Newton (a pseudonym) v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0053

ROOSEVELT NEWTON (A PSEUDONYM)[1]	Appellant
v
THE KING	Respondent

[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the appellant.

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JUDGES:	BEACH and MACAULAY JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	17 February 2023
DATE OF JUDGMENT:	22 February 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 22
JUDGMENT APPEALED FROM:	DPP v Newton (a pseudonym) (Unreported, County Court of Victoria, Judge Dean, 23 March 2022)

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CRIMINAL LAW – Appeal – Sentence – Incest (3 charges), indecent act with a child (2 charges) and sexual penetration of a step-child (2 charges) – TES of 14 years, with NPP of 10 years – Manifest excess – Whether sentences manifestly excessive – Sentences not manifestly excessive – Childhood disadvantage – Whether childhood deprivation reduced appellant’s moral culpability – Whether sentencing judge erred in not applying principles in Bugmy v The Queen (2013) 249 CLR 571 – Judge erred in not concluding that appellant’s moral culpability was reduced by childhood deprivation – Appeal allowed – Appellant re-sentenced to TES of 12 years and 6 months, with NPP of 8 years and 6 months.

Bugmy v The Queen (2013) 249 CLR 571 applied; DPP v Terrick (2009) 24 VR 457, DPP v Herrmann [2021] VSCA 160 and Sabbatucci v The Queen [2021] VSCA 340 referred to.

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Counsel
Applicant:		Mr M Reardon
Respondent:		Ms DI Piekusis KC with Ms R Barrett
Solicitors
Applicant:	Victoria Legal Aid
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

BEACH JA
MACAULAY JA:

On 4 November 2021, the appellant pleaded guilty in the County Court to three charges of incest,[2] two charges of committing an indecent act with a child under 16,[3] and two charges of sexual penetration of a step-child.[4] On 23 March 2022, following a plea hearing conducted on 4 November 2021 and 15 March 2022, the appellant was sentenced as follows:
[2]Contrary to s 44(2) of the Crimes Act 1958, as amended by the Crimes (Sexual Offences) Act 1991.
[3]Contrary to s 47(1) of the Crimes Act 1958, as amended by the Crimes (Sexual Offences) Act 2006.
[4]Contrary to s 50D(1) of the Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences) Act 2016.

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Incest	25 years	4 years	1 year
2	Incest	25 years	6 years	2 years
3	Indecent act with a child under 16	10 years	18 months	6 months
4	Incest	25 years	7 years	Base
5	Indecent act with a child under 16	10 years	18 months	6 months
6	Sexual penetration of a step-child	25 years	6 years	2 years
7	Sexual penetration of a step-child	25 years	4 years and 6 months	1 year
Total Effective Sentence:		14 years
Non-Parole Period:		10 years
Pre-sentence Detention Declared:		139 days
Section 6AAA Statement:		18 years, with a non-parole period of 14 years
Other Relevant Orders: 1. Sentenced as a serious sexual offender in respect of charges 3, 4, 5, 6 and 7. 2. Reporting period for life pursuant to s 34 of the Sex Offenders Registration Act 2004.

Pursuant to leave granted by this Court on 22 August 2022,[5] the appellant appeals against his sentence on the following grounds:
1.The sentencing judge erred in considering the appellant’s childhood disadvantage.
3.The individual sentences and orders for cumulation and non-parole period imposed are manifestly excessive.[6]
[5]Newton (a pseudonym) v The Queen (Unreported, Court of Appeal, T Forrest JA, 22 August 2022) (‘Leave Reasons’).
[6]Leave to appeal was refused in relation to proposed ground 2 which complained that the judge ‘erred in consideration of the appellant’s cognitive function’: Leave Reasons [46]-[47].

Circumstances of the offending

Borrowing from the Leave Reasons, the offending spanned a little over 14 years. The complainants are the appellant’s step-sons. In 2002, the appellant commenced a relationship with their mother and moved in with her in Gippsland. The older of her sons, TA, was then aged six, and the younger son, KC, was approximately six months old. The appellant and the complainants’ mother had a child together in 2004.
The Crown case was that the offending in relation to TA occurred between 24 July 2004 and 22 July 2006, when TA was aged between 8 and 10 years.
On one occasion the appellant took TA to stay at his step-brother’s house in Dandenong and insisted that they sleep in the same bed. That evening, in bed, the appellant began to kiss TA on the mouth. He then instructed TA to suck on his penis and penetrated TA’s mouth for approximately four to five minutes (charge 1 — incest).
Between 15 February and 12 April 2006, TA was watching television in the lounge room. The appellant entered and put a VHS video cassette into the VCR machine and played a pornographic film. He then took TA into a bedroom and kissed him for several minutes. The appellant then pulled down his pants, pushed TA’s head down and penetrated TA’s mouth with his penis. The appellant then bent TA over, positioned himself behind TA and penetrated TA’s anus with his penis (charge 2 — incest, rolled up charge). TA later said that he did not disclose this offending to his mother because the appellant ‘said he would hurt me’.
The offending against KC commenced five years later. While KC’s mother was at work, the appellant led KC to the main bedroom. The appellant undressed himself and both got onto the bed. The appellant began to kiss KC on the mouth. The appellant told KC to suck on his nipples (charge 3 — indecent act with a child under 16, rolled up charge). This took place between 3 July 2011 and 18 January 2012, when KC was aged between 9 and 10 years.
The family later moved into a different rental property. On an occasion between 3 July 2012 and 1 July 2014, KC was sitting in the lounge room with the appellant. They both undressed. The appellant then knelt down, placed KC’s penis into his mouth, withdrew it, applied lubricant to KC’s penis and inserted it into his anus. He then withdrew it and anally penetrated KC (charge 4 — incest, rolled up charge). On the same occasion, the appellant masturbated KC’s penis. The appellant then laid down on the lounge room floor and KC was instructed to masturbate the appellant’s penis until he ejaculated (charge 5 — indecent act with child under 16, rolled up charge).
Between 1 July 2017 and 1 February 2018, when KC was 15, the appellant engaged in three acts of oral sexual penetration with the complainant in the bed the appellant shared with his wife (charge 6 — sexual penetration of a step-child, rolled-up charge).
In November 2018, the complainants’ mother was living in a separate home due to her work commitments. She told KC, who was at this stage aged 16, to stay overnight with the appellant. The following morning, KC was sitting in the lounge room reading a book when the appellant entered the room naked. The appellant then put on a pair of pants and sat down in front of KC. The appellant began to touch KC’s penis over his clothing and started pulling down KC’s pants. KC tried, in vain, to clench his legs to prevent the appellant from continuing. The appellant put KC’s penis into his mouth. KC became upset and told the appellant to stop (charge 7 — sexual penetration of a step-child).
The appellant was arrested and interviewed by police on 29 October 2019. He denied the offending during his record of interview.

Sentencing reasons

The judge commenced his reasons for sentence by noting that charges 2, 3, 4, 5 and 6 were rolled up charges, permitting him to take into account the multiple acts that comprised each of those charges, in arriving at appropriate sentences, but constrained by the maximum penalty for a single instance of each specific offence.[7]
[7]DPP v Newton (a pseudonym) (Unreported, County Court of Victoria, Judge Dean, 23 March 2022), [2] (‘Sentencing Reasons’).
The judge then noted that the applicant had pleaded guilty at a committal mention, and that the victims of his offending were not called for cross-examination. The judge said that the appellant’s plea had facilitated the administration of criminal justice during the COVID-19 pandemic and spared his victims the trauma of court proceedings. His Honour also accepted that the appellant’s pleas of guilty were ‘evidence of some remorse for [his] offending’.[8] The judge said that he had taken the appellant’s ‘high value pleas of guilty’ into account in the appellant’s favour in mitigation of sentence.[9]
[8]Ibid [3].
[9]Ibid [4].
The judge noted that the appellant had a ‘limited criminal history’, more than 20 years ago, and said that this was ‘of no significance for sentencing purposes in this case’.[10]
[10]Ibid [5].
The judge summarised the appellant’s offending,[11] before saying:
The gravity of this offending cannot, in my opinion, be overstated. In a gross breach of the trust placed in you by two young boys and their hardworking mother, you preyed upon them over a period of 14 years to satisfy your criminal sexual urges. Your offending in relation to your eldest stepson occurred when he was aged between eight and 10 years. Your offending in relation to your younger victim began when he was just nine years old and continued until he was 16.
The acts performed by you were of the utmost seriousness and in my opinion, all of the charges you have pleaded guilty to are correspondingly serious examples of these offences.[12]
[11]Ibid [7]–[17].
[12]Ibid [18]–[19].
The judge referred to the victim impact statements of the two complainants and their mother. The judge referred to TA attesting to suffering post-traumatic stress disorder as a result of the appellant’s offending, and also to the ‘profound impact it has had upon his quality and enjoyment of life’. The judge noted that KC attested ‘to the profound trauma he also suffers from and its devastating effect on his life’.[13] The judge then said:
Offending of this nature threatens the fundamental foundations upon which a secure and healthy society is built; this sentence must be calculated to protect children and their parents from predators like you.
This court must unequivocally state that conviction for offending of this grave nature will be met with the imposition of a very substantial term of imprisonment.
Furthermore, in my opinion, specific deterrence is a prominent sentencing consideration in this case. You have been diagnosed as suffering from paedophilic disorder, and you are a moderate to high risk of reoffending.
Your offending concerned two victims, was protracted and, as I have said, involved acts of criminal sexual penetration of the utmost seriousness. For this offending, you will also be punished, and your conduct denounced by this Court on behalf of the community.[14]
[13]Ibid [20].
[14]Ibid [21]–[24].
The judge then turned to the appellant’s personal circumstances. Having regard to the terms of proposed ground 1, it is appropriate to set out in full what the judge said about the appellant’s childhood and related personal circumstances. His Honour said:
You were born in 1980 and are now aged 41. You are the only child of your parents' relationship, and you have the continuing support of your father, who attended the court proceedings and provided a helpful reference in relation to your formative years.
You parents separated when you were three years old, and your mother re-partnered with a man who was violent towards you, your mother, and other family members. This abuse was compounded by your delayed personal development, and you struggled at school and socially. You developed a speech impediment which was, however, successfully treated with appropriate speech therapy. Your schooling was, to some degree, disrupted by the family moving house, and you left high school having completed Year 9.
I accept that the abuse you suffered at the hands of your stepfather had a detrimental and traumatic impact upon you, although you did not suffer sexual abuse in your formative years. However, it also appears that the trauma you suffered did not lead to disciplinary problems at school and following leaving school you trained as a bricklayer, and then worked in a number of semiskilled occupations.
Apart from a period of WorkCover following a back injury, you have been in full employment since the age of 15. You abused alcohol in your early 20s, although this was on a monthly basis, and you also abused cannabis and some stimulants during this period, but you have not been treated for any substance abuse disorder.
In my opinion, your background and formative years cannot be described as profoundly traumatic or significantly disadvantaged. Rather, your childhood was disrupted, but this is not an uncommon experience for many people growing up.
…
Whilst it would appear that your social development was to some degree impaired by your disrupted childhood, in my opinion there is no basis for the principles enunciated by the High Court of Australia in Bugmy v The Queen [2013] HCA 37 to be engaged in your case.
Your background was not one of significant childhood deprivation, as that term is properly understood and since leaving school you have been able to live a relatively stable life. Furthermore, there is nothing in your background that can be realistically linked to your offending behaviour.[15]
[15]Ibid [26]–[30], [32]–[33].
On the plea, the appellant relied upon a report from Patrick Newton, a clinical and forensic psychologist. The judge described Mr Newton’s report in some detail,[16] noting:
•Mr Newton’s opinion that the appellant suffered from poor social and communication skills;
•Mr Newton’s opinion that the appellant derived ‘clear sexual gratification’ from his crimes;
•the appellant’s statement to Mr Newton that, ‘they [the victims] seemed to like it and I enjoyed it, so I thought why not’, and Mr Newton’s opinion that this statement was ‘profoundly problematic’, pointing to severe problems with the appellant’s psychosexual adjustment;
•that, in his consultation with Mr Newton, the appellant demonstrated little or no insight into the seriousness of his crimes and the harm caused by them; and
•Mr Newton’s conclusion that the appellant met ‘the diagnostic criteria for paedophilic disorder, non-exclusive type, confined to incest, sexually attracted to males’.
[16]Ibid [31], [34]–[36].
Having set out Mr Newton’s conclusion, the judge said that it was clear that the protection of the community from the appellant was a prominent sentencing consideration.[17]
[17]Ibid [36].
On the plea, the appellant also relied upon a report from a clinical neuropsychologist, Anna McLaren. The judge described this report as having been prepared primarily in response to Mr Newton’s opinion that the appellant was of below average intelligence. The judge noted Ms McLaren’s conclusion that the appellant’s intellectual functioning was ‘within the borderline and low average ranges’.[18]
[18]Ibid [37].
The judge noted that the appellant was not suffering from an intellectual disability.[19] He also said that there was no cogent evidence in either the report of Mr Newton or the report of Ms McLaren to engage the principles referred to in R v Verdins.[20] The judge did, however, accept that the appellant suffered from significant levels of stress and anxiety, resulting in him being admitted to hospital when his offending came to light, and his wife immediately leaving the family home.[21]
[19]Ibid [38].
[20](2007) 16 VR 269.
[21]Sentencing Reasons [40].
The judge said that the appellant’s prospects for rehabilitation had to be approached with a ‘high degree of caution’, noting that the appellant met the criteria for paedophilic disorder and had poor insight into the destructive effect of sexual offending against children. The judge again noted Mr Newton’s opinion that the appellant posed a moderate to high risk of recidivism for sexual offending.[22]
[22]Ibid [41].
The judge observed that charge 7 was a standard sentence offence, saying he had taken that sentence (10 years) into account in arriving at the appropriate proportionate sentence in respect of that charge.[23] For completeness, we would note that charge 6, which charged the same offence as charge 7, was not a standard sentence offence because it was committed before the standard sentence regime came into operation.
[23]Ibid [42].
The judge noted that, in relation to charges 3 to 7, the appellant fell to be sentenced as a serious sexual offender, and protection of the community was the principal purpose for which the sentences on those charges were to be imposed.[24] His Honour observed, however, that the prosecution did not submit that disproportionate sentences should be imposed, and then said that he had not done so.[25]
[24]Ibid [43].
[25]Ibid.
Finally, the judge noted that the appellant had been remanded in custody during the COVID-19 pandemic. His Honour said that he accepted that this had increased, and would continue to increase, the hardship of imprisonment on the appellant because of the restrictions in place in the corrections system.[26]
[26]Ibid [44].

Appellant’s submissions

Ground 1: the appellant’s childhood disadvantage

On the plea, the appellant relied upon the principles in Bugmy v The Queen[27] in mitigation of sentence. In this Court, he submitted that the ‘most salient aspect of [his] childhood was the abuse he suffered at the hands of his stepfather’, a violent alcoholic. The appellant’s case on the plea was that, approximately weekly, his stepfather would physically abuse him by punching and throwing him against walls and generally manhandling him. It was put to the judge that this occurred from when the appellant was young up until he was about 16 years old and could defend himself. The appellant contended that, as a result of having been subjected to this violence, it was not open to the judge to reject the application of Bugmy. In support of this contention, the appellant submitted:
[27](2013) 249 CLR 571 (‘Bugmy’).
(1)First, it was not open to classify the appellant’s childhood experiences as being merely ‘disrupted’ or ‘not an uncommon experience’. Such characterisation significantly understated the impact and extent of the violence the appellant suffered at the hands of his stepfather during his formative years. Further, the judge was still required to take into account the appellant’s disadvantage when imposing sentence notwithstanding such disadvantage was not uncommon for criminal offenders.
(2)Second, the judge erred in limiting the application of Bugmy to disadvantage that is ‘profound or significant’. This impermissibly placed a gloss on the principle.
(3)Third, the appellant’s work history did not sufficiently support the judge’s finding that the appellant was able to live a ‘relatively stable life’ despite his childhood experiences. Mr Newton’s opinion that the appellant had significantly deficit social skills, causing ‘profound difficulties in the area of sexuality’ and ‘have their origin in the disrupted attachments and abuse of his childhood’, told against the judge’s finding.
(4)Fourth, it was not open to the judge to find that there was no realistic link between the appellant’s childhood disadvantage and the offending.
(5)Fifth, the context of the appellant suffering abuse by his stepfather was particularly relevant because the gravity of the appellant’s offending was magnified by his trusted position as stepfather to the complainants. The appellant’s moral culpability was different from a person whose relationship with parental figures was not marred by physical abuse.
(6)Sixth, the principles referred to in Bugmy applied even if no causal nexus between the appellant’s disadvantaged childhood and the offending could be established.

Ground 3: manifest excess

The appellant accepted that his offending was ‘very serious and caused profound harm to the victims’. He submitted that, notwithstanding the seriousness of his offending and the profound harm caused, the offending lacked what he contended were common aggravating features for offending of this type. Specifically:
•there was no additional physical violence or degradation beyond that inherent in the offending itself;
•the offending did not involve additional acts of degradation or humiliation;
•the offending was not committed in the presence of, nor did it involve, other people;
•the victims did not have any additional vulnerability beyond their young age;
•with the exception of charge 2, the offending conduct was not accompanied by overt coercion and threats of harm;
•with the exception of charge 5, the offending conduct did not involve ejaculation; and
•the appellant did not persist in offending when told to stop.
The appellant submitted that matters in mitigation were given insufficient weight and not reflected in the sentences imposed. The appellant had entered an early plea of guilty at a committal mention during the COVID-19 pandemic. While a term of imprisonment is particularly burdensome because of the pandemic, it was more burdensome to the appellant because of his vulnerability due to respiratory health conditions.
The appellant also submitted that, notwithstanding the impact of the serious offender provisions, totality was an important sentencing consideration. Moreover, notwithstanding that he was not sentenced on charges 1 and 2 as a serious sexual offender, the orders for cumulation on those charges do not reflect any difference in the application of totality when compared to charges 3 to 7, on which the appellant was sentenced as a serious sexual offender.
Finally, the appellant submitted that ‘additional support for the sentence being beyond the range available’ could be found from this Court’s decision in Boxer (a pseudonym) v The Queen.[28] The offender in Boxer was convicted of a number of charges, including incest, following a trial. He was originally sentenced to a total effective sentence of 16 years and 3 months, with a non-parole period of 13 years. On appeal, he was resentenced to 13 years and 9 months, with a non-parole period of 10 years. The appellant contended that the facts and sentence ultimately imposed in Boxer demonstrates that the sentences imposed in the present case are manifestly excessive.
[28][2021] VSCA 300 (Niall and Walker JJA) (‘Boxer’).

Respondent’s submissions

Ground 1: the appellant’s childhood disadvantage

The respondent noted that the judge accepted that the appellant had suffered abuse from his stepfather which had a detrimental and traumatic impact upon the appellant and disrupted his childhood. It also submitted that the judge took ‘great care on the plea to examine the personal circumstances and background of the appellant, and to assess any possible link to his offending based on the psychological material tendered on his behalf’.
The respondent contended that it was open to the judge to find that the appellant’s childhood was not so profoundly traumatic or significantly disadvantaged that the principles in Bugmy were enlivened. The respondent also submitted that it was open to the judge to find that there was no link between any childhood disadvantage and the appellant’s offending; and that it was the appellant’s paedophilic disorder which was the ‘driving cause’ of the offending.
The respondent submitted that this Court’s decision in Sabbatucci v The Queen[29] was apposite to the present case. The respondent noted that the offender in Sabbatucci had been exposed to domestic violence from an early age, but subsequently had stable work and relationship histories, indicative of a degree of stability in the offender’s adult years. The court in Sabbatucci held there was no error in the sentencing judge in that case failing to conclude that Mr Sabbatucci’s moral culpability was reduced as a result of his childhood circumstances.

Ground 3: manifest excess

[29][2021] VSCA 340 (Maxwell P and Emerton JA) (‘Sabbatucci’).

The respondent submitted that the sentences imposed, and orders made, by the judge were all within the range reasonably available to his Honour. The sentencing reasons showed that his Honour considered each of the mitigating factors raised by the appellant, including:
•the appellant’s early plea of guilty, facilitating the administration of justice during the COVID-19 pandemic and indicating remorse;
•the appellant’s limited criminal history;
•the appellant’s personal circumstances, including a childhood marked by abuse and a strong work history;
•the appellant’s significant levels of stress and anxiety; and
•the increased hardship of being in custody during the pandemic.
The respondent submitted that the judge correctly characterised the appellant’s offending as ‘serious examples’ of the offences, given the ‘gross’ breach of trust involved, the young ages of the victims, and the duration of the offending. The respondent noted that charges 2 to 6 were rolled-up charges. It also submitted that it was not a mitigating factor that the offending was unaccompanied by further violence. The offending was persistent and recurrent. Additionally, the respondent noted that no condom was worn during any of the offending, exposing the appellant’s victims to the risk of sexually transmitted diseases. Moreover, on each occasion the appellant offended, his victims’ mother was not at home, rendering them more vulnerable. The offending was largely committed in the family home, a place in which the appellant’s victims were entitled to feel safe.

Consideration

In Bugmy, the High Court explained the two different ways in which childhood deprivation may potentially be relevant to the assessment of moral culpability.[30] The first, and more general way, was expressed as follows:
The circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way.[31]
And the second, more specific way, was expressed in these terms:
An offender’s childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence when frustrated such that the offender’s moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.[32]
[30]See also DPP v Herrmann [2021] VSCA 160, [36]–[46] (Maxwell P, Kaye, Niall, T Forrest and Emerton JJA) (‘Herrmann’).
[31]Bugmy (2013) 249 CLR 571, 594 [40].
[32]Ibid 595 [44].
The High Court then observed that ‘the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending’.[33] Nothing in this part of the Court’s judgment, however, imposed any requirement that childhood deprivation must be ‘profound’ before a sentencing judge is able to consider whether that deprivation might be relevant to the assessment of moral culpability. As was subsequently said in Sabbatucci:
Whether, and to what extent, social disadvantage warrants a reduction in moral culpability in a particular case falls to be assessed by reference to the nature and circumstances of the offence, the nature and severity of the disadvantage suffered and whether the effects of the disadvantage can be seen to be in any way explanatory of the offending.[34]
[33]Ibid.
[34]Sabbatucci [2021] VSCA 340, [6].
Similarly, albeit prior to Bugmy, in DPP v Terrick,[35] after observing that the individual circumstances of an offender are always relevant to sentencing,[36] and in a passage consistent with Bugmy and the decisions that have followed it, this Court said:
An offender’s background may explain the offending conduct, though whether it provides an excuse is a separate question. Background circumstances may affect the assessment of moral culpability and in addition (or in the alternative) may require some moderation of general or specific deterrence or the need for denunciation or may bear upon prospects of rehabilitation.[37]
[35](2009) 24 VR 457 (Maxwell P, Redlich JA and Robson AJA) (‘Terrick’), cited with approval in Bui v The Queen [2015] VSCA 313, [44] (Redlich and Whelan JJA). See also Sabbatucci [2021] VSCA 340, [23], n 11.
[36]Terrick (2009) 24 VR 457, 468 [46].
[37]Ibid 469 [47] (citations omitted).
The material tendered on the plea described the physical abuse of the appellant by his stepfather. There were descriptions in Mr Newton’s report, Ms McLaren’s report and the reference tendered from the appellant’s father. In a lengthy and detailed written submission, the appellant’s plea counsel described the abuse as follows:
[T]he physical abuse consisted of being punched, thrown against walls and generally manhandled. It occurred frequently (approximately weekly) from a young age up until he was about 16 years old and could defend himself. His stepfather was a school principal of solid build and an alcoholic who would drink heavily every night. He would verbally and physically abuse his mother.
In the written plea submissions, and during the plea hearing, the appellant relied upon this abuse as lowering his moral culpability for the offending in both of the ways identified by the High Court in Bugmy. Moreover, at no stage during the course of the plea did the prosecutor contest the level of abuse to which the appellant was subjected by his stepfather or that Bugmy had any application in this case.
While the judge accepted that the abuse suffered by the appellant at the hands of his stepfather had a detrimental and traumatic impact upon him,[38] he concluded that there was ‘no basis for the principles … in Bugmy … to be engaged …’.[39] His Honour gave three reasons for this conclusion: first, the appellant’s background ‘was not one of significant childhood deprivation, as that term is properly understood’;[40] second, the appellant had been able to live a relatively stable life since leaving school; and third, there was nothing in the appellant’s background that could be ‘realistically linked’ to the appellant’s offending.[41]
[38]Sentencing Reasons [27]–[28].
[39]Ibid [32].
[40]Ibid [33].
[41]Ibid.
While we do not doubt that the judge took into account the abuse of the appellant by his stepfather as a relevant background circumstance when imposing sentence,[42] a fair reading of the Sentencing Reasons indicates that his Honour did not consider any reduction in the appellant’s moral culpability was appropriate because the level of deprivation was not sufficiently significant or profound to engage the principles in Bugmy.
[42]See Terrick (2009) 24 VR 457, 468 [46].
In concluding that the appellant’s background ‘was not one of significant childhood deprivation, as that term is properly understood’, the judge determined that childhood deprivation could not be taken into account in either the general way (requiring no causal nexus) or the specific way (requiring a causal nexus) identified in Bugmy. The judge’s third reason (that there was nothing in the appellant’s background that could be ‘realistically linked’ to the appellant’s offending) only precluded his Honour from taking the appellant’s childhood deprivation into account in the specific way permitted by Bugmy. To the extent that his Honour determined that the more general way that childhood deprivation might be taken into account could not apply in this case because there was no causal link, his Honour erred.
His Honour’s second reason for concluding that the principles in Bugmy were not engaged (the appellant had been able to live a relatively stable life since leaving school) may have been used by his Honour to reject both the general way and the specific way childhood deprivation may potentially be relevant. His Honour may have concluded that, because the appellant had been able to live a relatively stable life since leaving school, any childhood deprivation cannot have been sufficiently significant. On the other hand, his Honour may have been saying that the fact of living a relatively stable adult life told against any causal link between the appellant’s childhood deprivation and his offending. In any event, given his Honour’s first reason for rejecting any application of Bugmy, it is not necessary for us to resolve the question of whether his Honour also concluded that Bugmy had no application because of his Honour’s second reason.
It was not contested on the plea that the appellant had suffered from significant physical abuse committed by his stepfather during the appellant’s formative years. The fact that other offenders in other cases may have been subjected to more significant or more profound childhood deprivation does not mean that the appellant’s childhood deprivation should not have been properly considered as having the potential to reduce the appellant’s moral culpability in the general way described in Bugmy. On the uncontested material tendered on the plea, the appellant was entitled to some (albeit a modest) reduction in moral culpability without the need to establish any causal link between his childhood deprivation and his offending. To the extent the judge concluded otherwise, with respect, he erred.
As to the second (specific) way in which childhood deprivation might be relevant, we see no error in the judge’s conclusions. In our view, it was open to the judge to conclude that the appellant had not established a causal link between his childhood deprivation and his offending. It is to be remembered that the abuse of the appellant by his stepfather was physical, not sexual. That is not to say that there never can be a causal link between physical abuse and sexual offending. While there are passages in Mr Newton’s report that suggest a link between the physical abuse of the appellant as a child, the appellant’s ‘social-skills problems’, the appellant’s preferential interest in ‘pornography as a social outlet’, and the appellant seeking ‘gratification of these desires with his stepchildren’, it was open to the judge to conclude that the appellant’s paedophilic disorder was the driving cause of his offending. In this regard we note Mr Newton’s opinion:
Over the course of approximately 14 years, [the appellant] engaged in repeated acts of penetrative and non-penetrative sexual contact with his stepchildren. He found the conduct sexually gratifying and persisted with it despite an awareness of its wrongfulness. His behaviour was underpinned by a range of distortions (perceiving the victims to be willing participants who enjoyed the contact and downplaying any indications of distress on their part) and was founded on a fundamentally erroneous view of the psychosexual development of young people, a distorted understanding of familial interactions and a lack of understanding of interpersonal ‘boundaries’ more generally. These issues point to severe psychosexual deviance which underpinned [the appellant’s] offending conduct.
Having concluded that the judge erred in failing to conclude that there should be a modest reduction in the appellant’s moral culpability by reason of his childhood deprivation, the question that now arises is whether a different sentence or sentences should be imposed.[43] Before determining that question, we should briefly address the appellant’s complaint of manifest excess (albeit that, having found error, in determining whether a different sentence should now be passed, that question does not depend on this Court also concluding that the sentence originally passed was manifestly excessive).
[43]See s 281(1) of the Criminal Procedure Act 2009.
Contrary to the appellant’s submissions, there is nothing excessive about the individual sentences imposed by the judge on each of the charges. In our view, the individual sentences were moderate. While the orders for cumulation have led to a total effective sentence which the leave judge concluded was ‘a stern sentence for grave criminal misconduct’,[44] had there been no error in the sentence imposed by the judge, we would not have concluded that any of the judge’s sentences or orders were outside the permissible range or manifestly excessive. As has been said many times before, the ground of manifest excess will only succeed if it can be shown that the sentence imposed was wholly outside the range of sentencing options available to the sentencing judge.[45] 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 the offender. As has also been said many times, this is a stringent requirement, difficult to satisfy.[46] In the present case, while the total effective sentence may be ‘stern’, when all of the facts of the offending and the offender are properly synthesised, it cannot be said that any of the sentences or orders made by the judge were wholly outside the relevant permissible ranges.
[44]Leave Reasons, [45].
[45]Clarkson v The Queen (2011) 32 VR 361, 384 [89].
[46]Ibid.
However, as we have already said, that is not the end of this appeal. Sentencing error having been established, it falls to this Court to determine whether any different sentences (within the permissible range) should now be imposed.
The sentences on each individual charge being moderate, we see no basis for setting any of them aside or imposing any different sentences. Noting that the sentence imposed on charge 4 was the base sentence, the same may be said in respect of the orders for cumulation in relation to charges 3 to 7, upon which the appellant was sentenced as a serious sexual offender. We have reached a different conclusion, however, in respect of the orders for cumulation on charges 1 and 2 (upon which the appellant was not sentenced as a serious sexual offender). In our view, different orders for cumulation should be made in respect of those charges. Specifically, we would set aside the order for cumulation of 1 year on charge 1, and in lieu order cumulation of 6 months. Similarly, on charge 2 we would set aside the order for cumulation of 2 years, and in lieu order cumulation of 1 year. The effect of these orders would be to make a new total effective sentence of 12 years and 6 months. In the circumstances, we would fix a non-parole period of 8 years and 6 months.

Conclusion

The appeal will be allowed. The orders for cumulation on charges 1 and 2 will be set aside and, in their place, orders for cumulation of 6 months on charge 1 and 1 year on charge 2 will be made. Thus, the appellant will be resentenced to a total effective sentence of 12 years and 6 months’ imprisonment. We will fix a non-parole period of 8 years and 6 months.
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[2023] VSCA 22

22 February 2023