more serious than the circumstances of charge 3. In my view, the circumstances of charge 2 — had that charge been caught by the standard sentencing scheme — would more appropriately have been considered to fall within ‘the middle of the range of seriousness’ of the offence of sexual assault of a child aged under 16. Indeed, I consider the sentence imposed on charge 3 — paying due regard to the standard sentence — to be wholly outside the range of those open in the proper exercise of discretion. I would set aside the sentence on charge 3, thereby opening up the whole of the sentencing discretion.
[62]See [35] above.
Conclusion
In light of the foregoing, grounds 1, 2 and 4 have been made out.
I would grant leave to appeal; allow the appeal; set aside the sentence imposed by the sentencing judge; and, in the very unusual circumstances of this case, remit the matter to the County Court to be dealt with in accordance with these reasons.[63]
[63]Criminal Procedure Act 2009, s 282(1)(b).
Substantially for the reasons given by the majority,[64] I would refuse leave to appeal on ground 3.
[64]See [38]–[41] above.
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