Page (a pseudonym) v The Queen
[2021] VSCA 364
•21 December 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0238
| SHAUN PAGE (a pseudonym)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]This judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant so as not to prejudice the proper administration of justice.
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| JUDGES: | T FORREST JA and MACAULAY AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 29 October 2021 |
| DATE OF JUDGMENT: | 21 December 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 364 |
| JUDGMENT APPEALED FROM: | [2020] VCC 1528 (Judge Hogan) |
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ELECTION TO RENEW APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE
DETERMINED BY THE COURT OF APPEAL PURSUANT TO S 315 OF THE CRIMINAL
PROCEDURE ACT 2009
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CRIMINAL LAW – Appeal – Application for leave to appeal against sentence – Sexual penetration of a child under 16 – Sexual assault of a child under 16 – Grooming for sexual conduct with a child under 16 – Indecent acts with or in the presence of a child under 16 – Persistent contravention of a family violence order – Whether judge erred in diluting the weight to be given to the applicant’s character − Whether sentence manifestly excessive – SD v The Queen (2013) 39 VR 487, Torrefranca v The Queen [2021] VSCA 157, Ryan v The Queen (2001) 206 CLR 267, Bugmy v The Queen (2013) 249 CLR 571 considered – Application for leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr C Wareham | Criminal Lawyers Geelong |
| For the Respondent | Mr B Sonnet | Ms A Hogan, Solicitor for Public Prosecutions |
T FORREST JA
MACAULAY AJA:
Introduction
The applicant pleaded guilty in the County Court to sexual penetration of a child under 16 (Charge 1),[2] four charges of indecent act with or in the presence of a child under 16 (Charges 2, 3, 5 and 6),[3] grooming for sexual conduct with a child under 16 (Charge 4),[4] and sexual assault of a child under 16 (Charge 7).[5] He also pleaded guilty to one charge laid on a separate indictment of persistent contravention of a family violence order (‘IVO breach’).[6] The seven charges of sexual offences occurred against four separate children under 16 years of age.
[2]Contrary to s 45 of the Crimes Act 1958 (‘Crimes Act’).
[3]Contrary to s 47(1) of the Crimes Act.
[4]Contrary to s 49B of the Crimes Act.
[5]Contrary to s 49D(1) of the Crimes Act.
[6]Contrary to s 125A of the Family Violence Protection Act 2008.
The sentences imposed by a judge of the County Court[7] on 17 September 2020 are set out in the table below.
[7]DPP v [Page] [2020] VCC 1528 (‘Reasons’).
Sexual offence charges Offence Maximum Penalty Sentence Cumulation 1 Sexual penetration of a child under 16 10 years 4 years Base 2 Indecent act with or in the presence of a child under 16 10 years 2 ½ years 10 months 3 Indecent act with or in the presence of a child under 16 10 years 1 year 4 months 4 Grooming for sexual conduct with a child under 16 10 years 4 years 2 years 5 Indecent act with or in the presence of a child under 16 10 years 6 months 2 months 6 Indecent act with or in the presence of a child under 16 10 years 2 ½ years 10 months 7 Sexual assault of a child under 16 10 years 2 ½ years 10 months IVO breach Breach of family violence order 5 years 15 months 5 months Total effective sentence: 9 years and 5 months’ imprisonment Non-parole period: 5 years and 6 months Pre-sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991: 241 days Section 6AAA declaration: 11 years and 6 months Other relevant orders: Pursuant to s 6F of the Sentencing Act 1991, sentenced as a serious sexual offender in respect of charges 3 to 7.
Pursuant to s 34 of the Sex Offenders Registration Act 2004, the length of the reporting period is ‘Life’.
The applicant sought leave to appeal the sentence on four proposed grounds. Those four grounds were that the judge:
(a) erred by impermissibly diluting the weight to be given to the applicant’s character;
(b) acknowledged the applicant’s personality disorder(s) and their impact on his offending but did not reduce the sentence accordingly;
(c) acknowledged his deprived background and its impact on his offending but did not mitigate the sentence accordingly; and
(d) in all the circumstances of the case, imposed a sentence that was manifestly excessive.
In oral argument, the applicant developed the second and third proposed grounds as particulars of the fourth proposed ground (asserting manifest excess).
On 11 May 2021, Maxwell P refused leave to appeal.[8] Following the refusal of leave to appeal by a single judge of this Court, the applicant has exercised his entitlement under s 315(2) of the Criminal Procedure Act 2009 to have his application for leave to appeal determined by two or more judges of this Court.
[8][Page] v The Queen (Unreported, Victorian Court of Appeal, Maxwell P, 11 May 2021).
For the reasons that follow, we have come to the same conclusion as Maxwell P and refuse leave to appeal.
Background circumstances
The victims and their relationship to the applicant
In summary, the applicant committed sexual offences against the daughters of two women he was close to, and against two friends of one of the daughters.[9] During the period of offending, from 2014 to 2017, the applicant was aged between 27 and 30 years and was in receipt of a disability support pension for a mild intellectual disability.
[9]The following summary is based on the agreed summary of prosecution opening as amended 14 July 2020.
The applicant was close to Brooke Wimer,[10] whom he knew since the 1990s as his father’s partner’s daughter. Brooke Wimer and the applicant had maintained contact. He visited her at her home in Ballarat from time to time, including to stay over with her and her children. One of Brooke Wimer’s children is Georgia Embling[11] who, in November 2017 when the applicant offended in relation to her, was 12 years old.
[10]‘Brooke Wimer’ is the pseudonym for one of the complainant’s mother’s name which was used by the sentencing judge in the reasons for sentence. In this judgment we will adopt the pseudonyms used by the sentencing judge.
[11]The pseudonym used by the judge.
In 2013, the applicant began a relationship with Kate Simmons[12] whom he frequently described as his ‘carer’.[13] After spending time with Kate Simmons throughout 2014 it appears that the applicant and Kate Simmons developed an intimate relationship. In early 2015, the applicant moved into Kate Simmons’ home which she shared with her children. One of her children is Skye Simmons[14] who turned 13 years old in mid-2014.
[12]The pseudonym used by the judge.
[13]The applicant told Dr Michael Davis, a psychologist from Forensicare whose report was tendered on the plea, however, that Kate Simmons was not a trained carer but ‘just helped, pretty much helped me out… she’s got a lot of mental issues, depression, anxiety, stopping her from working’.
[14]The pseudonym used by the judge.
In 2014, Skye Simmons became friends with Chloe Turner[15] who had turned 13 early in that year. Chloe Turner met the applicant as Kate Simmons’ boyfriend. Chloe Turner trusted him and regarded him as an authority figure. Another one of Skye Simmons’ friends was Gemma Ackman[16] who also turned 13 in 2014.
[15]The pseudonym used by the judge.
[16]The pseudonym used by the judge.
Charges 2 and 4 concern the applicant’s conduct with Skye Simmons. Charges 1 and 3 concern his conduct with Chloe Turner. Charges 5 and 6 concern his conduct with Gemma Ackman. Charge 7 concerns his conduct with Georgia Embling. What follows is a chronological description of the applicant’s offending against the various complainants, and the IVO breach.
The offending
From 2014 through until early 2017, while Skye Simmons was between 13 and 16, the applicant engaged in conduct forming the basis of the charge of grooming her for sexual conduct (Charge 4). As will appear, over that period the applicant communicated with her on numerous occasions with the intention of facilitating her engagement in sexual activity, by making sexualised and inappropriate comments and overtures.
On an occasion in 2014, when Chloe Turner was staying with Skye Simmons, the applicant came into the room they were in and commented that they had nice bodies, that they were ‘using him’ and that he never got anything out of the things he did for them. On another occasion in 2014, Skye Simmons and the applicant were in his car after he had bought her some food from McDonald’s. He attempted to grab her breast but she turned away and told him she would get out of the car if he did it again. He gave her $10 so she would not tell her mother what had happened (part of Charge 4).
Between June and October 2014, the applicant also began communicating with Chloe Turner by text and in person about sexual matters. For example, that year the applicant said words to the effect that ‘her boobs were so nice and he wished he could have them’. Another time he showed Chloe Turner a pornographic video on his phone while she was in his car.
In the second half of October 2014, the applicant drove Chloe Turner and Skye Simmons to Chloe Turner’s home to collect some of her belongings. On the journey in the car, Skye Simmons told Chloe Turner that if she let the applicant ‘eat her out’ Skye Simmons would set Chloe Turner up with a boy she liked. Chloe Turner said she was ‘not okay’ with this. At Chloe Turner’s home, the applicant asked the two girls if they would let him touch or lick them, complaining that he never ‘got any action with [Skye Simmons’] Mum’ and that no one appreciated him. He then told Chloe Turner to lie down and she complied. He pulled her pants down, pushed her legs open with his hands and licked her vagina, penetrating it with his tongue. Chloe Turner was frightened and in shock. After about a minute, the applicant stopped and she pulled her pants and underwear up (Charge 1). Skye Simmons observed these events (Charge 2).
In November 2014, the applicant again drove Chloe Turner to her home. While she gathered some things, the applicant appeared at her bedroom door and said ‘oi, touch this’, grabbing her arm and placing her hand on his penis over his clothing. She said ‘no’, but he tried to make her touch it again. She pulled her hand away and he stopped (Charge 3).
In January 2015, Chloe Turner disclosed parts of the applicant’s conduct to her father, and they made a report to police. Police took recorded evidence from Chloe Turner on 18 January 2015. She obtained an intervention order against the applicant. On 4 February 2015, Chloe Turner’s father requested that no further police action be taken as he did not want Chloe Turner to have to go through the court process. She commenced at a new school in 2015.
On an occasion in 2015, when Gemma Ackman was staying with Skye Simmons, the applicant came into Skye Simmons’ room and commented about Skye Simmons’ bottom and Gemma Ackman’s breasts (part of Charge 4). In November 2015, Gemma Ackman was again staying at Skye Simmons’ home. Gemma Ackman was standing under a ladder while Skye Simmons was on the roof. The applicant approached Gemma Ackman, told her she had ‘nice boobs’ and squeezed her buttocks with his hand (Charge 5). Gemma Ackman complained to Kate Simmons who confronted the applicant about it, but he denied the allegations.
On another occasion, Gemma Ackman was asleep in Skye Simmons’ room when the applicant came in and rubbed her thigh. His shorts were down and his penis was exposed (Charge 6). Skye Simmons, who had also been sleeping in the room, woke up and yelled at him to get out of her room. On 3 December 2015, Gemma Ackman told the Welfare Coordinator at her school about the applicant’s conduct toward her.
On an occasion in 2016, the applicant came into Skye Simmons’ room while she was getting ready for school. He commented on her body and said that she was beautiful for her age. Soon after, he returned to her room and watched her while she had only her bra on. Late that year or in early 2017, the applicant again came into Skye Simmons’ room asking if he could play on the PlayStation with her. He then touched her leg and asked her to masturbate him. On yet another occasion in early 2017, in Skye Simmons’ bedroom, he offered to buy her a computer game if she would touch him and ‘jerk him off’, which she refused. He persisted, telling her what he would buy for her and gave her $20 saying they would ‘do things later that day’ (all part of Charge 4).
On 20 January 2017, Kate Simmons sought and obtained an interim intervention order against the applicant in favour of herself and her children as ‘protected persons’. The interim intervention order was served on 26 January 2017, after which the applicant moved out of the house. The final intervention order (the ‘IVO’) was served on 11 March 2017. Under the conditions of the order, the applicant was prohibited from communicating with any of the Simmons children, approaching or remaining within five metres of any of the children or attending or remaining within 200 metres of the Simmons’ home or any place where the protected persons worked or attended school or childcare.
Between 29 June 2017 and 27 July 2017, the applicant breached the IVO by attending the Simmons’ home and, in particular, communicating with Skye Simmons (the IVO breach), including:
(a) In early July 2017, the applicant called Kate Simmons, who was home with Skye Simmons. He arrived half an hour later at the Simmons’ home, asking for Kate Simmons to let him stay over. Against her repeatedly telling him to leave, he did not leave, became angry and stayed in the lounge room overnight once Kate Simmons left the room.
(b) The following week, he attended the Simmons’ home and took Kate Simmons and Skye Simmons out for dinner, afterwards saying he would stay over. Upon Kate Simmons telling him he could not, they argued and he left.
(c) On another occasion, the applicant slept in his car outside the Simmons’ home.
(d) On another occasion, Kate Simmons observed the applicant driving his car past her house and around the block repeatedly.
(e) In mid-July 2017, the applicant attended at the Simmons’ home requesting to stay. That evening, he went into the bathroom while Skye Simmons was showering and communicated with her.
In about August 2017, Skye Simmons told her mother about the applicant’s earlier conduct toward her and they contacted the police. On 4 September 2017, the police took recorded evidence from Skye Simmons. Shortly after, on 9 September 2017, the police also took recorded evidence from Gemma Ackman which revealed the allegations subject of Charges 5 and 6.
On 21 November 2017, the applicant was at Brooke Wimer’s house. Brooke Wimer told her children to go to bed. Her daughter, Georgia Embling, 12 years old at the time, stayed up playing on the applicant’s phone and then took it into her room. To retrieve his phone, the applicant entered the room that Georgia Embling shared with her sister. Georgia Embling was on the top bunk and the light was off. The applicant stood next to her bed and touched her vaginal area with his finger under her pyjamas and underpants (Charge 7). After the applicant left the room, Georgia Embling emerged, crying, and told her mother, Brooke Wimer, what had happened. Brooke Wimer put the allegation to the applicant the following day. He immediately apologised and left shortly afterwards. Two days later, Georgia Embling reported the events to the police.
The investigation into the offending against Chloe Turner was reopened in December 2017. The applicant was arrested and interviewed on 8 March 2018. He made no comment to the allegations put to him. On 19 February 2019, the applicant was charged with the sexual offences and, in October 2019, he was charged with the IVO breach.
The applicant was committed for trial on the sexual offences in August 2019, remanded in custody after being charged with breaching the IVO, after a few weeks released on bail, and then later taken into custody again for breaching bail, after which he remained in custody until sentence. In November 2019, while in custody, the applicant was admitted to St Vincent’s Hospital suffering pain referred from his back to his legs for which he underwent an extensive laminectomy for spinal canal stenosis involving all lumbar discs from L1 to L5. He was hospitalised for about six weeks.
A committal hearing took place on 5 August 2019 at which Chloe Turner was cross-examined. The sexual offence charges[17] resolved as a plea on 20 January 2020, which was the date on which the special hearings of Skye Simmons, Gemma Ackman and Georgia Embling were to commence. Because of that plea, some of the complainants were spared from giving evidence or undergoing cross-examination. On the same date, the applicant indicated his intention to plead guilty to the charge on the IVO breach.[18]
[17]Contained in indictment K10520695A.1.
[18]Contained in indictment K10520695B.
The plea hearing
The plea hearing was drawn out over three days: 21 May 2020, 14 July 2020 and 11 August 2020. On the first day of hearing, in addition to the prosecution opening, written defence submissions and a written prosecution response, the judge also had available to her a report from Ms Carla Lechner, forensic psychologist, dated 26 March 2020, filed on behalf of the applicant. The prosecution had filed an affidavit of Jennifer Hosking, Acting Assistant Commissioner, Sentence Management Division of Corrections Victoria, sworn 19 May 2020, concerning the management of the applicant while on remand, the availability of medical treatment services for prisoners and some particular treatments which the applicant had received.
Further, in view of some aspects of Ms Lechner’s report, the applicant had arranged for an appointment with Dr Matt Treeby, clinical neuropsychologist, in order to investigate the relevance, if any, of the applicant’s intellectual disability for sentencing purposes, and in particular to the potential application of certain mitigatory factors identified in R v Verdins (‘Verdins’).[19] Her Honour was also minded to request a report from Forensicare concerning the risk of the applicant’s reoffending. Accordingly, the hearing was adjourned.
[19](2007) 16 VR 269 (Maxwell P, Buchanan and Vincent JJA).
On the second day of hearing, the Court had available to it a report and supplementary report from Dr Treeby, dated 3 and 7 July 2020 respectively, and a report of Dr Michael Davis, consultant forensic and clinical psychologist, Forensicare, dated 7 July 2020, together with further written submissions from each side. During the hearing, the judge remarked that the applicant had a very complex presentation, both psychologically and physically. In view of the extensive laminectomy which the applicant had undergone while on remand, her Honour was particularly concerned to obtain more up-to-date information on the applicant’s post-operative condition and his physical rehabilitation needs. After hearing submissions from both parties on most aspects of the plea, the judge again adjourned the hearing pending further evidence about the applicant’s physical condition.
Prior to the third day of hearing, the Court received a letter from Justice Health which attached a one-page ‘Functional Assessment’ report from an occupational therapist who had reviewed the applicant on 29 June 2020. The letter also stated that the applicant had been seen twice by physiotherapists and set out a short report from Correct Care Australasia, the primary health care provider for the applicant while in prison. During the course of the hearing on that day, the judge sought and obtained (in some instances, directly from the applicant) a detailed description of the applicant’s physical symptoms and limitations and medical regime consequent upon the performance of the laminectomy, as well as his treatment for his depression. The judge expressed some disquiet about the level of detail in the written report and the inconsistency between some of its contents and the picture presented at the hearing of the applicant’s actual condition.
Sentencing reasons
In her thorough and comprehensive sentencing reasons, after noting the maximum penalties for the offences to which the applicant had pleaded guilty, the sentencing judge summarised the circumstances of the offending.[20]
[20]Reasons [1]–[21].
The judge summarised the applicant’s personal circumstances (and some other offending) including that:[21]
[21]Ibid [22]–[24], [61], [63].
(a) the applicant’s mother had abandoned him and his younger sibling, leaving them with their father when the applicant was two years old;
(b) the applicant’s father was alleged to have had a dependence on alcohol and to have been violent towards the applicant (although the judge observed that this allegation was somewhat inconsistent with a recent history that had been given to Dr Davis);
(c) the applicant had learning and behavioural issues, which were not well-catered-for in his education despite a diagnosis of mild intellectual disability at 13 years of age;
(d) Ms Lechner recorded that the applicant fell within the ‘extremely low/borderline’ range of intelligence with an IQ of 73 and that he was suffering symptoms of a Major Depressive Disorder;
(e) Dr Treeby had diagnosed the applicant with an adjustment disorder with anxiety and depression;
(f) Kate Simmons seemed to be the only longstanding support and carer the applicant had (apart from his younger sister and cousin trying to help from time to time); and
(g) the only relevant prior conviction was a conviction for contravening interim and final family violence intervention orders, which was prior in time only to Charge 7.
The judge set out a detailed summary of the reports of the three psychologists Ms Lechner, Dr Treeby and Dr Davis.[22] Her Honour particularly noted the applicant’s reported inability to accept the allegations made against him despite the guilty pleas.[23] Her Honour also described the occupational therapist’s report of the applicant’s post-operative condition and treatment regime while he was in prison and commented on some shortcomings in that respect.
[22]Ibid [24]–[44].
[23]Ibid [32].
The judge then referred to and drew conclusions on numerous matters, namely:
(a) whether various mitigatory factors identified in Verdins applied by reason of any nexus between the applicant’s mental impairment and his offending, the burden of imprisonment by reason of those impairments and the effect of prison upon them;[24]
[24]Ibid [51]–[53].
(b) the extent to which the applicant’s guilty plea, with the associated consideration of his insight into his offending, entwined with his intellectual impairment and personality disorder, was a mitigatory factor;[25]
[25]Ibid [54]–[55].
(c) the applicant’s risk of reoffending having regard to his particular mix of personality features and disorders;[26]
[26]Ibid [56]–[60].
(d) the weight to be attributed to the applicant’s background of significant disadvantage;[27]
[27]Ibid [61]–[62].
(e) the circumstance that the applicant occupied a position of trust with his victims in the context of considering the significance of him having no prior history of sexual offending against children;[28]
[28]Ibid [63].
(f) the impact of the offending upon the applicant’s victims;[29]
[29]Ibid [64]–[71].
(g) the features which made the applicant’s offending a particularly serious example of such offending;[30]
(h) the legal significance of the applicant being sentenced as a serious sexual offender for Charges 3 to 7;[31] and
(i) the sentencing considerations relevant to the charge of persistent breach of the IVO.[32]
[30]Ibid [74]–[76].
[31]Ibid [77].
[32]Ibid [78].
With this description of the background to the application for leave to appeal we turn to each of the proposed grounds.
Proposed ground 1
Before us, the first proposed ground was that the learned sentencing judge erred by impermissibly diluting the weight to be given to the applicant’s character.[33]
[33]The original ground as argued before Maxwell P was: ‘The Learned Judge fell into error by concluding that the Applicant’s lack of prior convictions for sexual offending was not a mitigating factor pursuant to section 5AA of the Sentencing Act 1991, in particular where the Applicant was not afforded procedural fairness in making submissions on the issue.’ By consent, the ground was amended on the election hearing in the form as stated.
A number of statutory provisions bear upon the relevance of character (whether good or bad) in the sentencing process. Section 5(2)(f) of the Sentencing Act1991 requires a court to take into account the ‘offender’s previous character’. Among other things, in determining the offender’s character the court ‘may consider’ (a) the number, seriousness, date, relevance and nature of any previous findings of guilt or convictions of the offender; (b) the general reputation of the offender; and (c) any significant contributions made by the offender to the community: section 6.
In cases concerning child sexual offences (as here), s 5AA provides that:
… a court must not have regard to the offender's previous good character or lack of previous findings of guilt or convictions if the court is satisfied the offender’s previous good character or lack of previous findings of guilt or convictions was of assistance to the offender in the commission of the offence.
Proposed ground 1 focused upon the following paragraph (‘paragraph 63’) from the Reasons:
You have no prior history for sexual offending against children; however, this is a factor which receives less weight in cases like this, because your prior good character in this regard enabled you to be in a position of trust in relation to all of your child victims, and you abused that trust in a terrible way. Thus, in sentencing you, the Court must denounce your conduct and place appropriate emphasis upon general and specific deterrence, protection of the community, and just punishment.
The applicant acknowledged that this was not a case in which the judge had purported to apply s 5AA,[34] because, as revealed by paragraph 63, the judge gave some weight (rather than had no regard to) the applicant’s lack of previous findings of guilt or convictions.
[34]Contrary to the original formulation of ground 1: see n 32.
Essentially, the applicant argued that the judge diluted the weight to be given to the mitigatory factor of the applicant’s previous good character because he had used his position of trust to offend, while at the same time taking that same breach of trust into account as an aggravating factor on penalty. This, the applicant contended, was a form of double punishment as identified in cases such as SD v The Queen (‘SD’)[35] and Torrefranca v The Queen (‘Torrefranca’).[36]
[35](2013) 39 VR 487 (Ashley, Redlich and Priest JJA).
[36][2021] VSCA 157 (McLeish and Osborn JJA).
In Torrefranca, this Court reviewed the facts and statements of principle in Ryan v The Queen (‘Ryan’),[37] Wakim v The Queen[38] and SD, and concluded:
Two facets of the treatment of good character are in play here. The first is the extent to which the significance of prior good character is diminished where the offending has involved a breach of trust. Ryan shows that it may be very considerably diminished in the case of repeated offending closely connected with the context in which the good character was earned. Both SD and Wakim indicate that where that connection is absent and the offending is isolated, the diminution is likely to be much less.
The second aspect is the need to avoid double punishment. If good character has been diminished as a sentencing consideration by virtue of the offender’s breach of trust, that breach of trust cannot also be taken into account in aggravation of the penalty to be imposed, and vice versa. This does not mean that good character ‘cancels out’ the breach of trust: the sentencing judge need not give equal weight to the aggravating impact of a breach of trust and to the offender’s prior good character. The sentencing judge, as explained in the above passages, need only ensure the same breach of trust is not counted twice, so as to amount to double punishment.[39]
[37](2001) 206 CLR 267.
[38][2016] VSCA 301 (Redlich JA and Beale AJA).
[39][2021] VSCA 157, [38]–[39] (McLeish and Osborn JJA).
In the present case, the applicant did not deny that his offending involved a breach of trust – indeed, he conceded as much both before the sentencing judge on the plea and before us. Rather, he contended that both ‘facets’ referred to in the passage from Torrefranca were also in play before the judge and that the judge’s approach to each of them involved error. First, to the extent that any diminution of allowance for good character was warranted because his offending involved a breach of trust, he argued that the judge was wrong to find that the applicant’s good character had ‘enabled’ him to occupy the position of trust with each of the child victims. Secondly, he contended that if his good character was diminished by virtue of his breach of trust, that same breach of trust could not also be taken into account, yet was taken into account, in aggravation of the penalty imposed.
Having identified where her Honour reduced the weight to be given to the lack of prior convictions, the applicant sought to identify where the judge also took into account the breach of trust as a further aggravating factor. Nowhere in the Reasons did the judge state expressly that she took the breach of trust into account in that way. Instead, the applicant pointed again to paragraph 63 and to the judge’s statement, ‘and you abused that trust in a terrible way’, and the reference to the need to denounce his conduct and to give appropriate emphasis to general and specific deterrence, protection of the community and just punishment.
In short, the applicant contended that having permissibly taken into account that his offending involved a breach of trust, the judge excessively diminished the weight to be given to his good character by wrongly finding an enabling link between his good character and the breach of trust and, further, impermissibly used the breach of trust again as an aggravating factor for penalty.
In our opinion there are a number of reasons why these contentions lack substantive merit. Overall, we think there is an air of unreality in the degree to which the judge’s reasons have been parsed in order to make out these arguments. In explaining our reasons it is useful, both for parallels and contrasts, to set out what was said by McHugh J in Ryan when considering the interplay between the offender’s (in that case, a priest) ‘otherwise good character’ over his years of parish work, and his sexual offending against children committed in the course of that work:
Sentencing is not a mathematical process. Various factors have to be weighed. The otherwise good character of the prisoner is one of them. It is a mitigating factor that the sentencing judge is bound to consider. But the nature and circumstances of the offences for which he or she is being sentenced is a countervailing factor of the utmost importance. The nature of the offences for which the appellant was being sentenced meant that his otherwise good character could only be a small factor to be weighed in the sentencing process.
First, there were multiple offences involving repeated acts committed over a number of years. They were not isolated incidents which might be said to be out of character. Secondly, the appellant was, as his counsel conceded before Judge Nield, leading a double life. Over many years, the appellant was doing ‘good works’ while he was committing grave offences. This contradiction indicates that the appellant’s otherwise good character was a minor factor to be weighed. Thirdly, the appellant committed the offences in the course of his priestly duties and it was as a priest that he did the ‘good works’ which are at the heart of his claim of good character. This reduces the weight that ought to be given to his otherwise good character. Fourthly, and related to the third point, the offences involved breaches of trust.[40]
[40](2001) 206 CLR 267, 278 [33]–[34] (citations omitted).
First, by way of contrast, in the present case the applicant’s relevant ‘good character’ consisted in little, if anything, beyond an absence of prior convictions at the time of offending. That is not to say that the applicant was bereft of any favourable character attribute by not having any prior convictions (at least for child sexual offending). But it must be realistically acknowledged that the applicant’s ‘previous character’ did not loom as a prominent mitigatory factor. This immediately distinguished the applicant from the offenders in Ryan, SD and Torrefranca where, in each case, the offender had identifiable positive attributes by which it could be said that they were of ‘otherwise good character’.
In Ryan, the offender was a priest who, from numerous testimonials, had been shown to have performed good works toward parishioners and achieved much good for others over many years. In SD, the offender had been a good provider and carer for his family and had a good work history of long standing. In Torrefranca, the 62‑year-old offender had moved his family from the Philippines to escape harassment, had a long and successful work history, had sought jobs that helped others and was retraining for community service work, and, in respect of whom, numerous character references were tendered to the Court.
In order for a factor to be ‘double counted’, it has to be capable of being meaningfully counted in two ways. Compared with the three cases we have mentioned, it is a little more difficult in the applicant’s case to discern the affirmative, mitigatory aspects of his ‘otherwise good character’ that were capable of being offset by reference to his offending having been committed via a breach of trust. In other words, it is more difficult to see how the applicant suffered any quantifiable disadvantage by the reduction in weight to be given to his ‘otherwise good character’ by the breach of trust.
Secondly, as mentioned, the applicant had some difficulty in unambiguously identifying the two distinct ways in which the judge took the breach of trust into account against him. We think that is telling. Instead of interpreting paragraph 63 as if it contained the same deduction made twice, more realistically the paragraph shows the judge taking a holistic account of the impact of the applicant’s breach of trust upon the sentencing outcome. Set against any favourable consideration of character, her Honour took into account, in one sweep, the ‘countervailing factor of utmost importance’, that is, the nature and circumstances of the applicant’s offending in that it was committed with many child victims abusing a position of trust ‘in a terrible way’. The impact of that countervailing factor on the mitigatory feature of character (to the extent it existed) swung the focus to the particular sentencing objectives the judge then identified.
In short, we do not accept the ’double counting’ argument.
Thirdly, the offending that gave rise to Charges 3, 5 6 and 7, and a large part of Charge 4 (grooming Skye Simmons), took place after the vaginal penetration of Chloe Turner (witnessed by Skye Simmons) in about October 2014 giving rise to Charges 1 and 2. It is true that the applicant was not convicted at that time of offending under Charges 1 and 2, and his further offending did not occur in the context of a prior conviction for those offences. That said, treating his offending from 2015 onwards as if committed by him as a person of ‘otherwise good character’ would be ignoring reality. Although the determination of character relevant to sentencing may be informed by taking into account prior convictions and findings of guilt, those are not exclusive considerations.
Another way of approaching the issue is to bear in mind that the offending for which the applicant was to be sentenced was offending committed over a number of years against different victims. It was not an isolated event (as was the case in SD and Torrefranca). As noted by McHugh J in Ryan, the circumstance that offending occurs over a long time will operate logically to reduce the weight that could be given to any previous good character as a mitigatory factor.
Fourthly, in the circumstances of this case, we find nothing wrong with her Honour’s conclusion that, to the extent that the applicant possessed ‘good character’, that attribute relevantly enabled him to offend — at least in respect of the charges following the first incident in late October 2014. As already mentioned, the applicant’s ‘good character’ subsisted in little more than a negative, ie, an absence of prior conviction at the time of his offending. While he did not ‘earn’ his position of trust from other good works, neither did his so-called good character come from such good works. His assumed trustworthiness around his child victims existed in the context of family settings. In part, that trust was engendered or at least sustained by reason of him not having any known proclivity to sexually interfere with or take inappropriate interest in pubescent females. To that extent, the ‘good character’ attribute that he possessed was related to the trust in which he was held.
Finally, if there was any specific error by reason of any double counting or the finding that the applicant’s lack of prior convictions enabled the offending, such error could have made no appreciable difference to the sentence. For the reasons we have explained, the dimension of any difference between only taking into account the breach of trust as an aggravating factor and also taking it into account to reduce the mitigatory factor of his ‘otherwise good character’ was truly negligible.
Proposed grounds 2, 3 and 4
Although proposed grounds 2 and 3 were framed as specific errors, in oral argument the applicant addressed them as particulars of his fourth proposed ground, namely that the sentence imposed was manifestly excessive. That is how we will treat them.
The second proposed ground contended that the sentencing judge failed to give appropriate weight to the applicant’s childhood disadvantage. The third contended that the judge gave insufficient weight to the applicant’s personality disorders.
Following her extensive review of the applicant’s history and the psychologists’ opinions, the sentencing judge addressed the applicant’s background disadvantage in these terms:
… the Court acknowledges that you have had a background of significant disadvantage. Your mother abandoned you when you were only two years of age, leaving your father to struggle as best he could with you and your younger sibling. You had learning and behavioural issues, which were not well catered for in the education system, despite the fact that you were diagnosed with a mild intellectual disability when you were aged 13 years. Unhappily, you fell through the cracks of the education system and have led a sad life, characterised by inadequate education, concrete thinking skills, a lack of vocational skills, longstanding depression and social isolation. As mentioned, Ms Kate Simmons, the mother of one of your victims, seems to be the only longstanding support and carer you have, albeit that your younger sister and your cousin have tried to help you from time to time.
The Court acknowledges the long-term adverse impact of childhood disadvantage and neglect which in all probability has resulted in the problematic personality traits described by Dr Davis. These traits compound the disadvantages you suffer because of intellectual impairment and longstanding depression and associated anxiety. Unhappily, these same features mean that you pose a significant risk of reoffending again in a sexual way against female children, although I accept Dr Davis’s careful analysis that female children are not necessarily your first sexual preference. Nonetheless, you are a potential danger to pubescent or post-pubescent underage females in circumstances where you are not receiving sexual satisfaction from an adult female or where you have unrestricted access to underage females. This is a situation of grave concern to this Court.[41]
[41]Reasons [61], [62].
In Bugmy v The Queen (‘Bugmy’),[42] the High Court explained that because the effects of profound childhood deprivation do not diminish with the passage of time, ‘full weight’ is to be given to an offender’s deprived background. Nevertheless, such background may not have the same mitigatory relevance for all the purposes of punishment. In the context of violent offending against a background of exposure to violence and alcohol abuse, the Court observed that such childhood exposure may explain recourse to violence so as to reduce an offender’s moral culpability while at the same time increase the importance of protecting the community from the offender.[43]
[42](2013) 249 CLR 571.
[43]Ibid 595 [44] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).
The applicant acknowledged that her Honour found that the applicant’s social disadvantage contributed to his ‘problematic’ personality traits which, in part, explained his offending but also meant that he poses a serious risk of reoffending. While he was ‘entitled to a discount for his social disadvantage’, the applicant argued that there was no evidence of such discount having been afforded, either by the terms of the sentencing reasons or in the overall sentence given.
We do not accept that the judge failed to give appropriate weight to the applicant’s deprived background as a sentencing factor. Indeed, her Honour comprehensively described the relevant features of that background and demonstrated a compassionate understanding of its role in forming the applicant’s make-up, which in turn provided some explanation for his offending. Although Bugmy was not cited on the plea, her Honour’s acknowledgment of the long-term adverse impact of childhood disadvantage and its potential to operate in a conflicting way in sentencing demonstrated that she both understood the principle and applied it to the circumstances before her.
Moreover, it is not the case that the applicant received no mitigatory benefit due to this consideration. At one point, her Honour reiterated that she was conscious of the applicant’s ‘intellectual, psychological and physical vulnerabilities’ as mitigatory matters which she took into account.[44] Later again, stating that she was conscious of ‘your lack of supports in the community and the very challenging complex problems which you have’, the sentencing judge set a lower non-parole period (less than 60 per cent of the overall sentence) than she might otherwise have provided. In context, the reference to the applicant’s challenging complex problems was a label for the suite of issues confronting the applicant, both physical and psychological. The psychological issues included his problematic personality features, in part engendered by his childhood deprivation. As noted, they had relevance as a context for the offending itself, and also (as will shortly be discussed) for the way in which the applicant would experience custody.
[44]Reasons [79].
The second specific particular relied upon for the proposed ground of manifest excess focused on the weight given to the applicant’s personality disorders in the wake of Brown v The Queen (‘Brown’),[45] a decision handed down after the conclusion of the plea but before the sentence. In Brown, this Court held that a person diagnosed with a personality disorder should be treated in no different position than any other person who sought to rely on an impairment of mental functioning as mitigating sentence in one or other of the ways identified in Verdins.
[45](2020) 62 VR 491 (Maxwell P, Niall, T Forrest, Emerton and Osborn JJA).
Ultimately, on the plea before her Honour, after receipt of the reports of Dr Treeby and Dr Davis, the applicant relied most forcefully on the application of the fifth and sixth limbs[46] of Verdins and more tentatively in respect of the first limb.[47] The tentative nature of the submissions with respect to the first limb was understandable given the medical evidence before the Court. That evidence was that the most obvious explanation for the applicant’s offending was that he had a hebephiliac sexual interest (ie, a sexual interest in pubescent and pre-pubescent children) which he failed to inhibit behaviourally. Otherwise his impairments (concrete thinking, limited ability to make appropriate judgments, emotional immaturity and impulsivity) ‘may have played a minor role’ in the commission of the offences.
[46](5) That by reason of his mental impairments, prison would weigh more heavily on the applicant than it would on an offender in normal health, and (6) that there was a serious risk that imprisonment would have a significant adverse effect on the applicant’s mental health.
[47](1) That the applicant’s mental impairments reduced the moral culpability of the offending conduct.
Given the requirement stated in DPP v O’Neill,[48] that a ‘realistic connection’ be shown between the relevant impairment and the offending, and having regard to the tentative submission made on behalf of the applicant, it was unsurprising that the sentencing judge did not specifically take into account any reduced moral culpability by reason of the applicant’s various mental impairments and personality make-up. However, despite not affording the particular mitigatory allowance referred to in any of the first to fourth limbs of Verdins, the sentencing judge took into account the applicant’s intellectual impairment and psychological condition
in a general way, albeit that they cannot be given the same weight in moderating [his] moral culpability and the emphasis to be placed upon general deterrence in sentencing as if the first four principles in R v Verdins did apply.[49]
[48](2015) 47 VR 395 (Warren CJ, Redlich and Kaye JJA).
[49]Reasons [51].
Her Honour further referred to the prosecution’s concession that the fifth limb of Verdins had some application because the applicant’s intellectual disability and mental health would likely make serving a term of imprisonment more burdensome than for a person without such issues. In relation to the sixth limb, the judge noted that there had been no evidence that the applicant’s intellectual disability would worsen whilst in custody. Still, her Honour found there was evidence that the status of the applicant’s depression had worsened whilst he was on remand. Her Honour accepted the prosecution’s concession that, to that extent, the sixth limb of Verdins applied.[50]
[50]Ibid [52].
In the result, recourse to the judge’s consideration of the mitigatory impact of childhood disadvantage and mental impairment does not assist the applicant in persuading us that the overall sentence was manifestly excessive.
The applicant offended over a period of three years. His four victims were between 12 and 16. The impact of his offending upon them, and their parents, as demonstrated by the victim impact statements, was profound. The first offence was a serious example of sexual penetration. The offending occurred in the context of breach of trust. Although he pleaded guilty, the applicant’s plea came upon the day when several of his victims were due to face cross-examination and after one had been cross-examined at a committal hearing already. As reported by the psychologists, the applicant did not accept that he had offended and showed no remorse. And, significantly, the applicant’s mental impairments and personality disorders were such that he had a moderate-to-high risk of reoffending. The need for community protection was a significant consideration, as were the sentencing purposes of general deterrence and denunciation.
Viewed against that perspective, we are not persuaded that the sentence exhibits any failure to give appropriate weight to any mitigatory factors. In our opinion no individual sentence falls, nor does the total effective sentence fall, ‘wholly outside of the range of sentencing options available’. Nor can it be said that they were not reasonably open to the sentencing judge.[51]
[51]Clarkson v The Queen (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA).
Conclusion
Leave to appeal is refused.
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