McPherson v The Queen
[2014] VSCA 59
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2012 0303 | |
| JOHN STANLEY McPHERSON | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | MAXWELL P, NEAVE and REDLICH JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 29 July 2013 |
| DATE OF JUDGMENT | 8 April 2014 |
| MEDIUM NEUTRAL CITATION | [2014] VSCA 59 |
| JUDGMENT APPEALED FROM | DPP v McPherson (Unreported, County Court of Victoria, Judge Pullen, 9 November 2012) |
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CRIMINAL LAW – Appeal – Sentence – Persistent sexual abuse – Indecent act with child under 16 (19 charges) – Total effective sentence 11 years’ imprisonment, non-parole period 7 years 6 months’ imprisonment – Multiple child victims – Forfeiture – Appellant consented to forfeiture of $100,000 – Whether ‘two-stage’ sentencing – Whether sentence manifestly excessive – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr J McLoughlin | Victoria Legal Aid |
| For the Respondent | Mr B F Kissane | Mr C Hyland, Solicitor for Public Prosecutions |
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MAXWELL P:
On 29 June 2012, the appellant (now aged 68) pleaded guilty to a large number of sexual offences. The offences were committed during 2010 and 2011, against neighbourhood children who visited the appellant’s house. He was sentenced as follows:
Charge Offence Complainant Maximum Sentence Cumulation Name Age 1 Persistent sexual abuse of a child under the age of 16 [s 47A(1) Crimes Act 1958 (Vic)] AH 13–14 25y 5y 6m Base 2 Indecent act with or in the presence of a child under 16 [s 47 Crimes Act 1958 (Vic)] (‘Indecent act’) KC 10 10y 6m 1m 3 Indecent act KC 10 10y 8m 3m 4 Indecent act KC 10 10y 6m 2m 5 Indecent act CL 13–14 10y 6m 2m 6 Indecent act CL 13–14 10y 6m 2m 7 Indecent act DM 8 10y 10m 5m 8 Indecent act DM 8 10y 6m 2m 9 Indecent act DM 8 10y 10m 4m 10 Indecent act DM 8 10y 10m 5m 11 Indecent act DM 8 10y 6m 2m 12 Indecent act DM 8 10y 10m 4m 13 Indecent act JS 8 10y 10m 5m 14 Indecent act GY 8 10y 6m 2m 15 Indecent act GY 8 10y 10m 4m 16 Indecent act DM 8 10y 12m 6m 17 Indecent act JS 8 10y 12m 6m 18 Indecent act GY 8 10y 12m 6m 19 Indecent act CL 13–14 10y 6m 2m 20 Indecent act CL 13–14 10y 10m 5m Total Effective Sentence:
11y, 2m
Non-Parole Period: 7y, 6m Pre-sentence Detention: 113 days 6AAA Statement: 14y, NPP 10y Other relevant orders: Serious sexual offender declaration for charges 2–20.
Life reporting requirement.
Forensic sample order.
Forfeiture of $100,000 from proceeds of sale of house.
On 23 May 2013, Coghlan JA granted leave to appeal on the ground that the sentencing judge had erred
in imposing a sentence on Charge 1, order[s] for cumulation on Charges 11 to 18, and a non-parole period that were manifestly excessive, in particular having regard to the applicant’s consent to a forfeiture order, age, remorse, pleas of guilty and otherwise good character.
Circumstances of the offending
The offending occurred between 1 February 2010 and 15 May 2011. As appears from the sentencing table, there were six individual victims. Two were boys aged 13 to 14, one was a boy aged 10, and the other three (all girls) were aged eight.
The appellant was a neighbour of the victims AH, KC and DM. AH, a boy, was aged 13 to 14 years old at the time of the offending. KC is AH’s brother and was 10 years old at the time of the offending. DM, a girl, was eight years old.
AH went to the appellant’s house to apologise for something DM had done. The appellant took his penis out from his pants and showed it to AH, saying that DM had jumped on him and hurt his penis. This was the first of a series of sexual offences against AH, extending over the entire period. This sequence of offending is the subject of Charge 1 — persistent sexual abuse.
The following day, AH went to the appellant’s house. The appellant showed him a collection of nude photographs of men and women stuck on the wall in his computer room. AH and the appellant then went to the lounge room where the appellant put on a pornographic video. While they watched the movie, the appellant asked AH if he wanted to see him come. AH asked what ‘come’ was. The appellant then masturbated and ejaculated (Charge 1).
The next day AH again went to the appellant’s house. The appellant showed him a photograph of a naked woman (Charge 1).
A week later, AH went again to the appellant’s home. He knocked on the door and the appellant yelled out for him to come in. The appellant was watching a pornographic movie and masturbating. AH sat down and the appellant asked him to join in. AH started masturbating. AH asked if he could pick a movie and they both watched the pornographic movie whilst masturbating. This lasted 10–15 minutes, then AH left (Charge 1).
The following day, AH again went to the appellant’s home. They watched a different pornographic movie and masturbated. On a Friday evening, the appellant showed AH pornographic images on the computer and then they watched the wrestling and masturbated (Charge 1).
About four weeks after the offending against AH started, KC came to the house to play with the appellant’s cat. He went into the lounge and saw the appellant and AH watching a pornographic movie and masturbating. He was scared and hid under a bed (Charges 2 and 3).
On a Sunday morning, AH went to the appellant’s house. KC and DM were already at the house and KC was looking at pornographic pictures on the computer with the appellant (Charge 4). After 10–15 minutes they went to the lounge room where the appellant masturbated in front of them. AH and KC also masturbated and DM touched herself (Charge 1).
About two or three months after the offending commenced, AH was at the appellant’s house. They were masturbating. The appellant started masturbating AH and then asked AH to masturbate him. After this time, it became a regular occurrence for the appellant and AH to masturbate each other (Charge 1).
On 22 May 2010, AH went to the appellant’s home. They watched a football match on TV. They both masturbated. The appellant put on a pornographic movie and they continued to masturbate whilst watching the movie (Charge 1).
On a number of occasions, AH went to the appellant’s house with his friend, CL (male, 13 to 14 years old at time of offending). On one occasion after 1 June 2010, they went to the computer room and viewed the wall of pornographic photos. The appellant then showed them pornography on his computer (Charge 5). CL and AH continued to visit the appellant over the next few days. On one occasion, they watched a pornographic movie in the lounge room with the appellant, and CL and AH masturbated (Charge 6).
A further occasion involved the appellant putting on a pornographic movie and giving AH oral sex and having AH reciprocate. DM walked in shortly afterwards and the appellant told her she had missed all the fun as AH had just ‘sucked him’ (Charge 1).
AH and the appellant also masturbated in front of a web camera on various internet chat sites, while watching other males and females masturbate (Charge 1). DM walked in one time and saw AH and the appellant masturbating whilst watching another male on the computer masturbate (Charge 7).
Between January and May 2011, DM knocked on the appellant’s door and was told to come in. She saw the appellant and AH watching a pornographic movie and masturbating (Charges 8 and 9). On another occasion, DM also saw the appellant and AH masturbating on the couch (Charge 10).
On a weekend around February or early March 2011, the appellant put on a pornographic movie about transsexuals. AH and the appellant masturbated and then the appellant had AH suck his penis for about two minutes (Charge 1).
In April or May 2011, DM was playing with two of her friends, GY and JS (both girls and eight years old at the time of the offending). They went to the appellant’s house and DM took GY and JS to see the wall of pornographic pictures. CL was there but he left and locked the door on his way out. DM, GY and JS went to the lounge where the appellant and AH were watching television. The appellant said ‘Show me yours and I’ll show you mine’.
The girls tried to leave but found the door was locked and thought they had been locked in. They eventually unlocked the door and left. They returned to the house shortly afterwards, and saw the appellant masturbating. They left again. The girls returned and saw AH and the appellant watching a pornographic movie. DM and GY saw the movie that was playing. They all saw the appellant and AH masturbating (Charges 11–15).
The appellant suggested the girls ‘get their fannies out’. The girls left the house again. They returned soon after and DM suggested that if the appellant and AH had sex, they would ‘get theirs out’. The appellant and AH were naked from the waist down. The appellant stood behind AH and put his penis between AH’s buttocks. He moved back and forwards, simulating anal sex. They changed positions and AH simulated anal sex with the appellant. DM, GY and JS then showed their underwear. DM said ‘na na na na, got ya’ and the girls left. The appellant masturbated while the girls lowered their pants (Charge 1, Charges 16-18). The appellant and AH then masturbated each other (Charge 1).
A few days prior to the offending being disclosed, the appellant and AH were watching a pornographic movie. The appellant sucked AH’s penis (Charge 1).
On the last occasion AH went to the appellant’s home, he went with CL. They watched a pornographic movie with the appellant. The appellant masturbated and asked the boys why they were not masturbating. AH pulled out his penis and began masturbating (Charges 19 and 20, Charge 1).
Charge 1 — persistent sexual abuse of a child under 16 — covered the entire period February 2010–May 2011. The prosecutor informed the sentencing judge that the appellant’s offending against AH comprised:
·eight instances of masturbating in the presence of AH;
·two instances of mutual masturbation;
·two instances of the appellant performing oral sex on AH;
·one instance of AH performing oral sex on the appellant;
·one instance of simulated anal sex; and
·12 instances of viewing pornography together.
The forfeiture order
One of the matters relied on to make good the ground of manifest excess is the appellant’s consent to a forfeiture order in the sum of $100,000. In the course of argument on the appeal, counsel for the appellant drew attention to the exchanges between the judge and the prosecutor, in the course of argument on the hearing of the prosecution application for a forfeiture order.
The forfeiture hearing took place some three months after the plea hearing. The sentencing judge asked the prosecutor whether, if forfeiture of a specified sum was ordered, the appellant would ‘still get a reduction in his sentence as a result’. The prosecutor confirmed that he would, while reminding the judge — as he did several times — that the fact of the forfeiture order (if made) was a factor to be taken into account in the intuitive synthesis.
On the first occasion, the Crown had made a submission as to the applicable sentencing range.[1] During the forfeiture hearing, her Honour enquired what the ranges would be if she were to order either total forfeiture or partial forfeiture. She told counsel that she had already prepared her sentence. The following exchange took place:
[1]Crown submissions on range are no longer permissible: see Barbarov The Queen (2014) 305 ALR 323.
PROSECUTOR: Now what we did then, your Honour, was [to] go through the exercise again, because as we submit in our submissions it has to be done as intuitive synthesis. It’s not a case of there being some formula, you know, $100 or $1000 is worth a day or a month or [whatever]. It is one of the facts that has to go in. And in looking at it you would have to look at it from the point of view of well, OK, if it was by consent which this is not and we worked it initially as being on the basis of consent, then it would also add an element of remorse as we put into our submission.
HER HONOUR: So there is no consent at this stage, but I take it you’ve only been talking about the house as opposed to part of a house.
PROSECUTOR: Yes. If it was by consent and if it was on the basis that your Honour found that there was significant remorse, we would think that as much as 18 months would be open as a deduction, somewhere between - - -
HER HONOUR: Off the top and the bottom.
PROSECUTOR: Twelve to 18 months would be the sort of figures that we would be looking at and that’s intuitive synthesis. You can’t simply double what you would give for a plea of guilty, it doesn’t work that way, but it would add significantly to the plea of guilty but it wouldn’t simply double - - -
HER HONOUR: On that example you gave, if he was to consent to this and I accepted that as significant remorse, $190,000 would ultimately result in only 12 to 18 months off his sentence.[2]
[2]The appellant’s house had been valued at $190,000.
PROSECUTOR: Well that’s a significant period of time, your Honour, in terms of a person who is 67, and in terms of living some meaningful life after the term - - -
HER HONOUR: I would have thought, just having this discussion with you, I would have thought that that would be worth more than that. When it’s all [you] own in life, if it is, who knows yet, I’d be finding out, but it is all he owns in life to get 12 or 18 months, aren’t you better off to come out and have your house. I just ask, for 12 months.
PROSECUTOR: Your Honour, we can’t look at it that way.
HER HONOUR: No.
PROSECUTOR: We look at it as being a factor to take into account in an intuitive synthesis of the sentence. As we have put to your Honour, it would be [analogous] in our submission to a significant plea of guilty.
HER HONOUR: So if I order it without consent obviously - - -
PROSECUTOR: It would be about half I would say.
HER HONOUR: So six months to nine.
PROSECUTOR: Yes, something like that, about half. So that would mean that the range would be 10 years, three months, to about 13 years on top, and six years, three months to eight years on top. So that would be the sort of range that you would be looking at without consent.
Subsequently, her Honour asked whether what she referred to as ‘the alteration adjustment’, in respect of forfeiture, could be made on Charge 1 without affecting the sentence on the other 19 charges. After discussion about whether different sentences were appropriate for the different charges of indecent assault, the following exchange took place:
HER HONOUR: No, I follow that, but there could be just alteration of Charge 1.
PROSECUTOR: Yes.
HER HONOUR: Yes.
PROSECUTOR: I mean, sensibly, that would have to occur.
HER HONOUR: Yes.
PROSECUTOR: Not necessarily, but sensibly, that would have to occur to bring the thing into balance.
HER HONOUR: Otherwise it becomes a horrendous exercise. You know, Charge 2, I knock a month off there, add a month here. It just seems all a bit - - -
PROSECUTOR: We had a go at it, your Honour. We know what you have to go through.
HER HONOUR: Well, now, let’s get to the next point. Let’s say, just to pick a figure out of the air, which I thought was an interesting figure, 100,000.
PROSECUTOR: Yes. It then becomes a question of how much weight your Honour gives. When we give you that range of six to 12 months or nine to 18 months, it means that reasonable minds can differ about the weight that should be given within that range, basically, and it really comes down to what your Honour gives as the weight to that. So you might think that 100,000 is worth the full nine - - -
HER HONOUR: Eighteen months. Well, no, I might — what if I thought it was worth the full 18 months?
PROSECUTOR: Well, if you do, well, that’s all right.
HER HONOUR: Is that an appealable error?
PROSECUTOR: No.
The submission for the appellant was that the sentence imposed on Charge 1 — five years and six months — revealed that the entire ‘alteration adjustment’ of 18 months, in respect of the forfeiture order, had been applied in determining the sentence on Charge 1. The inference to be drawn, it was said, was that the judge had had in mind a sentence of seven years on that charge and had reduced it by 18 months. Any benefit to the appellant had, however, been negated by the orders for cumulation in respect of the sentences on Charges 11–18. As a result, it was submitted, the sentence was manifestly excessive.
In my view, the first part of this submission may well be correct. It is clear from the exchanges between her Honour and the prosecutor that she sought — and received — an assurance from the prosecutor that the ‘adjustment’ could be applied to Charge 1 alone. Taking this course would, her Honour suggested, avoid the complexity of having to reduce the sentences on a large number of counts by small increments which would aggregate to the amount of the sentencing discount which her Honour regarded as appropriate.
As we have seen, her Honour had also sought — and received — an assurance from the prosecutor that she would not fall into appealable error if she were to conclude that ‘the full 18 months’ should be deducted from the sentence to reflect the forfeiture order. At the same time, I note her Honour’s statement in the sentencing reasons that she had taken the appellant’s consent to the forfeiture order into account ‘when determining the appropriate sentence as part of the intuitive synthesis of sentencing’.[3]
[3]DPP v McPherson (Unreported, County Court of Victoria, Judge Pullen, 9 November 2012) (‘Reasons’), [170].
In the end, however, it is not necessary to reach a concluded view on this question. There is no complaint of specific error. Whatever may be the explanation for her Honour having arrived at the sentence of five years and six months on Charge 1, I am not persuaded that the total effective sentence (including, therefore, the orders for cumulation) or the non-parole period are manifestly excessive.
It is important, nevertheless, to point out that the course which the sentencing judge appeared to be proposing, and which the prosecutor endorsed, would have been impermissible, as it would have involved two-tier — or two-stage — sentencing. As already pointed out, the judge said she had formed a view about the appropriate sentence on the basis of the original plea hearing, and had prepared sentencing reasons. Her Honour’s exchanges with the prosecutor at the subsequent forfeiture hearing were directed at identifying the quantum of the ‘adjustment’ which might be applied. Her Honour was concerned, moreover, to ascertain whether the discount could be effected by simply making a deduction from the proposed sentence on Charge 1, rather than by a series of small reductions from the proposed sentences on all of the counts.
Such an approach is clearly contrary to established sentencing principles. It is not open to a sentencing judge to arrive at a view about an appropriate sentence of imprisonment and then add or subtract a particular period to reflect a particular sentencing factor.[4] With respect, the prosecutor should have informed her Honour accordingly. While counsel properly reminded her Honour of the essential nature of the sentencing task — as a synthesis of all relevant factors — the assurances which he gave the sentencing judge about her proposed approach to the discount for forfeiture were, in my opinion, calculated to lead her Honour into sentencing error.
[4]Wong v The Queen (2001) 207 CLR 584, 611 [74]–[75]; Markarian v The Queen (2005) 228 CLR 357, 375 [39].
I now turn to explain my conclusion that the sentence is not manifestly excessive.
Not manifestly excessive
As this Court has repeatedly made clear in recent years, the ground of manifest excess is difficult to establish. For it involves persuading the appellate court that, although there was no specific legal error in the sentencing, the sentence arrived at is nevertheless so plainly outside the range of sentences available to the judge in the circumstances of the case that appellate intervention is warranted.
As a five-member bench of this Court said in Clarkson v The Queen:[5]
[T]he ground of manifest excess will only succeed if it can be shown that the sentence was ‘wholly outside the range of sentencing options available’ to the sentencing judge. That is, it must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he or she did, if proper weight had been given to all the relevant circumstances of the offending and of the offender. This is a stringent requirement, difficult to satisfy. It reflects the oft-repeated policy that sentencing is for judges and magistrates at first instance. Sentencing is not the task of appellate courts, except where clear error is shown.[6]
[5](2011) 32 VR 361.
[6]Ibid 384 [89] (citation omitted).
In the present case, no complaint was made about any of the individual sentences. As already discussed, the submission for the appellant was that the forfeiture ‘adjustment’ of 18 months could be seen to have been applied to the sentence on count 1. The judge’s ‘starting-point’ must therefore have been a sentence of seven years’ imprisonment, which was said to be manifestly excessive.
Even if the assumptions were correct, this argument would inevitably fail. The manifest excess ground can only ever be directed at the sentence actually imposed.[7] In this case, that was a sentence of five years and six months’ imprisonment for persistent sexual abuse. The prosecutor had submitted at the plea hearing that a sentence of between six and nine years was appropriate on that count.[8] Given the length of time over which the offending persisted, the large number of offences committed during the period and the fact that they included acts of sexual penetration, that submission was entirely proper, in my view.[9] A sentence of seven years’ imprisonment would have been well within range. The sentence actually imposed was very moderate.
[7]R v Burke (2009) 21 VR 471, 477 [30]–[31].
[8]As noted above, Crown submissions on range are no longer permissible: see Barbaro v The Queen (2014) 305 ALR 323.
[9]See, eg, DPP v DDJ (2009) 22 VR 444.
As to the charges of indecent act, the individual sentences were again very moderate. As the sentencing table shows, all but three of the indecent act charges attracted sentences of between six and 10 months. Only three of the charges — Charges 16, 17 and 18 — attracted a sentence of 12 months, which is still only 10 per cent of the maximum penalty of 10 years’ imprisonment.
Charges 16–18 concerned the act of simulated anal sex. As described earlier, this involved the appellant, who was naked from the waist down, standing behind AH, who was also naked from the waist down. The appellant put his penis between AH’s buttocks and moved back and forward, as if he were penetrating him anally. The positions were then reversed, and AH simulated anal sex with the appellant. This occurred in the presence of the three eight year old girls (DM, GY and JS), who then responded to the appellant’s earlier request by lowering their underpants, in response to which he masturbated.
This was, in my opinion, a very serious instance of the offence of indecent act. Moreover, each child present — including AH, whom the appellant had enlisted to his indecent purpose — was a victim of this conduct. The sentences of 12 months — on the charges relating respectively to the three girls — were lenient, in my opinion. I note, by way of comparison, that in R v WS[10] this Court affirmed a sentence of three years on a comparable indecent act charge, where the two offenders had made their 10-year-old daughter watch them have sexual intercourse. The difference between actual and simulated sex is of little significance, in my opinion, when weighing the gravity of such conduct. The effect of the orders for cumulation on Charges 16–18 was that a total of 18 months was added to the base sentence. That was well within the available range, in my opinion.
[10][2006] VSCA 59.
Charges 11–15 concerned events earlier on the same day. As appears from the summary set out earlier, the girls left the appellant’s house, and returned, on three separate occasions. From the outset, the appellant urged the girls to expose their genitals. Each time they returned, the appellant had the opportunity to desist, but he did quite the opposite. On their first return after leaving, the girls saw him masturbating. On their second return, they saw the pornographic movie he was watching with AH, and saw both the appellant and AH masturbating. The appellant again suggested that the girls expose themselves.
The appellant’s conduct to this point gave rise to two discrete groups of offences, as follows:
·Charges 11 and 14: viewing pornography in the presence of DM and GY respectively. A sentence of six months was imposed on each of these charges, with two months cumulated in each case, resulting in the addition of four months to the base sentence in respect of this conduct; and
·Charges 12, 13 and 15: masturbating in the presence of, respectively, DM, JS and GY. A sentence of 10 months was imposed on each of those charges. The total cumulation ordered was 13 months.
The appellant points out that, when those orders for cumulation are combined with the orders in respect of the simulated sex charges, a total of 35 months’ cumulation was ordered in respect of the events of that day. The total cumulation was manifestly excessive, it is said, ‘given that it was one extended episode’.
I am not persuaded by that submission. In my opinion, having regard to the seriousness of the offending and the age of the children involved, the orders for cumulation were not disproportionate to the total criminality of the appellant’s conduct on that day. For example, a total of 13 months’ cumulation was ordered in respect of the appellant’s having masturbated in the presence of the three eight year old girls. That may be compared with the sentence of three years’ imprisonment for a single act of masturbation in the presence of a child, upheld by this Court in R v DP.[11]
[11](2007) 176 A Crim R 382.
This was, in my opinion, very serious sexual abuse, characterised by the appellant’s persistent urging of very young children to behave in an indecent fashion for his sexual gratification. In an important respect, the appellant occupied a position of trust in relation to these children. He was not their teacher or their babysitter, but he was obviously a trusted neighbour. The fact that they were, apparently, allowed to come and go freely from his house indicates that he was regarded as trustworthy by the children’s guardians. It is clear enough that the children felt safe to place their trust in him.[12] This offending was a grave breach of that trust.
[12]Cf HRJ [2011] VSCA 217, [33].
I have reviewed a series of decisions of this Court regarding sentences imposed for the charge of indecent act with a child under 16. (Those decisions, and the salient features of the offending in question, are summarised in Appendix A to these reasons.) On the basis of that review, I am satisfied that the sentences imposed here were consistent with current sentencing practices for offending in this category of seriousness.[13] It is not, of course, to be forgotten that on all but Charge 1 the appellant was being sentenced as a serious sexual offender.[14] In a number of cases where — as here — the offender pleaded guilty, sentences of two years, two years and six months and three years have been imposed — and upheld on appeal — for individual instances of conduct of the kind in which the appellant engaged.
[13]Ashdown v The Queen (2011) 219 A Crim R 454, [174]; Anderson v The Queen [2013] VSCA 138, [22].
[14]Cf IRJ v The Queen [2011] VSCA 376, [44] (‘IRJ’).
I refer in particular to IRJ,[15] where the offender had pleaded guilty to seven indecent act charges and four incest charges, the victim being the eight-year-old daughter of a woman with whom he was in a relationship. The offending took place over only two days, but this Court upheld sentences for indecent act offences as follows:[16]
[15]IRJ [2011] VSCA 376.
[16]Ibid [2].
·for showing the victim pornography — two years and six months;
·for having the victim touch his penis — three years;
·for having the victim masturbate him — three years; and
·for touching the victim on the vagina — three years.
The base sentence was five years and six months on one of the incest counts, the same base sentence as in this case. This Court upheld the total effective sentence of 11 years, with a non-parole period of nine years. It was said to be a stern sentence but within range.[17]
[17]Ibid [3], [54]. See also Bosanquet v The Queen [2012] VSCA 1 (sentences of two years, 18 months and 16 months); Witbeck v The Queen [2010] VSCA 341 (sentence of 20 months); EDM v The Queen [2010] VSCA 308 (sentences of two years, and of 18 months on separate counts); DPP v Wong [2007] VSCA 26 (sentences of two years on separate counts, including double jeopardy discount); R v WS [2006] VSCA 59 (sentences of three years); SLJ v The Queen [2013] VSCA 193 (three years, two years, one year); R v DP (2007) 176 A Crim R 382 (three years).
Sexual crimes against children are abhorrent. In R v DP,[18] Vincent JA (with whom Kellam JA and Whelan AJA agreed) said:
Specific and general deterrence assume great significance as sentencing considerations and, putting it bluntly, those who exploit and abuse young children, must anticipate that the response of our society, which our courts represent, will be severe.[19]
[18](2007) 176 A Crim R 382.
[19]Ibid 393 [46].
The effect of the appellant’s conduct was devastating, both for the victims and their families. Ten victim impact statements — four from the child victims, and six from parents of the victims — illustrated the gravity of this offending.
Several parents observed the profound deterioration of their children following the appellant’s offending. One recounted watching her daughter, who was eight years old at the time of the offending, ‘become a very angry child wanting to rip her hair out because the butterflies in her stomach won’t go away’. Another reported her daughter, also aged eight, ‘slowly withdraw[ing] into herself’, having ‘lost confidence and self-worth with everything she does’. The children themselves reported intrusive fear and anxiety, even in familiar environments like home and school. They fear being victimised again, and fear that their friends might also be victimised.
For these reasons, I consider that it was reasonably open to the judge to impose the sentences which she did. The sentences reflect, in my view, the giving of appropriate weight to the appellant’s plea of guilty, his acceptance of responsibility, his remorse and his having consented to the forfeiture of $100,000. The total effective sentence and the non-parole period were stern, but they were within the available range.
For completeness, I should mention one further argument advanced on behalf of the appellant. It was said that her Honour appeared to have accepted,
erroneously, that the seriousness of the offending was aggravated because there were multiple complainants. Reliance was placed on the recent decision of this Court in NR v The Queen,[20] where it was held that the gravity of any one sexual offence could not be viewed as aggravated by the fact that other offences were committed against other complainants.
[20][2013] VSCA 166.
Examination of the sentencing reasons makes clear, however, that that is not what the sentencing judge was saying. Her Honour said that there were a number of aggravating features of the offending. She continued:
The disparity between your age and that of each complainant, the fact that there were multiple victims of your offending, increases the overall gravity of your offending.[21]
Plainly enough, the greater the number of individual victims against whom sexual offences have been committed, the greater the ‘overall gravity’ of the offending. The statement was unexceptionable.
[21]Reasons, [50] (emphasis added).
The appeal must be dismissed.
NEAVE JA:
I have had the advantage of reading the draft reasons of Maxwell P. I agree for the reasons he gives, that the appeal should be dismissed.
REDLICH JA:
I agree with Maxwell P.
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APPENDIX A
McPherson v The Queen – s 47 (indecent act) cases
| Case | Plea | Priors | Age of victim | IA Conduct | Sentence for IA | Comment |
| Warren v The Queen [2013] VSCA 372 | G | – | 8–9 | Pictures | 2y 6m | Reduced on appeal to 1y 9m |
| Masturbation | 1y 6m | In range | ||||
| SD v The Queen [2013] VSCA 133 | G | – | 11 | Touch vagina | 2y | - Reduced to 18m |
| Touch leg | 2y | - Reduced to 9m —TES 20m, 50% suspended | ||||
| Lord v The Queen [2013] VSCA 80 | G | – | 13 | D was 24 year-old woman. V was infatuated boy. He touched her (representative charges) | 12m 9m | Unchanged on appeal |
| 2y | Reduced to 18m | |||||
| DRS v The Queen [2012] VSCA 276 | NG | ? | 14–15 | Touched breasts (single count) | 2y | Reduced to 18m (10m suspended) |
| Bosanquet v The Queen [2012] VSCA 1 | G | – | 15 | Touching (rolled-up charge) | 2y | Unchanged on appeal |
| 6–9 | Touching (over clothes) | 3x6m | Unchanged on appeal | |||
| 5 | Touching (inside clothes) | 16m | Unchanged on appeal | |||
| IRJ v The Queen [2011] VSCA 376 | G | – | 8 | Pictures | 2y, 2y6m | Unchanged on appeal TES 11y, NPP 9: ‘stern”. Base was 5y6m for incest (oral pen, both ways). Conduct over two days only |
| V touching D | 3y | |||||
| V masturbating D | 3y | |||||
| Touching vagina | 3y | |||||
| Touching vagina | 3y | |||||
| Witbeck v The Queen [2010] VSCA 341 | G | – | 16 | D got undressed in presence of V | 2m | |
| D, V and third party undressed, mutual masturbation | 20m | ‘no more than appropriate’ [9] | ||||
| EDM v The Queen [2010] VSCA 308 | G | ✓ | 15–16 | D made V touch him (representative charge) | 2y | Not manifest excess |
| Touched breast, vagina (representative charge) | 18m, 18m | |||||
| DPP v Wong [2007] VSCA 26 | G | – | 5 | D touched V’s vagina | 2y | Babysitter (double jeopardy discount, [26]) |
| V touched D’s penis | 2y | |||||
| Both | 2y | |||||
| R v WS [2006] VSCA 59 | G | – | 5 | V touched D’s penis (representative charge) | 1y | Reimposed on appeal[22] |
| V masturbated D | 3y | |||||
| 10 | V made to watch D have sex | 3y | ||||
| HRJ v The Queen [2011] VSCA 217 | NG | – | 3–4 | Rubbed thigh | 6m | TES 3y2m, NPP 18m ‘entirely appropriate’[23] |
| Licked vagina: same occasion | 3y | |||||
| SLJ v The Queen [2013] VSCA 193 | NG | ? | 9–13 | Rubbed thigh | 1y | Conviction appeal only: |
| Licked vagina | 3y | |||||
| V masturbated D | 2y | |||||
| Pictures | 9m, 9m | |||||
| DP v The Queen (2007) 176 A Crim R 382 | G | – | 4 ½ | D masturbated in V’s presence | 3y | ‘do not bespeak error’ [47][24] |
[22][28] damage to victim, both at 5 and at 10.
[23][33] re breach of trust: was next door neighbour—free access: [7].
[24][46] ‘Those who abuse young children must anticipate severe response’.
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