McIntosh (a pseudonym) v The Queen
[2018] VSCA 321
•4 December 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0136
| HUGH WILLIAM MCINTOSH (a Pseudonym)[1] | Appellant |
| v | |
| THE QUEEN | Respondent |
[1]To ensure there is no possibility of the identification of the victim of sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the appellant.
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| JUDGES: | PRIEST and BEACH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 3 December 2018 |
| DATE OF JUDGMENT: | 4 December 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 321 |
| JUDGMENT APPEALED FROM: | DPP v McIntosh (a pseudonym) [2018] VCC 940 (Judge Wilmoth) |
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CRIMINAL LAW — Sentence — Appeal — Incest and associated offences — Victim the appellant’s daughter — Offending of similar nature committed concurrently in different States — Total effective sentence of 6 years and 6 months’ imprisonment, with non-parole period of 4 years — Whether manifestly excessive — Totality principle — Appeal allowed — Total effective sentence of 4 years and 6 months’ imprisonment, with non-parole period of 2 years substituted — Mill v The Queen (1988) 166 CLR 59.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr M D Phillips | Victoria Legal Aid |
| For the Respondent | Ms S Flynn QC | Mr John Cain, Solicitor for Public Prosecutions |
PRIEST JA
BEACH JA:
Introduction
Pursuant to leave granted ‘on the papers’ by a judge of this Court, the appellant challenges a total effective sentence of six years and six months’ imprisonment, with a non-parole period of four years, imposed upon him for incest and related charges. The grounds of appeal contend, first, that the sentence is manifestly excessive; and, secondly, that the sentence imposed ‘failed to adequately reflect the totality principle’.
On 16 May 2018, the appellant pleaded guilty before a judge in the County Court to one representative charge of incest,[2] charge 2, and two charges of intentionally causing injury,[3] charges 1 and 3. Each charge arose in the context of a sexual relationship that the appellant maintained with his daughter between November 2003 and July 2007, both in Victoria and Queensland. As will be seen, the major difficulty in this case results from the appellant having been sentenced in Queensland in August 2010 for offences committed against his daughter and a niece in that State during the period of the sexual relationship.
[2]Crimes Act 1958, s 44(1). The maximum penalty is 25 years’ imprisonment.
[3]Crimes Act 1958, s 18. The maximum penalty is 10 years’ imprisonment.
Following a plea, on 21 June 2018 the judge sentenced the appellant to six years’ imprisonment on charge 2,[4] incest, and to 18 months’ and nine months’ imprisonment respectively on charges 1 and 3, intentionally causing injury. Four months of the sentence on charge 1, and two months of the sentence on charge 3, were ordered to be served cumulatively with the sentence in charge 2, producing the total effective sentence of six years and six months’ imprisonment, upon which the judge fixed a non-parole period of four years.[5] Pursuant to s 6AAA of the Sentencing Act 1991, the judge declared that, but for the plea of guilty, she would have imposed a sentence of nine years’ imprisonment, with a non-parole period of six years.
[4]The appellant was sentenced as a serious sexual offender on this charge. See Sentencing Act 1991, s 6F.
[5]Further, the appellant was registered under the Sex Offenders Registration Act 2004, with reporting for life. He was also ordered to provide a forensic sample under s 464ZF of the Crimes Act 1958, and a disposal order was made with respect to certain property.
For the reasons that follow, we consider that the sentence imposed infringed the principle of totality. The appeal will be allowed and the appellant will be resentenced in the manner later set out.[6]
[6]See [37] below.
The offending
As we have indicated, the relevant offending occurred between November 2003 and July 2007,[7] in the context of a sexual relationship that the appellant maintained with the complainant concurrently in Victoria and Queensland. For offences in Queensland arising out of that relationship (and for other offences), the appellant had previously been sentenced by a judge of the District Court in Brisbane on 25 August 2010 to eight years’ imprisonment, with a non-parole period of three years and six months.[8]
[7]Charge 2 on the indictment was that the appellant ‘between the 16th day of November 2003 and the 4th day of May 2007 took part in an act of sexual penetration with [the complainant] a person whom he knew to be his child in that he introduced his penis into the vagina of [the complainant]’.
[8]See [9] below.
When imposing sentence in the County Court on 21 June 2018, the judge summarised the circumstances of the offending as follows:[9]
[9]DPP v McIntosh (a pseudonym) [2018] VCC 940, [6]-[25] (‘Reasons’).
You were aged between 42 and 46 at the time of the offending. Your daughter, the complainant, was aged between 16 and 19 at the time. When she was born, her mother was in a casual relationship with you and she did not nominate you as the child’s natural father but you maintained contact with her mother and the complainant knew you as her uncle.
When she became curious as to who her father was at the age of eight or nine, she was told you were her father and she began to refer to you as ‘Dad’. She had sporadic contact with you but regarded you as her father and in December 1999, aged about 12, she visited you at your home in Queensland. At that time, you had recently lost a leg in a motor vehicle accident and had received a large compensation payment. The complainant was living in Victoria at the time and attending school there.
In February 2001, you married Grace Turner[10] and the complainant attended the wedding. In March 2001, she was hospitalised following an overdose of medication and you flew to Melbourne to visit her. You suggested that she could live with you and your wife in Queensland. She moved there and enrolled in a local school but at the end of the year, she returned to Melbourne to live with her grandmother.
[10]A pseudonym.
In January 2002, she returned to Queensland for a visit and you then began your sexual abuse of her. After a brief return to school in Victoria, she again lived with you in Queensland and you continued to have sex with her, forcing her to do so and subjecting her to physical assault as well.
In late 2002, you and your wife separated and you and the complainant began living in your truck, travelling between Queensland and Victoria. Your relationship now became one of boyfriend and girlfriend, as the complainant has described it, with regular sexual activity.
The complainant returned to Victoria several times over the next year or so with sex continuing to take place in Queensland. In 2003, the complainant was enrolled in school in Victoria and by November 2003, she had a boyfriend. You drove to Melbourne in your truck and her mother drove her to meet you. She was reluctant to be left alone with you. After her mother had left, you struck her in the face and ear a number of times, causing her ear to bleed and with bruising and swelling to her face. That is Charge 1 — intentionally causing injury. You telephoned her boyfriend and told him to stay away from the complainant.
That night, you hired a room at a hotel and took the complainant there. You verbally abused her, calling her a slut and you had sex with her that night and then made her sleep on the floor. That is Charge 2, part of the representative charge of incest.
Two weeks later, you returned to Victoria and took the complainant with you to Queensland, stopping in New South Wales on the way, and you continued to have sex with her and to assault her physically. You accused her of sleeping with other family members which she denied.
Throughout 2004, the complainant moved between Victoria, New South Wales and Queensland with you and the sexual relationship continued.
In May 2004, you drove her and your sister, Fiona Day,[11] to Swan Hill in Victoria. While Ms Day was out of the car at one point, you became abusive towards the complainant and accused her of ‘putting on a show’ for one of her cousins the previous night in the shower. She denied it and you struck her on the left leg with a piece of cable wire. That is Charge 3 — intentionally causing injury.
Ms Day returned to the car and intervened briefly but you then punched the complainant who got out of the car and took refuge in a nearby shop, where she waited for a time before returning to the car.
Once back in New South Wales when you had driven your sister back to her home, you assaulted the complainant badly, punching and kicking her while she lay on the ground. She had black eyes, sore ribs and a possible broken nose as a result.
In August 2004, you and the complainant drove to Victoria and stayed with another of your sisters, Edith McIntosh,[12] in Narre Warren. Over the next few months until December 2004, you continued to have sex with the complainant in Narre Warren and other parts of the State. That is the continuation of Charge 2.
Throughout 2005 and 2006, the complainant stayed with you in Queensland and you continued the sexual relationship with her during which time she turned 18. You used a tattoo gun to tattoo the word ‘Dad’s’ above her pubic region.
In October 2006, during an argument, you threw a mobile phone at her face, causing a split lower lip requiring sutures. At this time, the complainant had the contraceptive device removed that you had insisted she have inserted when in Victoria in 2004.
In early 2007, the complainant returned to Victoria, intending to stay with her mother. You remained in Queensland but continued to contact the complainant, outlining your plan to marry her and have children. The complainant agreed to this and you flew to Brisbane where in a hotel room, you proposed to her. She accepted and was given an engagement ring. You had sex with her and shortly afterwards, following an argument, you assaulted her, causing her to flee. She drove to the town of Warwick where she ran out of petrol. Her stepfather flew to Queensland and brought her back to Victoria.
You continued to contact her and travelled to Melbourne a few weeks later, meeting her at a motel and having sex with her. This is a further part of Charge 2.
Following a period in hospital because of being unwell, you returned to Queensland with the complainant where your sexual relationship continued. You both returned to Victoria to attend the funeral of the complainant’s grandfather and sexual intercourse took place in motels in Nagambie and Fawkner and in your truck at various locations in the Melbourne suburbs. Again, these instances comprise a continuation of Charge 2. …
[11]A pseudonym.
[12]A pseudonym.
Chronology
In about June 2007, the appellant admitted to his mother and sister that he had been having sex with his daughter; and on 9 July 2007, his daughter made a detailed statement to Victorian police outlining her relationship with him.
On 25 September 2007, Queensland police executed a search warrant and searched a motor home owned by the appellant. They discovered photographs of the complainant naked, and photographs and video of the appellant and complainant engaged in sexual activity. The appellant was arrested, and in the course of an interview made a number of admissions. Among other things, he claimed that the complainant ‘started it’ and was possessive, although he admitted that he was ‘wrong’. He said sexual activity took place over four years, and commenced when the complainant was aged 16 years (or close to it). The appellant said that he did not know if the complainant was his biological daughter, but he looked upon her as such.
Almost three years after his arrest, on 25 August 2010, the appellant pleaded guilty before Judge Koppenol in the District Court in Brisbane to a number of charges relating to his offending against his daughter in Queensland, and to offending against a niece. The judge described the offending as follows:
The offences involving your niece commenced in 1999. She was only 15. You commenced sexually offending against her on one occasion when you touched her genitals with one of your toes and masturbated in front of her. You subsequently engaged in oral sex, carnal knowledge, sexual intercourse and related activity. Your relationship with your niece ended when she was 17 in 2002.
In 2002 you then started a sexual relationship with one of your daughters. You had had little to do with that particular daughter in her early life. When she was 13 or 14 she moved to Queensland to live with you. Regrettably it was a tragic mistake on her part, as it was on the part of your niece in having anything to do with you whatsoever.
In 2002 you bought some sex toys and took your daughter to a motel and used the sex toy on her by inserting it in her vagina and followed that with sexual intercourse. Your daughter later returned to Victoria. She was subsequently expelled from school and returned to live with you.
This relationship then continued. There were countless examples of indecent touching, oral sex, sexual intercourse, sodomy and so on.
Sexual intercourse in 2005, 2006 occurred several times a week. You regarded yourself as owning your daughter. You became possessive and jealous if you thought she was ‘unfaithful’. You assaulted her on various occasions. On one occasion you even tattooed the words ‘DADS’ [sic] on her lower stomach in the area of her pubic hair. It’s hard to think of anything more degrading let alone such an appalling act that a father would perform on his own daughter. This is the sort of case that if the public heard about it, it would turn their stomach and rightly so.
Judge Koppenol sentenced the appellant to be imprisoned according to the following table:
Charge Offence Sentence Cumulation 1 Maintaining an unlawful sexual relationship with a child 8 years Nil 2 Indecent treatment of a child under 16 with aggravating circumstances 2 years Nil 3 Incest 6 years Nil 4 Incest 6 years Nil 5 Indecent treatment of a child under 16 with aggravating circumstances 2 years Nil 6 Common assault 12 months Nil 7 Sodomy with aggravating circumstances 6 years
6 months
Nil 8 Assault occasioning actual bodily harm 2 years Nil 9 Assault occasioning actual bodily harm 2 years Nil 10 Assault occasioning actual bodily harm 2 years Nil 11 Incest 6 years Nil 12 Sexual assault with circumstances of aggravation 3 years Nil 13 Sexual assault with circumstances of aggravation 3 years Nil 14 Incest 6 years Nil 15 Incest 6 years Nil 16 Incest 6 years Nil 17 Incest 6 years Nil 18 Incest 6 years Nil 19 Incest 6 years Nil Total effective sentence 8 years’ imprisonment Non-parole period 3 years and 6 months
On 19 June 2014, the appellant was released on parole in Queensland.
More than 22 months after his release, on 29 April 2016, Victorian police charged the appellant with offences committed in this State.
Later that year, at a committal mention on 2 September 2016, the appellant indicated that he would plead guilty to the Victorian charges. His Queensland parole was cancelled as a result on 16 September 2016, and he was returned to custody in Queensland.
A further committal mention in Melbourne fixed for 24 November 2016 was adjourned awaiting the appellant’s transfer to Victoria. He was not transferred to Victoria, however, until 13 September 2017 (that is, almost a year after he was returned to custody in Queensland).
The Queensland sentence expired on 23 August 2018.
Submissions on the plea
On the plea, counsel for the appellant submitted that the principle of totality ‘squarely applies in this case’, delay having caused a ‘significant disadvantage’ to the appellant.[13] Counsel argued that there was an ‘intrinsic degree of unfairness for somebody to be dealt with for this type of offending’, having spent years in custody and then ‘released and doing, on all accounts, very well on parole only to be brought back into custody’; although the delay also permitted the submission that the appellant ‘engaged in his rehabilitation’ and had ‘reasonable prospects of rehabilitation’.
[13]Counsel cited Mill v The Queen (1988) 166 CLR 59 (‘Mill’) and R v WMR (2005) 11 VR 370 (‘WMR’).
Whilst in custody in Queensland, counsel submitted, the appellant completed a number of programs, including ‘the getting started preparatory program’. In the program, he had demonstrated an ‘increasing insight into his sexual offending behaviour, accepted full responsibility for his sexual offending behaviour’ and ‘was able to demonstrate general empathy for others and his victim’. He also attended the ‘Medium Intensity Sexual Offending Program’ which was designed to ‘provide intensive treatment’ and assist in ‘safe reintegration back into the community’. The appellant also engaged in various programs whilst on parole, including the ‘sexual offending maintenance program’. He participated effectively and was ‘able to consider his risk factors, identify strategies to mitigate this, identify goals and self-enhancing activities’. The appellant also attended a ‘substance abuse maintenance intervention’ program, where he was an ‘active and respectful participant’. Counsel’s instructions were that the appellant had not used illicit substances since 2008.
Counsel submitted that, prior to the imposition of the Queensland sentence, the appellant had ‘a relatively limited prior criminal history’ and ‘no criminal history for sexual offending’. He had served a one month sentence of imprisonment when he was aged 16, whilst his other prior matters were ‘mainly dealt with by way of financial dispositions’.
The appellant’s time in custody, counsel submitted, was ‘more of a challenge and more onerous for him given the multitude of health issues that he presents with’. He lost half of his left leg, and seriously damaged his right ankle, in a trucking accident in 1994. These injuries cause ‘considerable pain’ and he is ‘effectively wheelchair-bound’. He had developed arthritis, suffered from chronic lower back pain and was also on various medications for a heart condition.
Reasons for sentence
When addressing the principle of totality in her reasons for sentence, the judge said:[14]
… The principle of totality calls for the moderation of your sentence by means of some limited concurrency with the sentence you are still serving and with the individual charges to which you are now pleading guilty, as well as more broadly. This applies to both the head sentence I will impose and the non-parole period.
[14] Reasons, [51] (emphasis added).
The judge noted, however, that the appellant had not spent any time in custody for the Victorian offences, and that the sentence she was to impose would run concurrently only with two months of the Queensland sentence remaining.
Her Honour said that a ‘mitigating factor is the delay that has occurred since the complaint was made in 2007’. The appellant was not charged until April 2016 and was returned to custody in September of that year. He therefore ‘served some two years in custody beyond the non-parole period [of the Queensland sentence] despite having been otherwise eligible’.
The appellant, the judge said, had completed a Sex Offender course whilst in custody in Queensland, ‘through which [he] gained some insight into [his] offending, specifically acknowledging the moral wrongness of [his] offending’. Her Honour also had regard to the report of consulting clinical and forensic psychologist, Mr Jeffrey Cummins, in which he concluded that the appellant’s ‘risk of committing a further sexual offence against an underage female is low-moderate’. The appellant told Mr Cummins that he took full responsibility for what he did and did not blame his daughter.
The sentencing judge referred to the complainant’s victim impact statement (Exhibit C), in which the complainant described ‘having been manipulated and lied to’ and said that ‘she bears the scars of [the appellant’s] treatment physically and psychologically’, requiring ‘probably lifelong treatment for depression and anxiety’.
Her Honour noted that the appellant was to be sentenced as a serious sex offender in relation to charge 2 — although the prosecution did not seek a disproportionate sentence — and that, given that it was a representative charge, charge 2 was ‘very serious and attracts a more severe sentence than would have applied if there had only been one isolated instance of the offence’.
As to the appellant’s personal circumstances, the judge said that the appellant was aged 56 years at the time of sentence and was in relationship. He had left school aged 15 and began driving trucks. In 1994, the appellant was injured whilst truck driving, resulting in the loss of his left leg below the knee and part of his right ankle. He spent two years in hospital and later started a trucking business with the compensation funds. The appellant had a prosthetic leg which broke when in custody, so that he became wheelchair bound. Whilst on parole, the appellant received a new prosthesis, but he had trouble adapting to it and developed cellulitis. He also suffered a minor heart attack in custody in 2014. The appellant is required to take medication associated with his heart condition, diabetes, and pain in his leg. Her Honour considered that the appellant’s ‘time in prison will be more difficult for [him] than for others who do not suffer from these health problems’.
The judge considered that the ‘accompanying physical abuse’ he perpetrated against the complainant ‘increases the severity of the incest charges’. She found that the appellant ‘treated [his] daughter as [his] mistress’ which was ‘manipulation and exploitation of a high order, playing dangerously with [his] own child's life‘, deserving of ‘severe punishment’. Her Honour considered that ‘general deterrence is of great importance’. The crime of incest ‘must be seen to be sternly condemned by the court and punished accordingly’. As the appellant’s ‘risk of reoffending has been assessed as low to moderate’, however, and ‘because [he] was free of illicit drug use and abuse of alcohol’, the judge considered that specific deterrence is of less significance ‘but does not diminish the need for appropriately severe punishment’.
Submissions of the parties
With respect to the first ground, the appellant’s counsel submitted that the sentences imposed, orders for cumulation, total effective sentence and non-parole period, are manifestly excessive. On the hearing of the appeal, counsel submitted that ‘delay at all stages has operated against’ his client. It was submitted in the written case that the appellant could call upon a number of matters in mitigation, including his early plea of guilty; his limited prior criminal history; that there had been no further offending since 2007; that a significant term of imprisonment he had already served; his extensive rehabilitation; his ill health; his ‘low-moderate’ risk of reoffending; significant delay; and the principle of totality. The appellant submitted that although the judge referred to these factors, the total effective sentence and non-parole period demonstrated that they were not given adequate weight.
As to the second ground, which asserts that the individual sentences failed to adequately reflect the principle of totality, the appellant relied principally on Mill.[15] It was submitted that Mill ‘remained applicable as providing a just and principled approach to sentencing’.
[15]Specifically, Mill, 66–7.
Orally, counsel for the respondent conceded that the sentence was ‘stern’, but submitted that it was not manifestly excessive. Counsel conceded that the appellant was entitled ‘in both jurisdictions’ to have his pleas of guilty be given appropriate weight. It was contended, however, that the pleas of guilty and other matters in mitigation were given appropriate weight by the judge. In written submissions it was submitted that the judge was correct to consider the age disparity between the appellant and the complainant; the duration of the offending; the breach of trust; the vulnerability of the complainant; the accompanying violence and denigration; the impact on the complainant; and the maximum penalties. It was submitted that the judge ‘carefully balanced the matters put in mitigation … with the gravity of the offending, the circumstances of aggravation, the characterisation of the charges … and the need to uplift sentences for charges of incest involving mid-high level offending’.
On the second ground, the respondent accepted that the principle of totality required the judge to consider the likely head sentence that would have been imposed if the appellant had been sentenced for all the offences on the one occasion. It was submitted, however, that the appellant fell to be sentenced for distinct sexual offending in Victoria. The sentence demonstrates that sentencing judge sensibly gave effect to the principles of totality.
Analysis
The incest charge was representative, in that it represented a single instance of conduct which occurred in a wider context.[16] Thus, all other things being equal, it could not realistically have been contended either that the individual sentence of six years’ imprisonment imposed by the sentencing judge for incest, or the total effective sentence arrived at by the orders for cumulation, were manifestly excessive.[17]
[16]See DPP v CPD (2009) 22 VR 533, 542 [38]; DPP v Jones (a Pseudonym) (2013) 40 VR 267, 286–7 [79]–[80]; Reid (a Pseudonym) v The Queen (2014) 42 VR 295, 307–8 [73]–[75].
[17]See, eg, DPP v Dalgliesh (a Pseudonym) [2017] VSCA 360; Carter (a Pseudonym) v The Queen [2018] VSCA 88; DPP v Walsh (a Pseudonym) [2018] VSCA 172.
To put the matter into perspective, however, notional aggregation of the Queensland and Victorian sentences renders a theoretical total effective sentence of 14 years and six months’ imprisonment. Moreover, it can be determined that, when the appellant was sentenced for the present offences in the County Court on 21 June 2018, he had served substantially more than five and a half years of the term of imprisonment imposed by the District Court for the Queensland offences.[18] Hence, should the appellant be required to serve the total effective sentence imposed for the Victorian component of his offending, he will have been in custody for in excess of 12 years for his concurrent offending in Victoria and Queensland. And even if he be granted parole when he first becomes eligible (which cannot be assumed), the appellant will have been required to serve more than nine and a half years’ imprisonment for the total offending. Given those circumstances, we consider that the sentence imposed in the County Court infringed the principle of totality.
[18]The period from 25 August 2010 (when he was sentenced) to 19 June 2014 (when he was released on parole) is close to three years and ten months; and the period from 16 September 2016 (when his Queensland parole was cancelled) to 21 June 2018 (when he was sentenced for the present offending) is a little over one year and nine months.
In Mill, the appellant had committed three armed robberies in a six week period, two in Victoria and one in Queensland. In Victoria, he was sentenced on each armed robbery to eight years’ imprisonment. Six years’ concurrency between the individual sentences resulted in an effective head sentence of 10 years, upon which a non-parole period of eight years was fixed. Once released on parole in Victoria, however, the appellant was arrested and returned to Queensland, where he was sentenced to eight years’ imprisonment (with a three year non-parole period), effecting a notional total effective sentence of 18 years’ imprisonment. In the High Court, recognition was given to the fact that the totality principle has been recognised in Australia, and it was observed:[19]
[19]Mill, 63–4.
The application of the principle becomes more complicated where the offender commits a number of offences within a short space of time in more than one State. Upon the offender being apprehended and sentenced to a term of imprisonment in one State, the other State cannot proceed to deal with him in respect of an offence committed in that State until he is released from custody in the first State. That may involve a deferment of the processes of the criminal law in the second State for a period of years. That is what happened in the present case.
And further:[20]
In our opinion, the proper approach which [the sentencing judge] should have taken was to ask what would be likely to have been the effective head sentence imposed if the applicant had committed all three offences of armed robbery in one jurisdiction and had been sentenced at one time. It is most unlikely that the applicant would have been sentenced to eight years on the first count, eight years with six years of it concurrent on the second count, and eight years cumulative on the third count, making an aggregate head sentence of eighteen years. Yet that, it seems to us, is the practical effect of the sentence imposed by his Honour. On the other hand, the notional exercise which we have just described tends towards a conclusion that a sentencing court dealing with all three offences at the same time would have dealt with the third offence in a similar manner to that adopted when dealing with the second, namely, by imposing a sentence of eight years with five or six years of it concurrent with the earlier sentences. The aggregate head sentence in that event would have been either twelve or thirteen years. An appropriate non-parole period may well not have been much more than the eight years actually imposed by the Victorian court. But, of course, it is not possible for a second sentencing court to impose a concurrent sentence of the kind we have contemplated in the absence ·of statutory provisions enabling the backdating of the new sentence: cf. Reg v Gilbert[21] and Reg v Garrett.[22] Section 20 of the Criminal Code (Q) does not allow such a course to be taken. Without statutory authority, the only course open to the second sentencing court is to adopt a lower head sentence that reflects the long deferment that has taken place during which the offender has been in custody. It is true that the lower head sentence will fail to reflect adequately the seriousness of the crime in respect of which it is imposed. That is unfortunate. However, it is to be preferred to the injustice involved in the imposition of a longer head sentence because of the inadequacy of the law to cope satisfactorily with the intervention of State boundaries.
If it be suggested that there is a degree of concurrency present in the sentence imposed on the applicant for the Queensland offence, because the sentence commenced at a time when the Victorian sentence still had two years to run, the answer is that to construe the circumstances in that way effectively denies to the applicant any remissions on the Victorian sentence.
In our opinion, therefore, the applicant has made out his case that a significant error of principle is reflected in the punishment that has been imposed upon him. …
[20]Ibid, 66–7 (emphasis added, citations in the original).
[21][1975]1 WLR 1012; [1975]1 All ER 742.
[22](1978) 18 SASR 308.
In the instant case, the appellant’s offending was very serious. It was exploitative, and involved a gross breach of trust. As the judge observed, the appellant treated his daughter as his mistress over several years, ‘to the extent of perpetrating a cruel and perverse fantasy throughout, involving engagement and the promise of marriage’. And according to the complainant’s victim impact statement, the sexual relationship with her father interfered very significantly with her life during her teenage years, indirectly bringing her schooling to an end and preventing her from committing herself to employment.
Despite the seriousness of the appellant’s offending, however, we consider that, when proper regard is had to the appellant’s pleas of guilty and other mitigating factors (including delay), had the appellant been sentenced at the one time for the totality of his offending, he would not have received an aggregate sentence of 14 years and six months’ imprisonment. In those circumstances, we consider that the appellant has made good the complaint that the sentence imposed failed adequately to reflect the totality principle.
We will therefore allow the appeal, set aside the sentence on charge 2, incest, and in lieu sentence the appellant on that charge to four years’ imprisonment. The sentences on charges 1 and 3 are otherwise confirmed, as are the orders for cumulation. The total effective sentence is therefore four years and six months’ imprisonment. We will fix a new non-parole period of two years. Pursuant to s 6AAA of the Sentencing Act 1991, we declare that but for the plea of guilty, we would have imposed a total effective sentence of six years and six months’ imprisonment, with a non-parole period of four years. All other orders of the County Court are confirmed.
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