Moore (a pseudonym) v The King

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2022 0093

JAY MOORE (a pseudonym)[1]	Applicant
v
THE KING	Respondent

[1]To avoid the possibility of identifying the alleged victim of a sexual offence, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

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JUDGES:	PRIEST AP and NIALL JA
WHERE HELD:	Melbourne
DATE OF HEARING:	20 October 2022
DATE OF JUDGMENT:	27 October 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 233
JUDGMENT APPEALED FROM:	DPP v Moore (a pseudonym) [2022] VCC 842 (Judge Syme)

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CRIMINAL LAW – Appeal – Sentence – Sexual assault of child under 16 – Sentence of 10 months’ imprisonment with two year community correction order – Whether judge sentenced on incorrect factual basis – Whether judge failed to take into account participation in sex offender treatment – Whether sentence manifestly excessive – Leave to appeal refused.

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Counsel
Applicant:		Mr CK Wareham
Respondent:		Mr JCJ McWilliams
Solicitors
Applicant:	James Dowsley & Associates
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST AP
NIALL JA:

The applicant (now aged 35 years)[2] and his partner hosted a New Year’s Eve party at their home on 31 December 2019. Evidently, the applicant drank a deal of alcohol and became quite inebriated. His partner’s female niece, then aged 15 years,[3] stayed the night at the premises, and was asleep on a mattress on the lounge room floor when she was woken by the applicant’s finger touching her genitals underneath her underwear.
[2]His date of birth is 29 September 1984.
[3]She was born in June 2004.
On 3 June 2022, the applicant pleaded guilty in the County Court to one charge of sexual assault of a child under 16.[4] The maximum sentence for that offence is 10 years’ imprisonment, and the standard sentence is four years.
[4]Crimes Act 1958, s 49D.
Following a plea in mitigation, on 6 June 2022 the judge sentenced the applicant to 10 months’ imprisonment, to be followed upon his release by a two year community correction order (‘CCO’).
The applicant now seeks leave to appeal against his sentence on three grounds:
1The learned sentencing judge erred by having regard to a superseded Summary of Prosecution Opening, and sentenced the applicant on the basis that:
(a) He ‘pestered [the complainant] to sleep on the mattress’ with him, and
(b) He ‘asked the [complainant] to sleep on the mattress [with him] many times’, and
(c) There was ‘some premeditation’ to the offending.
2The learned sentencing judge erred by failing to take into account the fact that the applicant had already commenced treatment in a sex offender treatment program prior to his plea and sentence.
3When regard is had to the following factors:
(a) the applicant’s plea, its timing and inherent utility,
(b) the discount to be afforded to pleas of guilty during the currency of the COVID-19 pandemic,
(c) the applicant’s expressions of remorse and prior good character,
(d) the applicant’s engagement in treatment and rehabilitation in advance of the plea,
the sentence imposed by [the judge] is manifestly excessive.
In our view, for the following reasons, leave to appeal should be refused.

Ground 1: The judge referred to a superseded Prosecution Opening

In advance of the applicant’s plea, the prosecution had filed a ‘Summary of Prosecution Opening for Plea’, dated 5 May 2022 (‘May Opening’). In the immediate lead up to the plea hearing, the May Opening was the subject of negotiation, resulting in a revised ‘Summary of Prosecution Opening on a Plea’, dated 1 June 2022 (‘June Opening’), being filed.
The principal difference between the two documents is that the June Opening did not repeat parts of the May Opening which suggested that the applicant ‘pestered’ the complainant to sleep on the mattress, so much suggesting premeditation (in that the complainant would have been more readily accessible on the mattress than if an alternative sleeping arrangement was adopted). Further, in her oral reasons for sentence and unrevised written reasons, the judge remarked that there was ‘some premeditation’, notwithstanding that the prosecution accepted that the offending was ‘opportunistic’.
Moreover — and importantly — in her oral sentencing reasons, the judge found that the applicant’s behaviour during the party indicated an inappropriate sexual interest in the child ‘just short of grooming’, a finding which does not appear in the revised written reasons for sentence. The applicant’s counsel submitted that this finding — so closely connected to the pronouncement of sentence — reflected gravity of the offending beyond that which could legitimately be inferred from the contents of the June Opening.
Counsel for the applicant submitted that the judge impermissibly — or at least erroneously — had regard to the superseded May Opening, and having done so, went on to make findings about the applicant and his offending that were either not agreed facts, or were not open on the available evidence, and which aggravated the applicant’s offending. These findings, counsel submitted, were material, in that they must have had an influence on the sentence imposed. The sentencing discretion is thus re-opened and the sentencing discretion should be exercised afresh.
The respondent’s counsel conceded that it is at least arguable that the judge had regard to the May Opening — some of the language she used suggests that this is so — but submitted that any error is immaterial since it did not result in an adverse finding of any significance against the applicant. Counsel also submitted that the judge’s remark that the applicant’s behaviour was ‘just short of grooming’ was immaterial.
In her revised sentencing reasons, under the heading ‘Objective gravity of the offending’, the judge said:
The prosecution accept that the offending was opportunistic. However, I note that you asked the child to sleep on the mattress many times, which she eventually did. This enabled the offending to occur more easily, so while I accept that it was opportunistic, there was some immediate planning.
The prosecution opening includes an observation that you were behaving in a sexually inappropriate manner towards the child earlier in the evening; indicating a concerning sexual suggestion toward this young girl and a lack of propriety. So, while I accept that your offending was opportunistic, your earlier behaviour indicated an inappropriate sexual interest in the child.
When they are properly analysed, the findings set out immediately above are, in our view, consistent with the June Opening, which asserts that, on at least two occasions, the applicant suggested to the complainant that she should sleep on the mattress on the floor, rather than next to her uncle on a fold-out couch (albeit it might not be entirely apt to describe two occasions as ‘many’). We consider that it was legitimate for the judge to find — based on the June Opening — that the applicant’s suggestions to the complainant about sleeping on the mattress evidenced some rudimentary planning, and that his behaviour earlier during the party indicated an inappropriate sexual interest.
Of more concern is the fact that the revised written sentencing reasons do not reflect that in her oral sentencing reasons the judge said: ‘So, while I accept that your offending was opportunistic, your earlier behaviour indicated an inappropriate sexual interest in the child just short of grooming’. In other words, the phrase ‘just short of grooming’ was omitted from the final sentence of the passage extracted above. Counsel for the applicant submitted that the omitted phrase imbues the offence’s gravity with a different complexion.
A judge should be circumspect when revising a written version of reasons orally delivered. He or she must be extremely cautious when adding to, excising from, or otherwise changing, what is supposed to be the written embodiment of the judge’s oral reasons. Certainly a judge must not, in revising his or her reasons, effect any alteration in substance. Thus, in Lazarus,[5] Bellew J observed:
Whilst a judge has the power to revise his or her reasons for judgment there are necessarily restrictions in his or her doing so. In Lam v Beesley (1992) 7 WAR 88 at 93-94, Owen J reviewed the authorities before concluding (at 95) that if changes to a judgment were such that they could lead to an appearance of altered substance (as opposed to the alteration of matters of form) in a criminal trial, that would be sufficient to render a conviction unsafe and unsatisfactory. In Bar-Mordecai v Rotman [2000] NSWCA 123, the Court of Appeal (Sheller, Stein and Giles JJA) confirmed (at [193]) the propriety of the process of revision of ex-tempore reasons, but emphasised that altering the substance of the reasons, or the orders that they sustain, in the course of such revision is not permissible. Both of these decisions were referred to by Beazley JA (as her Honour then was) in Todorovic v Moussa (2001) 53 NSWLR 463 where her Honour concluded (at [46]) that the appropriate test in determining whether an alteration to a judgment is permissible is whether the change is one of substance in fact.
In Spencer v Bamber [2012] NSWCA 274 Campbell JA (with whom Basten and Macfarlan JJA agreed) emphasised (at [141]) the need for written reasons to be, in substance, those that the judge had given at the time of making orders. His Honour went on to say (at [142]):
The qualification I have just referred to is that in deciding what is an ‘impermissible alteration’, one must not only consider whether an alteration is one of substance, but also Gleeson CJ’s recognition that alteration is permissible ‘where, because of a slip, the reasons as expressed do not reflect what the judicial officer meant to say’. The circumstances in which a mistake or slip could justify corrections in draft reasons were elaborated on in Bell v Veigel^[[6]] at [220], where Mason P said:
It would in my view be wrong for a judge who has pronounced reasons for final judgment to make a material addition or alteration to those reasons simply because some better idea has come to mind. Sometimes, however, a judge fails to spell out what was in his or her mind referable to a particular argument, simply due to oversight. I see no reason why such an oversight could not be remedied, on application or on the judge’s own motion, in a proper case.
Basten JA agreed with Campbell JA and was not prepared to infer that particular propositions were in the mind of a primary judge at the time of delivering oral reasons if statements encompassing those propositions were not made. His Honour went on to explain (at [8]) that the test of whether a revision is permissible is an objective one and that a relevant consideration is the degree of conformity between the revision and the argument presented in court.
[5]R v Lazarus (2017) 270 A Crim R 378, 402 [122]–[124].
[6][2008] NSWCA 36.
The present is, perhaps, a borderline case. The concept of grooming has its own connotations and is the subject of separate offences and the removal of the observation that the conduct was ‘just short of grooming’ had the potential to give rise to some uncertainty as to the basis of the sentence. It would have been better if the judge had not excised the relevant words from her written reasons for sentence so that any suggestion that there had been a shift in the process of reasoning would have been avoided. Ultimately, however, we are not persuaded that their excision materially altered the substance of the judge’s reasons, the main burden of which was that the applicant manifested an inappropriate sexual interest in the complainant.
We would not uphold the first ground.

Ground 2: Failure to take into account participation in sex offender program

In the course of the plea, counsel for the applicant tendered a report from psychologist, Dr Mathew Barth, dated 27 May 2022, in which Dr Barth noted that the applicant had
voluntarily participated in four treatment sessions at his own expense with Mr Geoffrey Burrows, an associate of this practice, from 11 February 2022 to 14 April 2022 as part of the Sex-Offender Treatment Program (SOTP). The SOTP has focused on assisting [the applicant] to commence the process of gaining insight into his offending, enhancing victim empathy and relapse prevention training. I have held extensive discussions with Mr Burrows regarding [the applicant’s] progress in treatment and have incorporated them into this report.
Relying on the report, counsel submitted to the sentencing judge that the applicant
has been engaging in appropriate treatment. The most important component of that is that he's been voluntarily engaging in the sex offender treatment program. Dr Barth discusses that in his report. He understands that he’s at the beginning of a lengthy therapeutic process. He’s committed to completing the program and any other treatment that is recommended to him.
In support of ground 2, counsel for the applicant submitted that the applicant’s participation in the SOTP was ‘critical’ in that it: demonstrates an insight into his offending and the necessity for treatment; assists in an assessment of his prospects for rehabilitation and future risk; and underscores his remorse. Notwithstanding its importance, however, the judge did not deal directly with the applicant’s engagement with Dr Burrows and the SOTP. Counsel submitted that, should the judge have had regard to this factor it would have formed part of her sentencing reasons. It did not. The failure to take this factor into account was a material error, the sentencing discretion has thereby miscarried.
In her sentencing reasons, the judge dealt with Dr Barth’s report as follows:[7]
After taking into account static risk factors of age, your lack of criminal history, your long-term relationship and your offending against a related female correlate, Dr Barth concludes that you have a lower, rather than a higher, risk of reoffending.
Dr Barth observed the inherent limitations of the static risk assessment protocol. He observed, using more dynamic factors, that your main risk factors included: your developing insight into your behaviour and cognitive distortions which may have contributed to your behaviour.
Evaluating your risk within these parameters indicates, a low to moderate risk of reoffending. He recommends that this risk be reduced through the completion of a specialist sex offender treatment program.
Separately, Dr Barth considered that you present with sufficient symptoms to warrant a diagnosis of an adjustment disorder with mixed anxiety and depressed mood. He observes that your current symptoms are primarily focused on your guilt for the offending and rumination of the potential consequences.
Dr Barth’s report is detailed and helpful and I commend it to those who will be supervising you in due course.
Dr Barth recommends that you undertake or continue to undertake sex offender counselling and mental health treatment by way of psychological assistance to enhance your ability to cope with personal stresses more adaptively. He also recommends and alcohol-related counselling.
Dr Barth further observes that should a custodial sentence be imposed, you are likely to be a vulnerable prisoner, particularly, when considering your limited skills for your depressive and anxiety related symptoms.
I accept that a custodial sentence will be more burdensome on you than someone without your adjustment disorder that features anxiety and depression. This will be taken into account under the Verdins^[[8]] principles.
[7]Emphasis added,
[8]R v Verdins (2007) 16 VR 269.
And with respect to the applicant’s remorse, the judge observed:
Your remorse was expressed quickly to family members. Your discussion with Dr Barth shows that you are beginning to understand the consequences of your offending. Your remorse is beginning to transition from an expression of self-guilt and self-pity to an elementary understanding of the consequences for the victim of your offending.
In oral argument the applicant’s counsel accepted that the judge did not entirely ignore the fact that he had engaged in treatment and, in light of the foregoing, it is unrealistic to suggest that the judge did not pay sufficient regard to the fact that the applicant had participated in the SOTP. The judge noted that Dr Barth had assessed the applicant as having a ‘lower, rather than a higher, risk of reoffending’, and had recommended that any risk of reoffending ‘be reduced through the completion of a specialist sex offender treatment program’ (an apparent reference to the SOTP undertaken with Dr Burrows). Dr Barth’s report, the judge said, ‘is detailed and helpful’ — presumably a view that she could only reach having read it thoroughly — and she commended it ‘to those who will be supervising [the applicant] in due course’.
Ground 2 must fail.

Ground 3: Contention that the sentence is manifestly excessive

In oral submissions, counsel for the applicant conceded that a sentence of imprisonment was within the bounds of sound sentencing discretion, but submitted that a sentence of 10 months, coupled with a CCO of two years’ duration, was ‘too much’.
We do not agree.
In support of the contention that the sentence is manifestly excessive, the applicant’s counsel submitted that the sentence imposed indicates that the applicant cannot have been given the full benefit of his early guilty plea. The plea had utilitarian value, and, having been entered during the pandemic, should have attracted a perceptible ‘discount’.[9] Moreover, the applicant is a man formerly of good character, with no prior findings of guilt. Dr Barth assessed the applicant’s overall risk of sexual recidivism as falling in the low-moderate risk category, and noted that this risk would be further reduced with the completion of a specialist sex offender treatment program (which the applicant has already commenced). Indeed, the applicant’s engagement with the SOTP heightens his prospects of rehabilitation. Finally, counsel relied on the applicant’s insight and remorse, which had been manifested in a variety of ways.
[9]Worboyes v The Queen (2021) 96 MVR 344.
Counsel for the respondent submitted that, on balance — considering each of the matters both aggravating and mitigating — it cannot reasonably be argued that the sentence imposed on the applicant is manifestly excessive. Sexual offending against children is inherently serious, and can have lifelong effects. The complainant’s victim impact statement in this case eloquently sets out the serious effect offences such as the applicant’s can have on children. The maximum penalty of 10 years’ imprisonment and a standard sentence of four years’ imprisonment are the dual legislative guideposts which speak clearly of the gravity of the offence to which the applicant pleaded guilty. Further, the applicant was approximately 20 years older than the complainant who was, in effect, his niece. He sexually assaulted her by touching her genitals inside her underpants while she was asleep and vulnerable. These facts, counsel submitted, demonstrate that the applicant’s offending represented a significant breach of trust.
The principles that must be applied when dealing with a ground such as the present were summarised in Leimonitis,[10] where it was said that
manifest excess is a conclusion which does not depend upon the attribution of identified specific error. Moreover, it is a conclusion that ordinarily does not admit of much elaboration or sustained argument,[11] since excess is, or is not, plainly apparent, and a sentence is, or is not, unreasonable or plainly unjust. The sentence may be excessive because the wrong type of sentence has been imposed, or because the sentence imposed is manifestly too long.[12] A judge of an appellate court will approach the task of assessing whether a sentence is manifestly (as opposed to simply arguably) excessive in much the same way that a sentencing judge approaches the imposition of sentence at first instance; that is, by instinctively synthesising all relevant factors in order to determine whether he or she considers the impugned sentence to be just and appropriate.[13] But it is not enough for appellate intervention to be warranted that the judges of the appellate court regard the impugned sentence as stern, or that they would not themselves have passed the same sentence. Intervention is justified only if the sentence is wholly outside the range of those open in the sound exercise of discretion.[14]
[10]Leimonitis v The Queen [2018] VSCA 198, [32] (Priest JA).
[11]R v Kenny (Unreported, 2 October 1978, Vic, CCA); Noa v R [2013] VSCA 4, [12]; Allen v R (2013) 36 VR 565, 573 [51]–[52].
[12]Dinsdale v The Queen (2000) 202 CLR 321, 325–6 [6] (Gleeson CJ and Hayne J).
[13]Ibid.
[14] Lowndes v The Queen (1999) 195 CLR 665, 671–672 [15].

Weighing all relevant factors, we are not persuaded that the sentence imposed upon the applicant falls wholly outside the range of those open in the proper exercise of the sentencing discretion.
We would not uphold ground 3.

Conclusion

None of the three grounds is reasonably arguable. Leave to appeal must therefore be refused.
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[2022] VSCA 233

27 October 2022