Packard (a pseudonym) v The Queen

[2022] VSCA 128

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0078

SHANNON PACKARD (A PSEUDONYM)[1]	Applicant
v
THE QUEEN	Respondent

[1]To ensure that there is no possibility of identification of the victim of the sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the applicant’s name.

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JUDGES:	PRIEST, KYROU and WALKER JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	9 June 2022
DATE OF JUDGMENT:	30 June 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 128
JUDGMENT APPEALED FROM:	DPP v Packard (a pseudonym) (Unreported, County Court, Judge Pullen, 11 November 2016)

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CRIMINAL LAW – Appeal – Sentence – Fresh evidence – Applicant convicted of charges of incest and possession of child pornography – Sentenced as male – Gender identity raised on plea in relation to onerousness of imprisonment – Commenced gender transition while in prison – Alleged victim of rape, assault, sexual assault and sexual harassment while in prison – Whether transition and events in prison demonstrate true significance of facts in existence at time of sentence – Offending of a serious and disturbing kind – No reasonable prospect of less severe sentence – Application for leave to appeal refused – Criminal Procedure Act 2009, s 280.

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Counsel
Applicant:		Ms CA Boston with Ms H Canham
Respondent:		Mr CB Boyce QC
Solicitors
Applicant:	Victoria Legal Aid
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA:

1. Substantially for the reasons advanced by Kyrou and Walker JJA, I would grant an extension of time, but refuse leave to appeal against sentence.  I wish, however, to make some observations of my own with respect to fresh or new evidence.  In so doing, I am relieved from the obligation of recapitulating to any great extent the factual background, the ‘fresh’ evidence relied upon by the applicant or the submissions of the parties, all of which have been set out in detail in the joint reasons.

2. The thrust of the applicant’s case is that ‘fresh’ evidence demonstrates that, as a result of the applicant’s ‘gender identity’, the burden of incarceration has been much greater than was anticipated at the time of sentence.  In particular, it is contended that the applicant’s gender identity has resulted in imprisonment being much more onerous than for prisoners whose gender identity matches their anatomical sex at birth, first, because the applicant has been the victim of rape, physical assaults and harassment and bullying in custody; and, secondly, because the applicant’s willingness to assist the authorities to bring the perpetrators to justice has resulted in further harassment, isolation, fear and anxiety.

3. By virtue of s 281(1)(a) of the Criminal Procedure Act 2009 (‘CPA’), when a person sentenced for an offence by an originating court[2] challenges the sentence, this Court’s intervention is warranted only if satisfied that there is ‘an error in the sentence first imposed’.[3] 

   [2]That is, the County Court in its original jurisdiction or the Trial Division of the Supreme Court in its original jurisdiction: see CPA, s 3(1).

   [3]And only if satisfied that a different sentence should be imposed: CPA, s 281(1)(b).

4. Necessity for ‘error in the sentence first imposed’ ordinarily dictates that the Court will not intervene unless it appears that the sentencing judge

   has made a mistake as to the facts, or has acted on an erroneous principle of law, or has taken into account some matters which should not be taken into account, or has failed to take into account matters which should have been taken into account, or has clearly given insufficient weight, or excessive weight, to some matter taken into account, or unless the sentence is obviously – not merely arguably – too severe or too lenient, it will not interfere.[4]

   [4]R v Taylor and O’Meally [1958] VR 285, 289 (Lowe and Gavan Duffy JJ).

5. For many years, however, in confined cases, appellate courts in sentence appeals have received ‘fresh’ or ‘new’ evidence throwing light on facts that existed at the time of sentence, where the true significance of those facts was not fully appreciated. 

6. The distinction between fresh and new evidence was very recently discussed by Hamill J in Barnes.[5]  He observed (Gleeson JA and Ierace J concurring):[6]

   The case law draws a distinction between ‘fresh’ and ‘new’ evidence. Evidence will constitute ‘fresh evidence’ if it was not available to a party, ‘could not have been discovered with the exercise of reasonable diligence’ at the time of sentence,[7] and its admission will depend on whether it had the ‘capacity to affect the outcome of proceedings at first instance’.[8]  ‘New’ evidence is material that was available but not used, or was discoverable with reasonable diligence at the time of sentence.[9]  Fresh evidence is received more readily than new evidence.

   [5]Barnes v The Queen [2022] NSWCCA 140 (‘Barnes’).

   [6]Ibid [28] (citations as in original).

   [7]Lawless v The Queen (1979) 142 CLR 659 at 675; [1979] HCA 49.

   [8]Khoury v R [2011] NSWCCA 118; (2011) 209 A Crim R 509 at [108] (Simpson J); Hoang v R [2020] NSWCCA 324 at [16].

   [9]Khoury v R [2011] NSWCCA 118; (2011) 209 A Crim R 509 at [107].

7. Hamill J went on to observe that the dichotomy is of greater significance in appeals against conviction,[10] and that the prevailing approach of the NSW Court of Criminal Appeal to both kinds of evidence is as set out by the High Court in Betts.[11]

   [10]Barnes, [29], citing See, for example, Ratten v The Queen (1974) 131 CLR 510, 516-519; and Mickelberg v The Queen (1989) 167 CLR 259.

   [11]Betts v The Queen (2016) 258 CLR 420, 425–6 [10] (French CJ, Kiefel, Bell, Gageler and Gordon JJ) (‘Betts’). 

8. In Barnes and Betts, the relevant appeals were governed by s 6(3) of the Criminal Appeal Act 1912 (NSW), which bears some – though not complete – similarity to the now repealed s 568(4) of Crimes Act 1958, an immediate forerunner of s 281(1) of the CPA. Prior to the enactment of s 281(1), s 567(d) of the Crimes Act 1958 permitted a person convicted on indictment to appeal ‘with the leave of the Court of Appeal against the sentence passed on his conviction, unless the sentence is one fixed by law’. And s 568(4) provided:

   On an appeal against sentence the Court of Appeal shall, if it thinks that a different sentence should have been passed or a different order made, quash the sentence passed at the trial and pass such other sentence or make such other order warranted in law (whether more or less severe) in substitution therefor as it thinks ought to have been passed or made, and in any other case shall dismiss the appeal. 

9. Historically, the ‘dichotomy’ between fresh and new evidence recognised in Barnes (and the cases there cited) does not appear to have been given much attention in sentence appeals in this State.  Indeed, in recent years, there appears to have been no practical distinction drawn between the two species of evidence.

10. In the seminal case of Babic,[12] which was an application for leave to appeal against sentence imposed for recklessly causing serious injury, counsel for the applicant had in effect submitted that any event after sentence which will make the sentence bear considerably more heavily on the prisoner can lead to a revision of the sentence by an appellate court. Brooking JA (with whom Winneke P and Ashley AJA agreed) rejected that submission, however, and observed that it was ‘contrary to much weighty authority’ and ‘contrary … to s 568(4) of the Crimes Act 1958’.[13] In that case, the applicant had, whilst serving a sentence of imprisonment imposed some two months previously, injured his back working in the prison garden. Evidence suggested that the burden of imprisonment would be harsher for the applicant as the result of physical disability resulting from his back injury. Applying s 568(4) (and s 574) of the Crimes Act 1958, Brooking JA observed:[14]

    Before further evidence is ever received by the court on such an application, the applicant must seek and obtain a favourable exercise of the court’s discretion.

    The present case does not concern evidence of events occurring prior to sentence, as to which it has been held by courts of criminal appeal that, even though the new evidence is not fresh evidence, it may be received on appeal in order to avoid a miscarriage of justice: R v Abbott (1985) 17 A Crim R 355; R v Many (1990) 51 A Crim R 54 at 61-2; R v Knights (1993) 70 A Crim R 105; R v Maslen and Shaw (1995) 79 A Crim R 199 at 206-7. The present case concerns evidence of events after sentence. Evidence of an event occurring after sentence which is said to make the sentence passed excessive will not be received, the correct analysis being, in my view, not that the evidence will not be received as a matter of discretion, but that it will not be received because it is not admissible.

    The suggestion that some subsequent event has made a sentence, appropriate when passed, excessive is a matter for consideration by the Executive in the exercise of the prerogative of mercy, not by an appellate court: R v Munday [1981] 2 NSWLR 177 at 178; R v Cartwright (1989) 17 NSWLR 243 at 257 per Hunt and Badgery-Parker JJ; R v Many (1990) 51 A Crim R 54 at 61-2; R v Maslen and Shaw (1995) 79 A Crim R 199 at 206-7.

    [12]        R v Babic [1998] 2 VR 79 (‘Babic’).

    [13]Ibid 80.

    [14]Ibid.

11. Babic was decided in May 1997.  Later that same year, in WEF,[15] the Court turned its attention to ‘new’ evidence for the purposes of an application for leave to appeal against sentence for sexual offences.[16]  The applicant sought to rely on medical evidence not available at the time of sentencing which showed that he had suffered kidney failure.  It appeared that the kidney failure was the manifestation of renal disease related to an underlying diabetic disorder; and that, although the sentencing judge had been aware of the diabetic disorder, he had not been aware of the renal disease.  Winneke P said (Charles JA and Hampel AJA agreeing):[17]

    The circumstances in which this court will entertain new evidence relating to events which are alleged to have supervened after sentence are rare and exceptional.  In normal circumstances, if it is suggested that subsequent events have made or made to appear a sentence, appropriate when passed, manifestly excessive, then that is a matter for the consideration of the Executive in the exercise of the prerogative of mercy and not a matter for an appellate court.  The authorities for this proposition have been collected and explained by this court recently in the case of R v Babic [1998] 2 VR 79, per Brooking JA at 80–1.

    However, this court has recognised that there is a rare exception to this otherwise fundamental rule.  The court will receive evidence of events occurring after sentence, in appropriate circumstances, if those events can be said to be relevant, not so much per se, but because they throw a different light on circumstances which existed at the time of sentence.  Thus, in the case of R v Eliasen (1991) 53 A Crim R 391, the Court of Criminal Appeal said, per Crockett J at 394:

    This court may, if it considers the case an appropriate one to do so, permit evidence of matters or events that have occurred since the date of the passing of the sentence upon an applicant to be placed before this Court with a view to this Court's reconsidering the matter in the light of that additional evidence. It must follow that, if the Court does think that the additional evidence should lead to the imposition of a sentence different from that imposed by the judge, then even where the judge's sentencing discretion has not miscarried the case must be treated as one calling for appellate intervention.

    This authority has been followed by this court in a number of cases since Eliasen: see R v Rostom [1996] 2 VR 97; R v Williams (unreported, 18 September 1995); R v Morgan (1996) 87 A Crim R 104; R v Bell (unreported, 18 August 1997).  In the case of Rostom, Charles JA, speaking for the court at 99, explained that the basis for receiving the new evidence was to be found in demonstrating the true significance of facts in existence at the time of sentence.

    [15]R v WEF [1998] 2 VR 385 (‘WEF’).

    [16]The catchwords to the case as reported in the Victorian Reports are, perhaps, a little misleading.  They suggest that the case concerns ‘Fresh evidence’.  Significantly, however, the reasons for judgment of Winneke P refer only to ‘new’ evidence.  (I note that the catchwords to the reasons for judgment as delivered by the Court more accurately suggest that the case is concerned with ‘New facts relating to applicant’s health emerging between sentence and appeal’.)

    [17]WEF, 388–9.

12. Both parties in this Court agreed that the principles that governed resolution of the application for leave to appeal were as summarised by Redlich JA in Nguyen under the heading ‘Fresh evidence’ (notwithstanding that the case was decided prior to the promulgation of the CPA).[18]  Examination of his reasons for judgment demonstrates, however, that Redlich JA – with whom Maxwell P and Neave JA agreed – used the expressions ‘fresh’[19] and ‘new’[20] evidence interchangeably and without any apparent distinction. 

    [18]R v Nguyen [2006] VSCA 184, [30]–[37] (‘Nguyen’).

    [19]Ibid [33], [34], [35] and [37].

    [20]Ibid [36](i), (iv) and (v), [37], [38] and [44].

13. Authorities such as WEF and Nguyen appear to establish that, in this State over recent years, no practical distinction has been drawn between fresh and new evidence for the purposes of appeals against sentence.  Furthermore, the High Court in Betts also appears to have drawn no practical distinction between fresh and new evidence (albeit that the Court recognised that evidence is fresh if it could not have been obtained at the time of the sentence hearing by the exercise of reasonable diligence).  The Court said:[21]

    Notwithstanding its wide terms, it is well settled that the Court of Criminal Appeal’s power to intervene is not enlivened unless error in any of the ways explained in House v The King[22] is established.[23]  The identification of error will ordinarily be by reference to the sentencing judge’s reasons on the material that was before the court. However, the Court of Criminal Appeal has recognised that there are bases upon which error at first instance may be disclosed by new or fresh evidence.[24]  Generally, the Court of Criminal Appeal insists upon proper grounds being established as a foundation for the exercise of its discretion to receive fresh evidence.[25]  Evidence qualifies as fresh evidence if it could not have been obtained at the time of the sentence hearing by the exercise of reasonable diligence.[26]  None of this is to deny that the Court of Criminal Appeal has the flexibility to receive new evidence where it is necessary to do so in order to avoid a miscarriage of justice.[27]

    [21]Betts, 425 [10] (footnotes as in original; emphasis added).

    [22](1936) 55 CLR 499 at 505 per Dixon, Evatt and McTiernan JJ.

    [23]Skinner v The King (1913) 16 CLR 336 at 340 per Barton A-CJ; Markarian v The Queen (2005) 228 CLR 357 at 370-371 [25] per Gleeson CJ, Gummow, Hayne and Callinan JJ; Lacey v Attorney-General (Qld) (2011) 242 CLR 573 at 579-581 [11]-[14] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ; and see R v Sidlow (1908) 1 Cr App R 28 at 29 per Lord Alverstone CJ.

    [24]R v Vachalec [1981] 1 NSWLR 351 at 353 per Street CJ delivering the judgment of the Court.

    [25]R v Lanham [1970] 2 NSWR 217 at 218.

    [26]Ratten v The Queen (1974) 131 CLR 510 at 517 per Barwick CJ.

    [27]R v Abbott (1985) 17 A Crim R 355; R v Goodwin (1990) 51 A Crim R 328; R v Araya (1992) 63 A Crim R 123 at 129-130 per Gleeson CJ; R v Fordham (1997) 98 A Crim R 359 at 377-378 per Howie A-J; see also Gallagher v The Queen (1986) 160 CLR 392 at 395 per Gibbs CJ.

14. Moreover, in light of Betts – even though that case turns on a differently-worded statutory provision – it should be accepted that the expression ‘error in the sentence first imposed’ found in s 280(1)(a) of the CPA is broad enough to embrace a sentence in which the error at first instance is disclosed subsequently by fresh or new evidence.

15. In the present case, it was known at the time of sentence that the applicant had what were described by the judge as ‘gender identity issues’; and wanted to ‘pursue hormone therapy and genital reassignment surgery after release from custody’.  It was also known that ‘it was likely [the applicant] had been the subject of harassment regarding [his] feminine disposition and presentation, and it was the experience of Dr Deacon that openly gender dysphoric prisoners experienced more stress and anxiety in custody’.  Indeed, the judge recognised that the applicant’s gender identity issues would make the applicant’s time in custody more difficult (albeit any mitigation of sentence would be ‘moderate’).

16. Notwithstanding that it was known prior to sentence that the applicant had endured harassment connected to ‘feminine disposition and presentation’, and that gender dysphoric prisoners experience more stress and anxiety in custody; and notwithstanding that the judge had made some allowance for these matters when imposing sentence; the applicant’s counsel in this Court contended that evidence that the applicant had been subjected to further harassment and assaults after sentence was fresh evidence warranting this Court’s intervention.

17. I have difficulty in accepting that what has occurred after sentence is fresh or new evidence.  The available material suggested that the applicant had already been the subject of unwanted attention, in circumstances where it might readily be inferred that it would continue unless capable of being eliminated or controlled by prison management.  As to that – and not in any way to excuse the fact that it occurs – it is an unhappy reality that vulnerable prisoners are sometimes subjected to intimidation, harassment and assault by other, less vulnerable prisoners.  These matters generally are, however, within the purview of prison management, and are not matters properly within the scrutiny of appellate courts.    

18. As the cases make clear, events subsequent to sentence which have made the sentence – appropriate when passed – manifestly excessive, are matters for the Executive.  Is this one of those ‘rare and exceptional’ cases where new evidence of events occurring after sentence demonstrate that there is error in the sentence first imposed?  I am not persuaded that it is.

19. In so concluding, I recognise that it will not always be easy to draw a bright line of demarcation.  For example, were a prisoner with no pre-existing physical or psychiatric injury or condition to be assaulted for the first time after sentence by another prisoner, resulting in physical or psychiatric injury that will make the burden of imprisonment more difficult, it might readily be concluded that such post-sentence events were matters for the Executive, not an appellate Court.  On the other hand, were a prisoner with a known pre-existing physical or psychiatric injury or condition to be assaulted following sentence, resulting in an exacerbation of the physical or psychiatric injury so as to make imprisonment more burdensome, it might be expected that new evidence would be permitted on appeal to establish those new facts.[28]

    [28]See R v SH [2006] VSCA 83, [25]–[26] (Warren CJ, Charles and Chernov JJA).

20. But even were I to accept that the evidence sought to be relied upon by the applicant in this case is fresh or new, I would nonetheless refuse leave to appeal, since I do not consider that there is any ‘reasonable prospect that the Court of Appeal would reduce the total effective sentence despite there being an error in the sentence first imposed’.[29] In that regard, I attach myself to the analysis in the joint judgment.

    [29]CPA, s 280(1)(b).

1. Ultimately, I consider that, given that the ground of appeal was reasonably arguable, it is proper to grant an extension of time.  But as I have said – and notwithstanding that the ground is reasonably arguable – I consider that leave to appeal should be refused.[30]

KYROU JA

[30]CPA, s 280(2).

WALKER JA:

1. On 9 March 2016, the applicant was convicted of five charges of incest after a trial of around one month duration. The complainant was the applicant’s step-daughter; she was 12 at the time of the offending. On 6 April 2016, the applicant pleaded guilty to two charges of possession of child pornography, involving 10 images of the lowest level of seriousness, depicting no sexual activity.

2. On 11 November 2016, the applicant was sentenced as follows:

Charge	Offence	Maximum	Sentence	Cumulation
Trial indictment
1	Incest (digital vaginal)	25 years	5 years	12 months
2	Incest (digital vaginal)	25 years	5 years	12 months
3	Incest (penile vaginal)	25 years	6 years	16 months
4	Incest (penile anal)	25 years	6 years	Base
5	Incest (penile vaginal)	25 years	5 years	12 months
Plea indictment
1	Possess child pornography	5 years	60 days	14 days
2	Possess child pornography	5 years	60 days	14 days
Total effective sentence		10 years, 4 months and 28 days
Non-parole period		7 years
Section 6AAA declaration		4 months’ imprisonment on each charge on the plea indictment.
Other orders		Registration for life under the Sex Offenders Registration Act 2004.

1. The applicant now seeks an extension of time in which to file an application for leave to appeal against sentence. The application for leave to appeal is based on a single proposed ground: that fresh evidence ‘demonstrates the true significance of facts in existence at the time of sentence’. 

2. The applicant’s evidence and submissions are to the effect that, since being sentenced as a male, she has ‘undergone a gender transition’. Until commencing that transition in November 2018, the applicant was known by a typically male name; since that time, the applicant has been known by a typically female name, although she has not yet been permitted to change her legal name. She has commenced taking feminising hormones, but has not yet had any surgical intervention.

3. In these reasons we will, to the extent possible, use female pronouns when referring to the applicant, save when quoting from documents that use male pronouns or when the use of a female pronoun would cause confusion or a lack of clarity.

4. The fresh evidence on which the applicant relies principally concerns the hardship that the applicant has experienced in prison as a result of her being a person whose gender identity does not match her anatomical sex at birth. That hardship includes, she submits, being the victim of rape, sexual assault, physical assaults and repeated harassment and bullying. She submits that this has made prison more onerous for her than for prisoners whose gender identity matches their anatomical sex at birth. The applicant has been housed in various men’s prisons, but it is important to note that in 2020 Corrections Victoria offered to relocate her to a women’s prison, an offer that she ultimately did not accept.

5. In addition to the fresh evidence concerning her gender transition, the applicant also submits that the fresh evidence reveals that she has assisted the authorities to bring the perpetrators of the offending against her to justice, and that it is in the public interest to encourage prisoners to assist the authorities in identifying perpetrators of offences in custody by discounting their sentences to a significant extent.

6. For the reasons that follow, we would grant the extension of time. However, we would refuse leave to appeal. Section 280(1)(a) of the Criminal Procedure Act2009 (‘CPA’) empowers this Court to refuse an application for leave to appeal if there is no reasonable prospect that the Court would impose a less severe sentence than the sentence first imposed, including in circumstances where the Court considers that there is a reasonably arguable ground of appeal (s 280(2)). In the present case we would not impose any lesser sentence than that imposed by the judge, even if the applicant’s ground of appeal were to succeed, and the sentencing discretion were re-opened.

7. As we explain below, in reaching that conclusion we have taken into account the seriousness of the offending, the applicant’s moral culpability (which we emphasise was in no way reduced by her gender identity), the need for both general and specific deterrence, her not guilty plea on the incest charges, her guilty plea on the child pornography charges, her personal circumstances (including the fresh evidence) and the effect of COVID-19 on her experience of prison. Finally, we have considered the principles of totality and proportionality.

Factual background

The offending

1. As appears from the above sentencing table, the applicant was convicted of five charges of incest and two charges of possession of child pornography. It will be necessary to deal with the offending in greater detail below, when we explain our reasons for concluding that no lesser sentence would result if the sentencing discretion were re-opened.

The evidence before the judge concerning the applicant’s gender identity

1. For the purposes of the plea hearing, the applicant relied upon three experts: Dr Kumar (a psychiatrist), Dr Hussain (a psychologist) and Dr Deacon (a psychiatrist).

2. In November 2014, the applicant was diagnosed by Dr Kumar as suffering from bipolar affective disorder. Dr Kumar met with the applicant for a single, one hour consultation. Dr Kumar’s oral evidence on the plea was that the applicant said that, when he was young, his sister ‘used to force him to cross-dress’, but he did not otherwise disclose his gender identity issues to Dr Kumar. Dr Kumar did not give any evidence concerning the applicant’s gender identity. Rather, Dr Kumar’s evidence concerned whether the applicant had bipolar affective disorder (a matter that was ultimately abandoned in the course of the plea).

3. From October 2014 until January 2016, the applicant was treated by Dr Hussain over 42 sessions. Dr Hussain diagnosed the applicant as suffering from ‘Bipolar I Disorder – Moderate Severity’. Again, the applicant disclosed that his sister used to dress him as a girl. He also said that he would wear his wife’s underwear on occasion. He disclosed a history of sexual abuse while he was a child, but did not disclose his gender identity issues to Dr Hussain. 

4. Dr Deacon assessed the applicant in September 2016 and provided a report in October 2016. He did not give oral evidence on the plea. Dr Deacon concluded that the applicant did not have bipolar disorder. However, his report dealt with the applicant’s gender identity, as follows:

   Mr [Packard] reported a history strongly suggestive of gender dysphoria disorder. He reported that he identified with feminine traits and interests from early childhood. He continued to prefer being feminine rather than masculine, but he continued to largely function as a male. He was heterosexual but he also engaged in intimate contact with males. He reported that his most recent partner was dominant whilst he was submissive. His partner purportedly preferred him being masculine, but permitted him to adopt feminine roles. He reported that he didn’t inform Dr Kumar or Dr Hussein about his gender issues, as he wanted to avoid this history being shared in court in the event that he was found not guilty of the current offences. He reported that since being found guilty he had nothing to lose and was intending to pursue hormone therapy and genital reassignment surgery upon release from custody. This component of Mr [Packard] has not been corroborated and is entirely based on his self-report. However, the Justice Health file includes reference to gender issues suggesting this aspect of his history is likely to be genuine.  

5. Later in his report, Dr Deacon said this:

   Mr [Packard] reported that he has been subject to harassment whilst in custody in direct response to his feminine disposition and presentation. The clinical notes suggest this is likely valid. He reported that he had been moved to different management and mainstream units for protection. It is inevitably more difficult for prisoners with gender issues to cope. Whilst similar cases are relatively rare, it is my clinical experience in prison that openly gender dysphoric prisoners often experience custody as more stressful and anxiety provoking. Mr [Packard] has lately decided to grow facial hair to lessen the likelihood of harassment, but he has refused to cut his hair.

The plea hearing

1. On the plea, the applicant formally abandoned any reliance on a diagnosis of bipolar disorder, but relied upon gender identity as a matter relevant to sentencing.

2. In written submissions on the plea, the applicant submitted as follows, under the heading ‘Gender confusion’:

   (a)‘from a very early age in his life he has been confused about his gender’, but ‘his inclination is more towards being a female’.

   (b)‘he is torn between being a man and a woman and if he could, he would have a sex change, even whilst in custody’, however ‘he feels vulnerable to what may occur in custody, if he reveals his true inclination’. 

3. The applicant’s written submissions also referred, obliquely, to ‘[i]mpact of imprisonment due to sexuality and gender confusion’.

4. At the plea hearing, the judge indicated that she understood the applicant’s submission concerning his gender identity to be that ‘if he is gender dysphoric he might find custody more stressful and anxiety provoking’, and the applicant agreed with that. The applicant also submitted that he was, and would be, subject to harassment in prison as a consequence of his gender identity. Prison would thus be more onerous for him. He submitted that Verdins principle 5 was engaged, namely that he had a psychological ‘condition’ that ‘could mean that a given sentence would weigh more heavily on the offender than it would on a person in normal health’.[31]

   [31]See R v Verdins (2007) 16 VR 269, 276 [32] (Maxwell P, Buchanan and Vincent JJA); [2007] VSCA 102 (‘Verdins’).

5. The respondent’s submissions on the plea addressed the applicant’s gender identity issue first by observing that there was no diagnosis of any mental condition by Dr Deacon that could enliven the Verdins principles. The judge then noted that the gender identity issue might be relevant to general sentencing principles. The Crown accepted that, but submitted that it ought to be given ‘very little weight’.

6. The respondent also challenged the genuineness of the applicant’s gender identity claim on the plea, however that was not pursued particularly vigorously and has not been pursued in this Court, thus we need say no more about it.

The reasons for sentence

1. The judge’s reasons for sentence were thorough and detailed. It is not necessary at this point to discuss in any detail the general reasons for sentence, given that there is no suggestion that her Honour erred, and no suggestion that the sentences her Honour imposed were manifestly excessive. Rather, it is appropriate to focus on what her Honour had to say about the applicant’s gender identity, which was as follows:

   [Defence counsel] also referred to your recent instructions regarding ‘gender confusion’. That submission led to an adjournment of this plea hearing to enable investigation. You instructed that from a very early age you were confused about your gender and your inclination was more towards being female. You said your sister used to dress you up as a girl and you would also take her clothes and make-up and secretly dress as a female.

   You said you also used to wear your wife’s clothing but when you moved in to live with her, [you] ceased due to pressure from her that you be more masculine and ‘macho’.

   You instructed you were torn between being a man and a woman and if you could, would have a sex change. You reported feeling vulnerable in custody should you reveal your inclination, although I note from the recent report of Dr Deacon you do not object to being called [a typically female name] by your friends in custody.

   You said that over the years you had tried to repress your gender confusion, to be more like what ‘a father should be’ and to make your family proud.

   You instructed you had discussed that ‘in passing’ with Dr Hussain but not in great detail, you said, being embarrassed and unable to open up about that aspect of your life. I discussed the doctor’s lack of reference to such a significant issue had it been raised by you. This, as I say, prompted the seeking of another adjournment to enable examination of this, in particular any relationship to principles 5 and 6 of Verdins.[32]

   [32]DPP v Packard (a pseudonym) (County Court, Judge Pullen, 11 November 2016) [71]–[75] (‘Reasons’).

2. The judge referred to the fact that the applicant had not raised or discussed any gender identity issues with Dr Kumar or Dr Hussain. Her Honour described Dr Deacon’s report as follows:

   You described attending a single session with Dr Kumar, Psychiatrist, having been recommended by Dr Hussain. You told Dr Deacon you did not tell Dr Kumar about your gender identity issues as you wanted to retain some dignity and not have family and friends learn of it.

   You described within a few weeks of being at Ararat Prison, being placed in a management unit then transferred to mainstream where you were sexually harassed. You were recently moved to a management unit again and you were coping better but still occasionally harassed.

   You had attended with a psychiatric nurse and psychiatrist in custody, although neither had confirmed a diagnosis of Bipolar Disorder, however you were given treatment with mood stabilising medication.

   Reference was made to your reported sleep problems in custody, with you continuing to experience suicidal ideation.

   You said you would actively pursue gender change when released from prison.

   …

   In the opinion of Dr Deacon, your development was marked by instability and trauma. The history you reported was strongly suggestive of Gender Dysphoria Disorder. You continued to prefer being feminine rather than masculine but you continued to largely function as a male. You described yourself as heterosexual. You described wanting to pursue hormone therapy and genital reassignment surgery after release from custody.

   …

   Clinical notes from the prison suggested it was likely you had been the subject of harassment regarding your feminine disposition and presentation, and it was the experience of Dr Deacon that openly gender dysphoric prisoners experienced more stress and anxiety in custody. I can understand and appreciate that. He noted at that time you had grown facial hair to lessen the likelihood of harassment, however, had refused to cut your hair. This was discussed with [defence counsel], as was the female name you apparently like to be called in custody.[33]

   [33]Reasons, [130]–[134], [136], [141] (emphasis added).

3. Her Honour then assessed whether Verdins principle 5 was enlivened. She concluded that it was not. However, she accepted that the applicant’s gender identity issues, as described by Dr Deacon, would make her time in custody more difficult, and consistently with general sentencing principles considered that that was relevant in ‘moderate’ mitigation of the applicant’s sentence.[34] We note that, in the immediately preceding paragraph, the judge had said that she agreed with the prosecution submission that the issues raised by Dr Deacon should be given ‘little weight’, which suggests that in using the term ‘moderate’, her Honour meant ‘ limited’, rather than ‘middle-range’.

   [34]Reasons, [146].

4. It is plain that the judge had regard to the applicant’s gender identity issues, as they were articulated at the time of sentence, and gave them some, albeit limited, weight in the sentence she imposed.

The fresh evidence

1. The fresh evidence before this Court is comprised of two affidavits by the applicant, a letter from the Monash Health Gender Clinic (exhibited to one of the applicant’s affidavits), and an affidavit of Patrick McCormack, the Acting Assistant Commissioner of the Sentence Management Division of Corrections Victoria, filed on behalf of the respondent.

The applicant’s gender identity

1. It is useful to commence with the letter from the Monash Health Gender Clinic, dated 11 September 2019. The author of the letter was a consultant psychiatrist who was the head of the clinic. The letter states that the applicant was referred to the writer ‘for an assessment of gender variance’. It describes the applicant as a 36-year-old ‘female who was assigned male at birth’. The writer expresses the view that the applicant ‘has experienced persistent gender incongruence as described in the ICD 11’.[35] There was no challenge to that opinion on the appeal.

   [35]The ICD 11 is the World Health Organisation, International Classification of Diseases (11^th rev, 2019).

2. The letter goes on to state that the applicant ‘is keen on commencing feminising hormones to align her physical appearance with her female gender identity’. The writer expresses the view that the applicant ‘fulfils the criteria to commence feminising hormones as specified in the WPATH Standards of Care v7’,[36] and states ‘I understand that you [presumably, the relevant medical practitioner within the Corrections system] will be assisting [the applicant] in commencing hormones’.

   [36]The WPATH Standards of Care v7 is the World Professional Association for Transgender Health, Standards of Care for the Health of Transsexual, Transgender, and Gender Nonconforming People (7^th ed, 2012).

3. The applicant’s evidence is that she has experienced gender dysphoria since she was a child, although she had not disclosed that to anyone prior to her disclosures to Dr Deacon after she had been convicted. At that point she felt that she ‘no longer had anything to lose’. Her evidence is that she thought that she would transition to a woman when she was released from prison, because she believed she would not be permitted to do so while in prison. However, she found out in 2018 that she could transition while in prison.

4. In 2018, the applicant became aware that she would have to live as a woman for a year before she could be eligible for hormone treatment. In May 2018, she told the Case Management Review Committee (‘CMRC’)[37] that she identified as transgender and would like to be identified with she/they pronouns and by a feminine name. She said that she would like to access make-up from the canteen, which was discussed with her, including limitations on when she could wear make-up and female undergarments safely. The CMRC told her that prison officers would use her preferred pronouns and be mindful when using her name in the general population and over the loud speaker. The applicant confirmed that she understood and had no concerns about the proposed approach. She acknowledged there would be a transition period for staff to become aware of her name change and transition. She was also given a copy of the Commissioner’s Requirements on Management of Prisoners who are Transgender, Gender Diverse or Intersex.[38]

   [37]The CMRC is a multidisciplinary team within a prison consisting of senior prison officers and program officers, who review a prisoner’s conduct and progress within the prison, facilitate local plans for prisoners, monitor their progress on goals and resolve any particular concerns.

   [38]Corrections Victoria, ‘Commissioner’s Requirements: Management of Prisoners who are Trans, Gender Diverse or Intersex’ (March 2021) (‘Commissioner’s Requirements’).

5. On 26 September 2019, a sentence management panel (‘SMP’) discussed the applicant’s gender preferences with her by telephone. She said that she preferred a feminine name and to be referred to as she/her. She told the SMP that she was waiting to see a doctor for hormone replacement therapy medication. She also told the SMP that she was happy with the current procedure of male officers conducting her strip searches.

1. Around November 2018, the applicant started living as a woman. She wore a padded bra and make-up and grew her fingernails. She started to use a feminine name. On 19 November 2019, the CMRC met with the applicant. It was noted that she was transitioning and receiving hormone medication. The CMRC also noted that the applicant was ‘a self-sufficient prisoner who does not require much assistance and only approaches prison officers for genuine concerns’.

2. In October 2019, the applicant applied to the Secretary for the Department of Justice and Community Safety to change her name on the Register of Births, Deaths and Marriages; however that application was refused in 2020. She has made a further such application, which has not yet been resolved.

3. In November 2019, the applicant commenced taking feminising hormones, which caused her to start growing breasts and develop a ‘more womanly figure’.

4. In around June 2021, the applicant became eligible for surgery as part of her transition (an orchidectomy, that is, removal of the testicles). She was referred to a urologist by the Monash Health Gender Clinic and placed on a waiting list. However, she is unable to afford the cost of the treatment[39] or the cost of transport and security for the necessary transfer from prison. She has thus put off surgery until after she is released. However, she continues to take a male hormone blocker and a female hormone.

The applicant’s experiences in prison

[39]Which is not covered by Medicare or by the prison and thus must be funded by the prisoner: see Commissioner’s Requirements, Part 6.5.

1. The applicant’s evidence of her experiences in prison is grim. She has experienced harassment, assault, sexual assault and rape, as well as significant unwanted attention from other prisoners.

2. At the time the applicant entered the prison system, she had not commenced living as a woman, but she presented in a feminine manner, had long hair and was referred to by some prisoners by a feminine name. She gave evidence that from that time, up to the time at which she commenced living as a woman, she was subjected to the following assaults.

   (a)In 2017, she was anally raped; she was later sexually assaulted by the same prisoner, after which she attempted suicide and self-harmed. The applicant made a statement to police concerning these incidents and the prisoner was charged with rape and sexual assault. She also gave evidence at his trial. The prisoner was acquitted of rape in March 2022.

   (b)In 2017, the applicant was called a ‘faggot’ and punched in the face by a prisoner. The applicant says that she sustained a concussion, a black eye and a crack and chip in her tooth. The applicant made a statement to police about this incident and the prisoner was charged with assault. He pleaded guilty.

3. The applicant also gave evidence that, after she had commenced living as a woman, she was subjected to the following further assaults and harassment.

   (a)In late 2018 or early 2019, a prisoner sexually harassed the applicant for around three months.

   (b)In 2019, a prisoner called the applicant a ‘putrid abomination’ and made a false complaint against her.

   (c)In January 2020, a male prison officer placed his hands on the applicant’s breasts during a pat down search.

   (d)Also in January 2020, the applicant was sexually assaulted by another prisoner, who had been sexually harassing her for several months. The applicant made a statement to police concerning the assault and the prisoner was charged with sexual assault. Other prisoners sought to have her withdraw her complaint, and other prisoners called her a ‘dog’. Ultimately, because other witnesses were no longer willing to give evidence against the prisoner, the charges were withdrawn.

   (e)Later in 2020, a prisoner began to make unwelcome advances towards the applicant, which made her anxious and she complained to a supervisor.

   (f)Also in 2020, a prisoner became infatuated with the applicant, called her abusive names and watched her shower. The applicant complained to a supervisor and to her case worker.

   (g)Again in 2020, a prisoner put his arm around the applicant, kissed her cheek and grabbed her bottom, and told her that she was beautiful and he wanted to come and see her. The applicant reported this to a prison officer.

   (h)In August or September 2020, a prisoner began staring at the applicant for extended periods while the applicant worked in the prison library. This behaviour continued for several months, until the prisoner was transferred.

   (i)In January or February 2022, the applicant was stalked by a prisoner who followed her around and walked into her cottage and bedroom at night.

   (j)In April 2022 a prisoner spat in the applicant’s face and screamed that she ‘wasn’t a girl, [she] was a faggot’. She tested for blood borne diseases after the incident and is anxious about HIV infection.

   (k)More generally, the applicant’s evidence is that, since she started to live as a woman, she has been the subject of daily transphobic and homophobic comments and harassment from other prisoners, including frequent requests that she have sex with them, and regular indecent assaults. As a result, the applicant says that she stays in her cell as much as possible.

The applicant’s location in a men’s prison

1. As observed earlier, the applicant is presently housed in a men’s prison, and has been so housed for the entirety of her sentence. However, it is important to note that, in May 2020, the applicant advised the CMRC that she wanted to transfer to the Dame Phyllis Frost Centre (a women’s prison — ‘DPFC’), Langi Kal Kal (a men’s prison) or Tarrengower (a women’s prison). She said that she hoped that a transfer would reduce the harassment she was receiving. She said that she was struggling with being inappropriately touched and was still adjusting to the hormone replacement therapy.  Over the course of the next 18 months, the applicant’s placement was discussed with her at multiple meetings with the CMRC. 

2. The applicant was offered the opportunity to transfer to DPFC by Corrections Victoria, but she ultimately decided not to transfer to that prison.  Rather, she chose to transfer to a different men’s prison, Langi Kal Kal. She made that choice because she thought that she would have an opportunity to participate in out-of-prison work groups and qualify for reintegration leave, in preparation for parole — opportunities she did not think she would have at DPFC. She transferred to Langi Kal Kal in November 2021.

3. As matters have transpired, she has not been able to participate in any out-of-prison work, even though she has been approved to do so, because the available work is in a bush location where there are no public toilets, and which is unsuitable for a transgender woman. Her evidence is that prison authorities have tried to organise alternative work for her, but ‘nothing has eventuated’. As a result, she says, she has not qualified for any reintegration leave. She has been told that this will not affect her prospects of parole, but says that she is very disappointed not to have had opportunities that other non-transgender prisoners have had.

4. The applicant also gave evidence that, in May 2022, her boyfriend was transferred to Langi Kal Kal, and she was told that she was only allowed to see him in the library. In contrast, she said, gay partners are permitted to live in the same unit at Langi Kal Kal. She again applied to transfer to DPFC, and this was approved. However, prison authorities subsequently told her they would allow her boyfriend to move into her unit, and she then withdrew her application to transfer.

The applicant’s progress towards rehabilitation in prison

1. The applicant gave evidence setting out a range of activities she has undertaken in prison that demonstrate her progress towards rehabilitation, including:

   (a)her work as a cleaner, an upholsterer, a gardener, a peer listener and the secretary of the transgender and gender diverse forum;

   (b)her completion of a Peer Listener – Mental Health Training Certificate;

   (c)her completion of 24 courses, including general education, cleaning, horticulture and food safety;

   (d)her completion of various programs, including the 24-hour alcohol program, a values workshop, the healthy relationship program and programs for coping with stress, anxiety, loss and change;

   (e)her creative writing, including writing that has been published in various forums; and

   (f)her donation of prize money won for her creative writing to the Incarcerated Trans and Gender Diverse Community Support Fund, a charitable organisation providing financial support to trans and gender diverse prisoners.

The impact of the COVID-19 pandemic

1. The applicant gave evidence of the impact of the pandemic on her experience of prison in 2020 and 2021, including:

   (a)that her ability to work was reduced;

   (b)that library access was heavily restricted, and prisoners could not have books dropped off to them by family and friends;

   (c)the cancellation of gym classes in which she used to participate;

   (d)the cancellation of face-to-face visits in 2020, meaning that her contact with her mother and grandmother was largely limited to telephone contact, a situation that has persisted even after visits were permitted, because her mother and grandmother have not felt safe to visit due to their health and age; and

   (e)her experience of four prison lockdowns, as well as a period of quarantine.

2. The applicant also informed the Court that she has received 37 emergency management days (‘EMDs’) as a result of the lockdowns during the COVID-19 pandemic, and that as a consequence her sentence has been reduced by that number of days. She will be eligible for parole on 30 January 2023.

Corrections policies concerning transgender and gender diverse prisoners

1. It is important to note that there are various policies in place within the prison system in relation to the management of transgender and gender diverse prisoners. Those policies include the Commissioner’s Requirements and the Justice Health Unit (a unit within the Department of Justice and Community Safety) policy statement on health care for prisoners who are trans, gender diverse, or intersex.

2. The Commissioner’s Requirements provide that transgender and gender diverse prisoners must be treated with the same respect and dignity accorded to any other prisoner and must not be discriminated against or harassed on the grounds of their gender identity. The requirements go on to observe as follows:

   As prisons are designed to accommodate only men or women there are a number of factors that result in trans, gender diverse and intersex prisoners being particularly vulnerable to harm and abuse. These include: the discriminatory attitudes that may be applied by people defining men and women; the behaviours of some prisoners who seek to exploit or take advantage of those who are more vulnerable; and the containment of prisoners in closed environments that while affording prisoners with a range of protections, must also balance the need for their humane containment with safety and security considerations.

   In the placement of trans, gender diverse and intersex prisoners, the safety and welfare of the prisoner and of other prisoners are of paramount consideration. The risks associated with the placement of prisoners who present with breasts and/or a vagina in the men’s prison system or prisoners with a penis in a women’s prison system, are factors that must be considered when managing and supervising prisoners in either system. This is in acknowledgement that for trans, gender diverse and intersex prisoners placed in environments where the external manifestation of their gender does not accord with those people with whom they are accommodated, they are at heightened risk of sexual or physical assault. It is also recognised that for trans, gender diverse and intersex prisoners, placement in an environment that accords with their external manifestation of their gender, but not their gender identity, may equally be harmful. Relative to this risk, a much smaller proportion might pose safety risks to others, particularly if their criminal record indicates a history of sexual and/or physical violence.[40]

   [40]Commissioner’s Requirements, [3.2]–[3.3].

The applicant’s submissions

1. The applicant submitted that the fresh evidence demonstrated that the burden of her incarceration has been much greater than was anticipated by the judge at the time of sentence. She emphasised the history of rape, sexual assault and harassment that she has experienced in prison; which history, she pointed out, has not been challenged by the respondent.

2. She also submitted that she had experienced harassment in prison due to the assistance she gave the authorities in relation to the prosecution of the assaults, which has also made her incarceration more onerous. Relatedly, she submitted that the public interest justifies her sentence being discounted so as to encourage prisoners to assist the authorities in bringing perpetrators of offences in custody to justice.

3. The applicant submitted that the fresh evidence demonstrated that it is in the interests of justice that the sentencing discretion be re-opened, and that she should now be re-sentenced on the basis of the fresh evidence and all other relevant matters now known, including the severe restrictions in custody as a result of the COVID-19 pandemic. She submitted that lesser sentences should be imposed than were fixed at first instance.

The respondent’s submissions

1. The respondent resisted the proposition that the sentencing discretion should be re-opened on the basis of the fresh evidence. While the respondent accepted that gender identity issues were raised on the plea, it contended that the fresh evidence did not ‘shed new light on’ those issues. The respondent submitted that the first three serious incidents, of rape and sexual assault, which occurred before the applicant started to live as a woman, were not causally connected to the applicant’s gender identity:

   It is a regrettable reality that assaults — sometimes very serious assaults — occur in jail. The applicant has been made the subject of criminal offending, including very serious criminal offending, that ought not to have taken place. It may be that the applicant felt vulnerable as a ‘feminine man’ whilst in custody and has attracted — as she recounts — unwanted attention because of this disposition. But the evidential basis for linking the particular assaults committed by [the other prisoners] to the applicant’s gender identity in order to demonstrate in this respect the true significance of facts in existence at the point of sentence so as to invoke the jurisdiction sought seems, it is respectfully submitted, to rely on a degree of speculation and/or baseless assumption. On the evidence the applicant’s gender dysphoria may have had nothing to do with the rape and other assaults.[41]

   [41]Emphasis in original.

2. The respondent took a somewhat different approach to the assaults and harassment that occurred after the applicant had commenced living openly as a woman, accepting that this ‘perhaps’ stands in a different category:

   One might more readily conclude here the existence of at least a causative relationship between the applicant having presented herself openly as a woman and the treatment that she describes at the hands of others. Indeed, the applicant’s description of events often in substance brings to bear her presentation as a woman as a relevant factor. The question then becomes whether the fact of the applicant’s decision openly to live as a woman, and the consequences which this decision might be said to have entailed, demonstrates the true significance of facts that were in existence at the time of sentence. The facts in existence at the time of sentence, as had been recounted expressly to the sentencing judge on instructions, were that the applicant felt that there was a disjunct between her gender identity and her anatomical sex at birth but that she would pursue a gender change and commence living as a woman when she was released from prison. This was so because, as the judge was told, living in custody as a woman would leave her too vulnerable. This position altered in 2018 when the applicant commenced living as a woman as a precursor to hormone treatment.

3. The respondent submitted that the applicant’s decision to live as a woman and commence hormone treatment did not demonstrate the true significance of facts in existence at the time of the plea; rather, it was a ‘new fact’.

4. The respondent also resisted any reliance on the assistance the applicant had provided to the authorities concerning the assaults upon her while in custody. That, the respondent submitted, was not a matter that revealed the true significance of facts in existence at the time of the sentence.  Rather, it was a matter for the executive and not for the courts.[42]

   [42]Relying on R v Perez-Vargas (1986) 8 NSWLR 559, 565 (Street CJ); R v Cartwright (1989) 17 NSWLR 243, 257–258 (Hunt and Badgery-Parker JJ); R v Rostom [1996] 2 VR 97, 100 (Charles JA); R v DHM [1998] VSCA 11, [14]–[16] (Buchanan JA).

Consideration

The application for an extension of time

1. The principles concerning an application for an extension of time are not in dispute, and were set out by this Court in Madafferi v The Queen.[43]  It is not necessary to set them out again in detail here.  Suffice it to say that two matters will be principally relevant: whether there is a satisfactory explanation for the delay, and the merits of the proposed grounds of appeal. 

   [43][2017] VSCA 302, [11] (Priest, Hansen and Coghlan JJA).

2. In the present case, the respondent opposed the grant of an extension of time only on the basis that the proposed ground of appeal lacked merit. We observe that, in a case concerning facts that have arisen after sentence, some delay will almost always be involved, both because those facts might arise some considerable time after sentence and because their true significance may not be immediately appreciated. In light of those matters, we consider that, as the respondent submitted, the resolution of the application for an extension of time turns on the merits of the proposed ground.

The principles concerning fresh evidence relevant to sentencing

1. The principles relevant to the admissibility of fresh evidence on an appeal against sentence were not in dispute.  They were summarised in Nguyen v The Queen by Redlich JA, with whom Maxwell P and Neave JA agreed, as follows:

   [T]his Court may, in limited circumstances — sometimes described as ‘rare and exceptional’ — permit evidence to be led of matters or events that have occurred since the sentence was imposed to enable this Court to reconsider the sentence in the light of that additional evidence. The following principles apply to the admission of such evidence:

   (i)the new evidence must relate to events which have occurred since the sentence was imposed;

   (ii)the evidence must demonstrate the true significance of facts in existence at the time of the sentence;

   (iii)the evidence will not be admitted if it relates only to events which have occurred after sentence and which show that the sentence has turned out to be excessive;

   (iv)the new evidence may be admissible even though the applicant did not refer to the pre-existing state of affairs in the course of the plea;

   (v)upon the admission of the new evidence, it is unnecessary to determine whether the original sentence was vitiated by error, or whether it was manifestly excessive; and

   (vi)the question is whether, on all of the material now before the Court, any different sentence should be substituted to avoid a miscarriage of justice.

   The consistent approach of this Court has been to treat the sentencing discretion as reopened once it has been concluded that the fresh evidence throws significant new light on the pre-existing facts. The Court must determine what is the appropriate sentence on the basis of all of the material then before it.[44]

   [44][2006] VSCA 184, [36]–[37] (citations omitted) (‘Nguyen’).

1. That summary has since been adopted in various cases where an applicant has sought to rely on fresh evidence in the context of an appeal against sentence.[45]

Analysis

[45]See, eg, Rout v The Queen [2016] VSCA 126, [49] (Whelan, Priest and Beach JJA); Arnold (a pseudonym) v The Queen [2013] VSCA 298, [11] (Coghlan JA, Warren CJ agreeing at [1], Priest JA agreeing at [28]).

1. Ultimately, we have not found it necessary to resolve whether the fresh evidence adduced by the applicant in this Court is such as to enliven the principles outlined in Nguyen and related authorities. That is because, even if we were to accept that the sentencing discretion is re-opened, we would not impose any less severe sentence on the applicant. That is, we would answer in the negative the question of whether, on all of the material now before the Court, any lesser sentence should be substituted to avoid a miscarriage of justice. In those circumstances it is appropriate to refuse leave to appeal, consistently with s 280(1)(a) of the CPA.

2. To explain why that is so it is necessary to consider the nature of the applicant’s offending, as well as the range of other matters relevant to the imposition of sentence, including: her moral culpability; the need for both general and specific deterrence; her not guilty plea on the incest charges; her guilty plea on the child pornography charges; her personal circumstances and experience in prison (including the fresh evidence); her prospects of rehabilitation (including the fresh evidence); and the effect of COVID-19 on her experience of prison (again including the fresh evidence). Finally, we will consider the principles of totality and proportionality.

   The seriousness of the applicant’s offending

3. As already noted, the applicant was convicted of five charges of incest and two charges of possession of child pornography. These are objectively very serious offences. The maximum penalty for the offence of incest is 25 years’ imprisonment. The maximum penalty for the offence of possession of child pornography was, at the time of the offending, 5 years’ imprisonment. 

4. Incest, by its nature, is often a crime of exploitation of the vulnerable by those entrusted with their care. As Priest JA stated in Reid v The Queen:

   ... incest is often a crime where the vulnerable, who are worthy of protection, are exploited by those entrusted with their care. It is now seen to be a crime which — when perpetrated by an adult parent (or step-parent or grandparent) against a child — is erosive of human relations, the prominent features of which include ‘the exploitation by the stronger will of the adult of the weaker will of the child, the physical and psychological subordination of the child to the perverted indulgences of the adult, the gross breach of trust placed in the offender by the victim and the community, and the irreparable and fundamental damage to the victim’.[46]

   [46](2014) 42 VR 295, 310 [83] (Maxwell P and Whelan JA concurring at 296 [2]); [2014] VSCA 145, quoting R v Sposito (Supreme Court of Victoria, Marks J, Hampel and McDonald JJ agreeing, 8 June 1993). 

5. In the present case the offending against the applicant’s 12-year-old stepdaughter was of a most serious and disturbing kind. The offending involved two instances of digital penetration of the complainant’s vagina, two instances of penile penetration of her vagina and a single instance of penile penetration of her anus. The offending was not isolated; it involved four separate incidents over a period of some 10 months. It was inherently violent.[47] It involved a gross breach of trust of the complainant, who adored the applicant, and of her mother. 

   [47]DPP v Dalgliesh (a pseudonym) [2016] VSCA 148, [46], [85] (Maxwell ACJ, Redlich and Beach JJA). See also DPP v Dalgliesh (a pseudonym) (2017) 262 CLR 428, 447 [57] (Kiefel CJ, Bell and Keane JJ); [2017] HCA 41 (‘Dalgliesh’).

6. The offending the subject of charge 1 (digital penetration of the vagina), charge 3 (penile penetration of the vagina), charge 4 (penile penetration of the anus) and charge 5 (penile penetration of the vagina) caused the complainant pain. She said that after the anal penetration her anus hurt and bled, and after the penetration of her vagina the subject of charge 5, her vagina hurt for days. 

7. The charges also involved the use of physical force to overcome the complainant’s resistance. 

   (a)In relation to charge 1, the applicant held the complainant’s wrists and used his legs to keep her legs open. 

   (b)In relation to charge 2, the applicant grabbed the complainant, put her on the floor of the bathroom, pulled her legs open and then digitally penetrated her; he pushed her down as she fought against him and tried to get up.

   (c)In relation to charge 3, the applicant stripped the complainant and lay on top of her. She was locked in position and could not move, with her arms and legs spread apart, while the applicant penetrated her vagina.

   (d)In relation to charge 4, the applicant stripped the complainant and put her over a chair, penetrating her twice, including anally, while she asked him to stop.

   (e)In relation to charge 5, the applicant pushed the complainant onto the bed, pushed her knees apart and penetrated her vagina.

8. The judge described the offending as ‘at least mid-range’.[48] That, in our view, was a generous statement. It was not challenged on the appeal.

   [48]Reasons, [177].

9. The child pornography offending involved 10 images of child pornography (images that represented children in an indecent sexual manner or context), found on the applicant’s computer and hard drive.[49] Some images were duplicates. None involved the depiction of any sexual activity. In most of the images the children involved were clothed, although their underpants were revealed and they were engaged in sexualised poses or dressed in sexualised clothing. However, one image involved the depiction of a child’s vagina and another image involved the depiction of a child’s breast. We accept that this offending was at the lower end of the scale of gravity, as the judge found. However, as the judge observed, the faces of the children involved were visible.[50]

The applicant’s moral culpability

[49]We note that we have not viewed the images in question, but have relied upon the descriptions given in the Prosecution Summary tendered on the plea.

[50]Reasons, [184].

1. In light of the seriousness of the offending, the applicant’s moral culpability is high. In that regard, it is important to observe that the applicant’s gender identity is irrelevant to her moral culpability. Her gender identity is relevant only to whether, and to what extent, prison has been and will continue to be more onerous for her. 

2. Further, on the plea, the applicant continued to deny the offending (other than the charges for possession of child pornography, for which she pleaded guilty) and did not express any remorse.[51] None of the material put before this Court revealed any change in that position; in particular, the applicant did not, in her two affidavits, express any remorse for her offending.

   [51]Reasons, [203].

3. Finally, although at the time of the plea the applicant initially relied on a diagnosis of bipolar disorder, that was abandoned prior to the conclusion of the plea. The applicant did not contend before this Court that the Verdins principles were enlivened by any relevant medical diagnosis.

The need for both general and specific deterrence

1. Again, in light of the serious nature of the offending, there is a significant need for both general and specific deterrence. 

2. As to general deterrence, the need for condemnation and denunciation of incest by the imposition of fitting and appropriate punishment is well-recognised.[52] Further, in sentencing the applicant in relation to charges 3, 4 and 5, the applicant fell to be sentenced as a serious sexual offender, which required that the protection of the community from the applicant be the principal consideration.

   [52]See, eg, R v Wakime [1997] 1 VR 242, 244 (Winneke P, Hayne and Hedigan JJA agreeing at 245); R v VZ (1998) 7 VR 693, 699 [19] (Batt JA); [1998] VSCA 32.

3. As to specific deterrence, it is relevant that the applicant had no prior convictions for conduct of this kind. Nonetheless, in the absence of remorse and acceptance of responsibility for the incest offences, specific deterrence remains a relevant matter.

The applicant’s guilty and not guilty pleas

1. The applicant pleaded guilty to the child pornography charges, which attracts moderation in sentence for those offences. 

2. In contrast, however, the applicant pleaded not guilty to the incest charges. That had the effect of requiring the complainant to give evidence at a special hearing. Plainly, in those circumstances, the sentences to be imposed for the incest offences do not attract the moderation to be accorded for a plea of guilty. 

The applicant’s experiences in prison

1. The applicant’s experience in prison as a transgender person is a relevant factor to be taken into account for the purposes of sentencing the applicant. The judge accepted as much, although she gave this factor only ‘moderate’ weight. We will assume, for the purposes of the analysis, that by moderate her Honour meant limited, or little, weight.[53]

   [53]See [45] above.

2. We will also assume, for the purposes of the analysis, that all of the assaults and harassment the applicant has experienced in prison were connected to her gender identity. We also note that the respondent quite properly accepted that transgender and gender diverse prisoners are ‘particularly vulnerable to harm and abuse in prison’, and are ‘at heightened risk of sexual or physical assault’.[54]

   [54]Commissioner’s Requirements, [3.2]–[3.3].

3. It is thus necessary, in considering the appropriate total effective sentence and non-parole period to be imposed on the applicant, to take account of the fact that prison is more onerous for transgender prisoners generally, and has been more onerous for the applicant, in particular. Her experience has been grim. However, we also note that in 2020 she was offered a transfer to a women’s prison, which she declined. 

4. In our opinion, the assistance the applicant provided to the authorities while she has been in prison, regarding the assaults she alleged were committed against her, does not attract the principles governing the approach to sentencing an offender who cooperates with the authorities discussed in Haamid (a pseudonym) v The Queen.[55] However, we have taken it into account as a factual matter relevant to the appropriate sentence to be imposed on the applicant.

   [55][2018] VSCA 330, [24].

5. We accept that the COVID-19 pandemic, and the measures that it has required in the management of prisoners, have resulted in the applicant’s experience of prison being more onerous than would otherwise be the case in ordinary circumstances. To some extent the effects of COVID-19 have been taken into account by the grant of EMDs. However we consider that the privations visited on the applicant will not have entirely been accounted for by the grant of EMDs. EMDs may compensate to some extent for lockdowns. But they do not reflect or fully account for the other impacts of the pandemic on prisoners, such as the removal or reduction of visits from family and friends, the cessation or reduction of various educational programs and work opportunities, and the closure of the prison library. Thus we accept that, in considering the appropriate total effective sentence it is necessary to take into account the effect of the pandemic on the experience of prison.

The applicant’s prospects of rehabilitation

1. The judge expressed ‘guarded optimism’ about the applicant’s prospects of rehabilitation. She pointed to the fact that the applicant had been in age-appropriate relationships in the past, and had been able to work consistently since leaving school. The judge also expressed the view that the applicant would need to participate in sex offender programs to address her offending, which would improve her rehabilitation prospects and reduce the risk of re-offending.[56] There is no evidence before this Court that the applicant has participated in any such programs since entering custody.

   [56]Reasons, [203].

2. However, there is evidence that suggests that the applicant’s prospects of rehabilitation are reasonable, based on her work and her educational and other achievements during her period of incarceration.

Totality and proportionality

1. Finally, it is necessary to consider whether, assessed in a more global fashion, the total effective sentence is appropriate in light of the fresh evidence and the principles of totality and proportionality. In our view a total effective sentence of 10 years, 4 months and 28 days is entirely appropriate in light of the matters addressed above. That sentence is proportionate to the offending in issue and has been achieved by an appropriate structure of individual sentences and orders for cumulation. 

Conclusion

1. Ultimately, when considering the individual sentences, the orders for cumulation, the total effective sentence and the non-parole period, we do not consider that, in light of the fresh evidence, any lesser sentence should be imposed to avoid a miscarriage of justice.

2. For these reasons we would grant the application for an extension of time. However, we would refuse leave to appeal, consistently with s 280(1)(a) of the CPA.

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