Murphy (a pseudonym) v The King
[2022] VSCA 259
•24 November 2022
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2021 0158 |
| TOBY MURPHY (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: | NIALL JA and KIDD AJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 24 October 2022 |
| DATE OF JUDGMENT: | 24 November 2022 |
| MEDIUM NEUTRAL CITATION: | [2022] VSCA 259 |
| JUDGMENT APPEALED FROM: | [2021] VCC 1525 (Judge Carlin) |
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CRIMINAL LAW – Leave to appeal – Sentence – Applicant sentenced for multiple State and Commonwealth offences in relation to sexual offences against children – Where serious offender provisions in Part 2A of Sentencing Act 1991 erroneously applied to Commonwealth offences – Whether finding on applicant’s prospects of rehabilitation against weight of evidence and in denial of procedural fairness – Whether judge erred by imposing a sentence that was longer than standard sentence – No reasonable prospect of reducing total effective sentence on any appeal – Leave to appeal refused.
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| Counsel | |||
| Applicant: | Mr MD Stanton with Ms S Buckley | ||
| Respondent: | Mr CB Boyce KC | ||
Solicitors | |||
| Applicant: | Pica Criminal Lawyers | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
NIALL JA
KIDD AJA:
On his plea of guilty, the applicant was sentenced by a judge of the County Court to a term of imprisonment on charges of persistent sexual abuse of a child under 16, producing child abuse material, transmitting child abuse material, causing child abuse material to be transmitted to himself, sexual assault of a child under 16, sexual penetration of a child or lineal descendant, and possession of child abuse material. The victims of the applicant’s offending were his three children who were in his sole custody at the time.
Some of the offences were State offences and others were Commonwealth offences. This added to the complexity of the judge’s task. The applicant was sentenced as follows:
| Charge | Offence | Max Penalty | Sentence | Commencement/ Cumulation |
| 1 | Persistent sexual abuse of a child under 16[2] | 25 years | 11 years | Base |
| 2 | Produce child abuse material[3] | 15 years | 7 years | To commence 1 year before the expiry of the State non-parole period (‘NPP’) |
| 3 | Transmit child abuse material[4] | 15 years | 7 years | To commence upon the expiry of the State NPP |
| 4 | Cause child abuse material transmitted to self[5] | 15 years | 2 years | To commence 5 years and 6 months after the expiry of the State NPP |
| 5 | Sexual assault of a child under 16[6] | 10 years | 4 years and 6 months | 6 months |
| 6 | Sexual penetration of lineal descendent[7] | 25 years | 9 years | 1 year |
| 7 | Possess child abuse material[8] | 15 years | 3 years | To commence 5 years after the expiry of the State NPP |
| Total Effective Sentence (State): Non-Parole Period: | 12 years 6 months 8 years | |||
| Total Effective Sentence (Cth): Non-Parole Period: | 9 years (cumulation 3 years, 6 months) 5 years (commencing 1 year prior to expiry of State NPP) | |||
| Total Effective Sentence (State & Cth): Non-Parole Period: | 16 years 12 years | |||
| Pre-sentence Detention Declared: | 373 days | |||
| Section 6AAA Statement: | Total Effective Sentence 20 years Non-Parole Period 16 years | |||
| Other Relevant Orders: 1. Pursuant to s 34 of the Sex Offenders Registration Act 2004, the length of the reporting period is Life. 2. Order for forfeiture and disposal of property in the Schedule. | ||||
[2]Crimes Act 1958, s 49J amended by the Crimes Amendment (Sexual Offences) Act 2016.
[3]Criminal Code Act 1995 (Cth) s 474.23(1).
[4]Ibid s 474.22(1).
[5]Ibid.
[6]Crimes Act 1958, s 49D(1).
[7]Ibid s 50C(1).
[8]Criminal Code Act 1995 (Cth) s 474.22A(1).
The Circumstances of the offending
The offending was abhorrent and appalling to recount. It is necessary to describe what occurred because we are unable to explain our reasons for the conclusions we have reached without recounting the circumstances of the offending.
Between 31 January and 18 June 2020, the applicant committed sexual offences against his children Hugo (aged 11), Matthew (aged 9) and Emily (aged 5)[9] who were in his sole custody within his home.
[9]Hugo, Matthew and Emily are pseudonyms.
Just after 1 am on 18 June 2020, the applicant sent four images via the KIK messenger application (‘KIK’) using the screen name ‘ranga3063’ to a person who, unbeknownst to the applicant was a covert police operative based in Washington DC in the United States of America. These images were of the applicant’s 5-year-old daughter Emily who was naked on a bed. In three of those images parts of the applicant’s body could be seen, including in one image, his exposed penis as he lay beside her. The applicant told the undercover operative ‘I have played with her pussy and licked it but no chance of getting my cock in’. Later that night, police in Victoria executed a search warrant at the applicant’s home. Analysis of various electronic devices kept by the applicant revealed a raft of images of the applicant involved in sexual offending against his children or images of his children in sexually explicit poses.
Charge 1 comprises 27 occasions over 17 days of the applicant sexually touching Emily or engaging in sexual activity in her presence. The applicant recorded these activities and some occasions include multiple prolonged instances of offending.
Most of the sexual touching took place while Emily was in the bed she shared with the applicant. The contact with Emily included:
(a)the applicant masturbating then putting his penis near her face or on her lips and nose;
(b)licking her vagina;
(c)masturbating and ejaculating on her stomach or buttocks;
(d)rubbing her vagina and inserting his finger into her vagina;
(e)rubbing his penis against her genitals;
(f)masturbating and placing his face in her genital area;
(g)placing his face in her genital and buttock area;
(h)rubbing his penis on her anus between her cheeks;
(i)rubbing her buttocks and genitals over her underwear;
(j)masturbating himself then touching her face with his penis;
(k)masturbating himself beside her;
(l)rubbing her genital area over her underwear;
(m)moving her underwear to one side to expose her genitals; and
(n)rubbing his penis against her buttocks.
The sexual activity without touching included the applicant masturbating next to Emily, masturbating in her presence and putting his penis near her face.
Charge 2 comprises 71 occasions whereby the applicant filmed or photographed the three children in a sexually abusive manner. This includes footage and images of the sexual activity involving Emily and Hugo (charges 1, 5 and 6), videos and photographs of the three children’s naked or partially naked bodies, genitalia or with the applicant’s penis visible and on at least one occasion with semen on Emily’s body.
Charge 3 comprises 57 occasions whereby the applicant transmitted child abuse material depicting Hugo, Matthew and Emily during KIK or WhatsApp conversations on his two mobile phones. In addition to the applicant’s conversation with covert police operatives, there were 54 other KIK conversations in which he utilised the name ‘ranga3063’ and two WhatsApp conversations using his first name as the screen name to transmit material produced in charge 2.
As the judge noted, correctly, during these exchanges with multiple people, the applicant freely discussed his children in vulgar and sexualised terms and appeared proud of his abuse. He sent a broad range of sexually abusive videos and images of his children, including the worst of the material he had produced and which were the subject of charge 2.
Charge 4 relates to receiving two videos and one image of child abuse material relating to a female child aged 11 or 12. This occurred between 13 and 16 May 2020 via KIK. This material was sent in response to a video sent by the applicant of him touching Emily’s lips and nose with his penis via KIK.
Charge 5 consists of the applicant masturbating Hugo’s penis on two occasions on 29 May 2020. The events were captured on two videos taken 13 minutes apart at 12:59 am and 1:12 am.
Charge 6 relates to the applicant sucking Hugo’s penis on 29 May 2020 at 1:12 am.
Charge 7 relates to the applicant’s possession of 54 videos constituting child abuse material of which did not involve his children. The videos were located on his mobile phone in files within KIK and WhatsApp as well as the Android Gallery. These were received on his phone between 22 April and 3 June 2020.
The reasons for sentence
The judge’s reasons are detailed, carefully crafted and comprehensive.
Personal circumstances of the applicant
After detailing the circumstances of the offending, the judge addressed the applicant’s personal circumstances. He was 43 years old at the time he came to be sentenced.
The applicant’s parents separated when he was an infant. He lived with his mother, and had a strained relationship with his stepfather. He had a brief period in foster care when he was 15 and moved out of home a year later. His mother continues to support him.
The applicant left school in Year 11 after a troubled period of schooling. He commenced using drugs including cannabis and amphetamine on a daily basis. After a period of rehabilitation his life became a little more settled in his mid-twenties and he had a period of relatively stable employment in a variety of jobs.
The applicant had an 11 year relationship with the mother of his three children. That relationship broke down and the applicant received sole custody of his three children in March 2019 after a lengthy legal process of a kind which was not explained before the judge but which involved child protection. The applicant made a total of 52 reports to the Department of Health and Human Services about his ex-wife’s parenting.
According to the applicant’s account, given to two psychologists who provided evidence on the plea, the applicant’s sons have significant mental health and behavioural issues, including of post-traumatic stress disorder. The applicant’s youngest son has been diagnosed with ADHD and oppositional defiant disorder and has threatened self-harm.
It appears that being a sole parent was a cause of significant difficulty for the applicant but he did not seek help. In early 2020, after the applicant’s father died, the applicant reverted to heavy drug use, reportedly using methamphetamine intravenously on a daily basis.
Gravity of the offending
The judge considered that the conduct comprising charges 1, 2, 3, 5 and 6 were serious examples of serious crimes. Whilst the judge considered that charges 4 and 7 were still serious she regarded them as less serious examples of their crimes because of the relatively small volume of material when compared to other cases of the kind.
The judge found the applicant’s moral culpability to be very high. The judge noted that the offending involved a gross breach of trust, and that, having obtained sole custody after a lengthy legal process, the applicant had totally abdicated his responsibility as a father to protect and nurture his children.[10] The judge referred to the sexual assaults as most egregious and observed that the applicant had used images of his children as commodities to trade with similarly deviant individuals.
[10]DPP v Murphy (A Pseudonym) [2021] VCC 1525, [47] (‘Reasons’).
In reports given to psychologists, Mr Hanley and Mr Candlish, the applicant said that he knew what he was doing was wrong but could not control himself. He told them that he could not remember the offending due to his chronic ice use, but he was disgusted by the offending and hated himself for it. He offered a range of possible motivations including loneliness, curiosity and a desire to connect with men after his father died.[11] He said that the offending occurred late at night when he was intoxicated by ice and not in control of his behaviour. The judge declined to accept this version, noting offending occurred at all hours of the day and night over four and a half months, not just late at night and the images of the offending were recorded on two mobile phones that would have been available to him when he was sober.
[11]Ibid [51].
The children told police that the applicant had done nothing bad to them. The judge noted however that there was a well understood presumption of harm in the case of sexual offending against children. Further, victim impact statements from the child’s mother and the applicant’s sister showed some of the impacts. The applicant’s sister has had care of the three children since the applicant’s arrest and spoke of the children exhibiting sexualised behaviour to each other.
The judge recorded that the applicant was entitled to a significant discount for his plea of guilty which had a significant utilitarian value, especially so in the context of the pandemic.
Remorse
On the question of remorse, the judge referred to the evidence of Mr Hanley who described the applicant as having a positive attitude to treatment. The judge also noted that the applicant expressed remorse to police, Mr Hanley and Mr Candlish. However, the judge balanced those matters against the nature and extent of the offending, the applicant had minimised his responsibility by shifting the blame to drugs and by claiming to have no memory and there was no evidence he held any concern for the impact of the offending on the victims. The judge was prepared to find limited remorse on the applicant’s part, saying that she was not persuaded that the applicant truly appreciated the harm that he had caused.[12]
Prospects of rehabilitation
[12]Ibid [68].
The topic of the applicant’s rehabilitation and risk of further offending is the subject of proposed ground 1. The expert evidence of Mr Hanley and Mr Candlish was in part directed to that issue. Before dealing with the judge’s findings, it is convenient to refer to that evidence.
Mr Hanley is a forensic psychologist. The applicant consulted him on four occasions and Mr Hanley provided a report as his treating clinician. The applicant told Mr Hanley that his involvement with child abuse material had always occurred late at night after using methamphetamines and that he was concerned with ‘random’ urges to engage in sexual activity. The applicant told him ‘the more I tried to stop the harder it got … I knew it was wrong but I couldn’t stop it’.
Mr Hanley concluded:
[The applicant] presents as an unstable man with multiple treatment needs relevant to his risk of recidivism. His history of adolescent conduct problems, criminal behaviour, drug problems and family instability point to an elevated risk of general recidivism. His poor self-awareness, difficulties with stress and coping, relationship problems, and the sexual deviance implied by his offending points to an elevated risk of future sexual offending specifically.
[The applicant]’s participation in treatment with me was positive. He engaged appropriately in the treatment process and expressed a desire to understand his problems and make changes to his behaviour. With appropriate structures and supports in place, I would expect that [the applicant] could make further progress in psychological treatment.
Mr Hanley recommended specialised sex offender treatment, drug counselling and mental health counselling.
Mr Candlish is also a forensic psychologist. He provided a report based on a clinical interview and the administration of a number of psychometric tests.
Mr Candlish noted that the applicant’s psychological profile based on testing pointed to a person with a history of substance abuse with a significant depressive experience but relatively few signs of depression. Mr Candlish ‘diagnostic impressions’ were of a man who continued to reveal emotional detachment, problems with empathy and egocentricity, irresponsibility and considerable risk-taking and impulsive behaviour.
Mr Candlish concluded that the applicant met the criteria for Paedophilic Disorder, while at the same time being sexually attracted to adults. On risk assessment testing using a number of psychological tools including the Static-99R model and professional judgment Mr Candlish concluded that the applicant was in the ‘Moderate–Low’ risk category for sexual recidivism involving non-contact sexual offending such as engaging in sexually deviant communications with online internet users and possessing child abuse material and at the ‘Low’ risk for sexual recidivism for contact offending against a female or male child in the absence of any interventions designed to increase his risk manageability.
In relation to this evidence the judge concluded:
Mr Hanley described you as having an ‘elevated risk of general recidivism’ and ‘an elevated risk of future sexual offending specifically’. Mr Candlish noted that your simultaneous attraction to adults gave rise to the potential that your attraction to children would significantly decline over time. He considered your offending in this case to be highly contextual in that you had access to your own children whilst disinhibited from drug use and suffering chronic stress and impaired empathy. His clinical judgment was that in the absence of intervention you were at moderate to low risk of child abuse material and internet based offending and low risk of offending against children not in your care. He described you as being motivated for treatment ‘to some extent’ and believed your prospects for rehabilitation were good.
Your prospects of rehabilitation are tied to your ability to abstain from drug use and successfully engage in offence specific treatment. Your risk of recidivism is also tied to the protective factors pertaining upon your release, such as you not having ready access to children. I do not regard you as without hope. However, given your longstanding problematic drug use and its association with the present offences, as well as the shocking nature of the present offences, I consider your future prospects as guarded at best.[13]
Standard sentence and serious sexual offender provisions
[13]Ibid [70]–[71].
Under the heading, ‘Purposes of Sentencing’ the judge noted that she had to have regard to the purposes for which a sentence may be imposed under the Sentencing Act 1991 (‘the Act’) being: just punishment, deterrence, rehabilitation, denunciation, and protection of the community. The judge observed that charges 1, 5 and 6 are standard sentence offences and charges 1 and 6 are category 1 offences.[14] The judge referred to Brown v The Queen[15] as authority for the proposition that she was not to engage in a two-step process, but that she was required to take into account the standard sentence and standard non-parole period in the same way as she takes into account the maximum penalty, and indeed all other relevant sentencing factors, to arrive at an appropriate sentence by instinctive synthesis.[16]
[14]Ibid [75].
[15](2019) 59 VR 462; [2019] VSCA 286 (‘Brown’).
[16]Reasons, [75] n 26.
The judge then said:
In addition, after your sentence on charge 1, you will be a serious sexual offender. Thereafter, I will be required to consider protection of the community as the principal sentencing purpose and will be entitled to impose a disproportionate sentence to achieve that purpose. Finally, your status as a serious sexual offender gives rise to a statutory presumption of cumulation in respect of the individual sentences. The more serious the overall offending the more that presumption will operate to moderate the principle of totality.[17]
[17]Ibid [75] (citations omitted).
The judge said that even without those provisions, the offending warranted a substantial term of imprisonment. She said that balancing of the presumption of cumulation and the principle of totality requires that she not order full cumulation of each sentence, particularly taking into account that there is considerable overlap in terms of dates and circumstances. The judge said she would ‘otherwise direct’ to give effect to her orders for cumulation and concurrency for the purposes of s 6E of the Act.[18]
[18]Ibid [76].
Grounds Of Appeal
The applicant seeks leave to appeal his sentence on the following grounds:
1.When assessing the applicant’s prospects for rehabilitation, the sentencing judge erred by:
(i)making a finding against the weight of the evidence;
(ii)failing to afford the applicant procedural fairness; and
(iii)failing to consider that the applicant will have access to rehabilitative treatment in custody.
2.With regard to charge 5 (a standard sentence offence), the sentencing judge erred by:
(i) imposing sentences above the applicable standard sentence; and
(ii) failing to give adequate reasons for doing so.
3.The sentences imposed on charges 1, 2, 3, 5 and 6, and the orders for cumulation imposed in relation to charges 2, 3, 4 and 7, are manifestly excessive.
4.The sentencing judge erred in finding that the serious offender provisions in Part 2A of the Sentencing Act 1991 applied when sentencing the applicant for the Commonwealth offending (charges 2, 3, 4 and 7).
Ground 4
It is convenient to start with ground 4.
On the plea, the prosecution submitted that pt 2A of the Act applied to charges 2 to 7 on the indictment and that, in sentencing for those offences, the applicant fell to be sentenced as a ‘serious sexual offender’. The Act prescribes certain consequences that follow when a person is to be sentenced as a ‘serious offender’, which the Act provides includes a ‘serious sexual offender’. Section 6D deals with factors relevant to the length of the prison sentence to be imposed. In determining the length of the sentence to be imposed on a serious offender, the judge must regard the protection of the community from the offender as the principal purpose for which the sentence is imposed, and may for that purpose impose a sentence longer than that which is proportionate to the gravity of the relevant offence for which the person falls to be sentenced. Section 6E of the Act provides that every sentence imposed on a serious offender for a relevant offence must be served cumulatively on any uncompleted sentence, unless the judge otherwise orders. Section 6F provides that where a court sentences a serious offender for a relevant offence it must, at the time of doing so, cause to be entered in the records of the court the fact that the offender was sentenced as a serious offender.
As already observed, the judge accepted the prosecution submission that the applicant was to be sentenced as a serious sexual offender in respect of charges 2 to 7. As the respondent accepts, that was an error. Charges 2 to 7 are Commonwealth offences and pt 2A does not apply to them.[19]
[19]McKenzie v The Queen [2018] VSCA 34; Lyons v The Queen [2019] VSCA 242 (‘Lyons’).
Although the judge did not impose a disproportionate sentence, and may well have imposed the same sentence without reliance on the serious offender provisions, it is not possible to say that the judge’s recourse to pt 2A ‘could not have materially affected’ the sentence.[20] For that reason ground 4 must be upheld.
[20]Lyons [2019] VSCA 242; Dimovski v The Queen [2022] VSCA 6.
We shall defer consideration of the consequence of upholding this ground until we have considered the balance of the grounds.
Ground 1
In support of ground 1, the applicant submits that it was an error for the judge to find that his prospects of rehabilitation were ‘guarded at best’. In oral submissions, counsel for the applicant called this finding a major factor in the 12-year non-parole period imposed.
The applicant submits this finding was against the weight of the evidence, including Mr Hanley describing the applicant’s participation in treatment as ‘positive’, with the applicant engaging appropriately and expressing a desire to understand his problems and to make changes to his behaviour; and Mr Candlish’s opinions that the applicant presented with a moderate–low risk of reoffending and appeared to show good prospects for rehabilitation based on his presentation and history.
Counsel for the applicant also noted in oral submissions that the applicant had no prior convictions of this nature. Counsel submitted that there is a danger the truly shocking nature of the offending has swamped the assessment of prospects of rehabilitation.
The applicant submits the judge made this finding without affording him procedural fairness, citing Lennon v The Queen.[21] The applicant also submits that the judge failed to consider that, as part of serving a sentence of imprisonment, the community has the reasonable expectation that he will be provided with rehabilitative treatment as soon as possible,[22] particularly in light of him having demonstrated his willingness to engage with such treatment.
[21][2017] VSCA 85, [23]–[24] (Weinberg and Santamaria JJA, and Kidd AJA).
[22]DPP v Herrmann [2021] VSCA 160, [19] (Maxwell P, Kaye, Niall, T Forrest and Emerton JJA).
The respondent submits that this finding was not erroneous in light of the protracted nature of the offending, the problems identified by both psychologists in their reports and the pervasive nature of the interventions identified in order to manage risk. The respondent says that, in order to succeed, the applicant must demonstrate that the judge was reasonably bound to find that the prospects of rehabilitation were ‘good’. The respondent submits this is a hurdle too high to reach in all the circumstances.
In oral submissions counsel for the respondent submitted that a significant factor the judge considered in her assessment is the applicant’s lack of insight into his offending, in circumstances where there is no suggestion he was suffering from an illness that impacts judgment or rationality.
In relation to the applicant’s submission that he was not afforded procedural fairness regarding this finding, the respondent notes that during the plea hearing defence counsel referred to the findings of both psychologists in relation to the applicant’s willingness to engage in treatment and his prospects of rehabilitation and made submissions on the issue. The respondent submits that the judge was not bound to, and did not, indicate a concluded view on this topic, and a fair hearing was conducted with defence counsel given every opportunity to make submissions on the issue.
This ground must be rejected.
First, there was no denial of procedural fairness. The prospects of rehabilitation was an issue that was plainly raised on the plea by both parties and was a topic that was inevitably going to be considered by the judge. Both parties were afforded the opportunity, by submission and evidence, to address the topic.
It is true that during the plea the judge did not tell the applicant that she would not accept the evidence of Mr Candlish, and at one point the judge complimented the submission made on behalf of the applicant as being ‘fair and reasonable’. However, the judge was not bound to accept the opinion of Mr Candlish. Nor, in the circumstances, was the judge required to warn the applicant that she might not accept that evidence in its entirety. It was not submitted that the judge had induced the applicant into believing that the evidence of Mr Candlish would be accepted but even if that had occurred the applicant was not denied a fair opportunity from making submissions and adducing evidence. There was no practical injustice. The fact that the prosecution did not cross-examine Mr Candlish did not mean that the judge was required to accept everything that he had said in his reports.
Second, the judge’s conclusion that the applicant’s future prospects were ‘guarded at best’ was plainly open to her. Importantly, the judge was not prepared to accept that the applicant appreciated the harm that he had caused and she gave cogent reasons for qualifying her finding in relation to remorse. Those reasons included false denials by the applicant, a professed but implausible lack of memory and blame shifting. The applicant’s offending occurred in the context of a long history of drug use, which is notorious for being difficult to overcome, and involved ongoing offending of a most grave kind.
When these matters are brought together, the judge’s circumspect finding as to future prospects was well open.
Ground 2
In relation to ground 2, the applicant refers to the requirement under s 5B(5) of the Act that ‘[a]s part of its reasons under subsection (4), a court must refer to the standard sentence for the offence and explain how the sentence imposed by it relates to that standard sentence’. The applicant submits that the judge did not explain the reasons for why the sentence imposed on charge 5 was longer than the standard sentence, only stating that ‘a sentence above the standard sentence is warranted’.[23]
[23]Reasons, [83].
The applicant accepts that a standard sentence is only a legislative guidepost and does not affect the intuitive synthesis approach to sentencing. The applicant also accepts that the provisions in the Act dealing with the content of sentencing reasons must be viewed as subordinate to those prescribing the approach to sentencing and do not require an assessment of offence seriousness relative to the hypothesised mid-range offence.[24]
[24]Brown (2019) 59 VR 462, 474 [41] (Maxwell P, Priest, Kaye, T Forrest and Emerton JJA); [2019] VSCA 286.
However, the applicant submits that when one considers the subjective factors and matters in mitigation in this case, it cannot be correct for the sentence on charge 5 to be longer than the standard sentence, given the standard sentence has regard only to the objective factors affecting the relative seriousness of the offence. The applicant submits that the judge’s approach, and failure to provide adequate reasons, reflects an error of principle.
The respondent submits that the sentence for charge 5 was generally within the permissible range in light of the age of the victim and there being two occasions of conduct, both of which were recorded by the applicant (the respondent addresses this under the rubric of ground 3 ― manifest excess).
In response to the applicant’s submission that the judge failed to give adequate reasons, the respondent submits that the sentencing reasons were comprehensive in nature and expose the necessary reasoning as to why the sentence was appropriate. The respondent notes that a failure to provide ‘sufficient reasons’ is not an error that vitiates the sentencing decision.[25]
[25]DPP v Drake [2019] VSCA 293, [14]–[17] (Maxwell P , Priest , Kaye , T Forrest and Emerton JJA).
As the applicant acknowledges and as mentioned at paragraph [37] above, the judge referred to the decision of this Court in Brown and, in a footnote, the judge said that she must take into account the standard sentence and standard non-parole period in the same way as the maximum penalty and other relevant sentencing factors to arrive at an appropriate sentence by instinctive synthesis.[26]
[26]Reasons, [75] n 26.
Under this ground which relates to the sentence on charge 5, the applicant notes that the charge relates to two incidents which were 13 minutes apart and submits that the judge erred in imposing a sentence that was greater than the standard sentence. In relation to his complaint about the adequacy of reasons, he fastens on a single sentence in which the judge said that ‘In instinctively synthesising all relevant matters, in my view a sentence above the standard sentence is warranted in each case’.[27]
[27]Ibid [83].
The judge gave very detailed reasons which traversed the objective features of the offending and which highlighted why the judge regarded a number of the charges, including charge 5, as being serious examples of a serious offence. There can be no doubt that the judge was correct in that assessment.
Having regard to the many aggravating features of the offending, including that it occurred in the context of a parental relationship, the age of the victim, it involved a gross breach of trust and was undertaken for base sexual gratification, it was well open to the judge to impose a sentence on charge 5 that was higher than the standard sentence.
When read as a whole, the reasons for sentence provide ample explanation as to why the judge imposed the sentence that she did, including on charge 5. Necessarily, those reasons explain why she imposed a sentence on charge 5 that was greater than the standard sentence.
We reject ground 2.
Ground 3
The applicant submits that in light of the severity of a term of imprisonment increasing exponentially as it increases in length,[28] and the utilitarian discount for pleading guilty being significant for sexual offences involving children,[29] the sentences on charges 1, 2, 3, 5 and 6 and the orders for cumulation in relation to charges 2, 3, 4 and 7 were manifestly excessive.
[28]Azzopardi v The Queen (2011) 35 VR 43, 61 [62] (Redlich JA, with whom Coghlan JA and Macaulay AJA agreed); [2011] VSCA 372.
[29]Davy v The Queen [2011] VSCA 98, [34] (Bongiorno JA, with whom Harper and Hanson JJA agreed).
In relation to the presumption of cumulation for State charges and Commonwealth charges, counsel for the applicant noted in oral submissions that there was substantial concurrency in the actions giving rise to those respective charges and submitted that due consideration must be given to the principle of totality.
The respondent submits that in light of the circumstances of the offences and the sentencing considerations taken into account by the judge, the individual sentences of charges 1, 2, 3, 5 and 6 fell within the permissible range.
The respondent also submits that the cumulation orders for charges 2, 3, 4 and 7 were not manifestly excessive, the offending the subject of those charges added significantly to the overall criminality (including victim impact) and the overall cumulation of five years’ imprisonment reflected appropriate moderation of individual sentences in order to accommodate the principle of totality. In oral submissions the respondent submitted that the sentences under charges 2, 3, 4 and 7 were artificially low, which counters any complaints of cumulation.
In oral submissions the respondent’s position was that in the objectively horrific circumstances, the total effective sentence was within a permissible range. If any of the individual sentences are adjudged to be manifestly excessive, the respondent submits that a ‘no different sentence’ result is appropriate.
Given that we have upheld ground 4, it is not necessary for us to determine this ground. However, as will shortly appear, it is without merit.
Disposition
Section 280 of the Criminal Procedure Act 2009 provides that this Court may refuse leave to appeal under s 278 in relation to any ground of appeal if:
(a)there is no reasonable prospect that this Court would impose a less severe sentence than the sentence first imposed; or
(b)there is no reasonable prospect that this Court would reduce the total effective sentence despite there being an error in the sentence first imposed.
The sentencing exercise was a difficult one, made more difficult by the requirement to address both Commonwealth and Victorian sentencing regimes.
The offending covered two overlapping but distinct realms. The first related to the physical offending against the applicant’s children. Charge 1 was plainly the most serious. It involved prolonged offending over 17 days in which the applicant engaged in the most base sexual offending against his vulnerable children.
When compared with the applicant’s conduct that comprised charge 1, charges 5 and 6 were obviously less serious. They occurred on a single occasion. However they were serious in their own right. They involved separate and distinct criminality that was deserving of significant punishment and denunciation.
The second related to the Commonwealth offending which was distinct but also very grave. The applicant’s exploitation and abuse of his own children and the dissemination of images to various persons including for the purposes of obtaining other child abuse images in return was reprehensible. The applicant participated in a vile and pernicious practice that crosses international borders and which can only encourage and foster an environment for the ongoing serious sexual exploitation of children. That he did so, spruiking images of his own children adds to the gravity.
The applicant’s plea of guilty deserved very significant weight for its utilitarian value, especially in the context of the pandemic. However, there were few other powerful matters in mitigation. As already observed the judge’s assessment of the degree of remorse and prospects of rehabilitation was qualified and we agree with that assessment.
The applicant can gain no comfort from the fact that he was consuming drugs at the time and may have been intoxicated by them at the time of some of the offending. Despite having the reminder of his grave offending on his mobile phones the applicant persisted in his offending after a period of time that should have caused him to reflect on his conduct and desist. His attempt to minimise his responsibility by pointing to his intoxication and drug addiction was rightly a matter of concern for the judge.
In the circumstances, the judge was correct to ascribe a high degree of moral culpability on the part of the applicant.
The sentence on charge 1 was appropriate and were it necessary to resentence the applicant we would not reduce it. Likewise, the orders for cumulation made in respect of the other State offences and the Commonwealth offences were in the circumstances of this case lenient. That is particularly so in relation to the Commonwealth offending.
In the result we are satisfied that there is no reasonable prospect of this Court reducing the total effective sentence on any appeal. For that reason, leave to appeal must be refused.
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