Patrick Dexter (a pseudonym)[1] v The Queen
[2022] VSCA 74
•22 April 2022
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2021 0168
| PATRICK DEXTER (a pseudonym)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]To ensure that there is no possibility of identification of the victims of sexual offending, this judgment has been anonymised by the adoption of pseudonyms in place of the names of the applicant and the victims.
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| JUDGES: | KYROU JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | Determined on the papers |
| DATE OF JUDGMENT: | 22 April 2022 |
| MEDIUM NEUTRAL CITATION: | [2022] VSCA 74 |
| JUDGMENT APPEALED FROM: | [2021] VCC 907 (Judge Gucciardo) |
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CRIMINAL LAW – Appeal – Sentence – Eight charges of sexual penetration with child under 16, one charge of persistent sexual abuse of child under 16 – Five victims – Total effective sentence 9 years, 6 months’ imprisonment, non-parole period 6 years, 3 months – Whether sentence manifestly excessive – Application for extension of time – Extension of time granted – Leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| No appearances |
KYROU JA:
Introduction and summary
On 10 May 2021, the applicant pleaded guilty to the charges set out in the table below and, on 5 July 2021, he was sentenced by a County Court judge as set out in that table:[2]
[2]DPP v Dexter (a pseudonym) [2021] VCC 907 (‘Sentencing remarks’). The applicant pleaded not guilty to charge 1 on the indictment. That charge was subsequently severed from the indictment.
Charge Offence Maximum Sentence Cumulation 2 Sexual penetration with a child under 16 [Crimes Act 1958 s 45] 10 years 3 years 3 months 3 Sexual penetration with a child under 16 10 years 3 years 3 months 4 Sexual penetration with a child under 16 10 years 3 years 3 months 5 Sexual penetration with a child under 16 10 years 3 years 3 months 6 Sexual penetration with a child under 16 10 years 3 years and 3 months 3 months 7 Sexual penetration with a child under 16 10 years 3 years and 3 months 3 months 8 Sexual penetration with a child under 16 10 years 3 years 3 months 9 Sexual penetration with a child under 16 10 years 3 years 3 months 10 Persistent sexual abuse of a child under 16 [Crimes Act s 47A] 25 years 7 years and 6 months Base Total effective sentence: 9 years and 6 months’ imprisonment Non-parole period: 6 years and 3 months Section 6AAA statement: 12 years’ imprisonment with a non-parole period of 8 years and 6 months Other relevant orders: Sentenced as a serious sexual offender for charges 4–10; sex offender registration for life
The applicant seeks leave to appeal against his sentence on the following proposed ground:
In all the circumstances, the sentence imposed on the base sentence (charge 10 — persistent sexual abuse of a child under 16) was:
a)manifestly excessive, and
b)… productive of a total effective sentence and non-parole period that is manifestly excessive.
The applicant also seeks an extension of time within which to file his notice of application for leave to appeal against sentence.
For the reasons that follow, the application for extension of time will be granted but the application for leave to appeal will be refused.
Extension of time
Pursuant to s 279(1) of the Criminal Procedure Act 2009, an offender may file a notice of application for leave to appeal against sentence within 28 days after the day on which he or she is sentenced. Section 313 provides that the Court may extend that time.
Having been sentenced on 5 July 2021, the applicant had until 2 August 2021 to file a notice of application for leave to appeal. He filed his notice on 24 November 2021, nearly four months out of time. Accordingly, on that date, he also filed an application for an extension of time.
The applicant’s solicitor swore an affidavit in support of the application for an extension of time. He relevantly deposed as follows:
On 10 May 2021 [the applicant] was arraigned. He pleaded Guilty to all counts except count 1 on the indictment. That count was adjourned to 20 July 2021 and then administratively to 31 August 2021 for a Directions Hearing.
…
A transcript of the pleas was requested on 16 July 2021. According to Victorian Government Recording Service only audio recordings were available. They were supplied on 20 July 2021.
On 22 July 2021, an initial memorandum of advice was received from Jennifer Ball of Counsel in support of an Application for Leave to Appeal against Sentence.
On 30 August 2021, a Notice of Discontinuance was filed in the County Court at Melbourne by the Director of Public Prosecutions in relation to indictment K1219534A, which had been severed from the original indictment and plea made by the Applicant on 10 May 2021.
On 30 August 2021 an amended memorandum of advice was received from Jennifer Ball of Counsel in support of the application for legal assistance from Victoria Legal Aid and to obtain funding for an Application for Leave to Appeal against Sentence.
…
On 2 September 2021 application for legal assistance was made to Victoria Legal Aid with the advice of counsel attached. Victoria [Legal] Aid requested copies of documents tendered on the plea and these were provided on 13 September 2021.
Victoria Legal Aid granted funding by letter dated 8 November 2021 and received on 9 November 2021.
Ms Jennifer Ball of Counsel together with Christopher Wareham of Counsel were then briefed to appear on behalf of [the applicant] for the Application for Leave to Appeal against Sentence.
The Grounds for Appeal and Written Case were provided by counsel on 19 November 2021.
The delay has been caused by the ongoing impact and pressure of the COVID 19 pandemic upon the courts, Corrections, VGRS and legal practitioners. There has also been a significant increase in the workload for Victoria Legal Aid, counsel and myself.
The Application for legal assistance, Notice of Appeal, Written Case and List of Authorities have been prepared as diligently and expeditiously as possible.
[T]he Applicant has not been responsible for any of the delay in this matter …
The Crown opposed the application for an extension of time for five reasons. First, the delay was not insubstantial. Secondly, the bald, unparticularised references to ‘the ongoing impact and pressure of the COVID 19 pandemic’ and the ‘significant increase in … workload’ did not provide a cogent explanation for the delay. Thirdly, the fact that the delay apparently arose as a result of the applicant’s legal representatives did not ‘immunise’ the applicant from the consequences of the failure to file on time, especially when the material filed in support of the application did not disclose when the applicant gave instructions to seek leave to appeal. Fourthly, the victims were entitled to finality in the criminal process. Fifthly, the application for leave to appeal does not enjoy prospects of success.
There is considerable merit in the Crown’s submissions. In particular, the vague and general references in the solicitor’s affidavit to ‘the ongoing impact and pressure of the COVID 19 pandemic’ and the ‘significant increase in … workload’ as the causes of the delay do not satisfy the requirement that such an affidavit must set out a frank and thorough explanation for the delay.[3] However, in the circumstances of this case, I am prepared to grant the application for an extension of time.
[3]See Longley v The Queen [2021] VSCA 288, [11]–[13]; Lee v Yap [2021] VSCA 297, [48].
Circumstances of the offending
The offending occurred between 2003 and 2011 against five victims. A high level summary of the offending is as follows:
(a)In August 2003, when the applicant was aged 20, he commenced a sexual relationship with Danielle Stuart,[4] who was a 14 year old Year 9 student. Shortly after the relationship began, the applicant moved to live with Danielle and her frail mother at their home. The relationship continued throughout Danielle’s teenage years. Charges 2, 3, 4, 6 and 8 relate to Danielle. The offending the subject of those charges was committed between August 2003 and December 2004 when Danielle was between 14 and 15 and the applicant was between 20 and 21. In 2009, when she was 20, the applicant married Danielle. Sometime before 2010, they moved to live in their own home. They continued to reside with each other until they separated in October 2012. They divorced in 2016.
(b)Between September 2003 and December 2004, after moving to live with Danielle and her mother, the applicant associated with Alexandra Mason,[5] Kiki Norris[6] and Jaqueline Thomas,[7] who were each 14 or 15 years of age and friends or acquaintances of Danielle. The applicant groomed them and invited them to spend the night with him and Danielle, where he encouraged them to engage in sexual activity with both himself and Danielle while he was present. Charge 5 relates to Alexandra, charge 7 relates to Kiki and charge 9 relates to Jaqueline.
(c)In late 2010, when the applicant was 27 years of age, Anastasia McMahon,[8] who was 14 and homeless, moved to live with the applicant and Danielle at their home. Anastasia was effectively in their care and they fulfilled a parental role in relation to her. On an occasion in February 2011, when she was 15, the applicant sexually penetrated Anastasia at their home. He maintained a sexual relationship with her until her 16th birthday on 4 December 2011. Charge 10 involves four instances of sexual penetration of Anastasia by the applicant.
[4]A pseudonym.
[5]A pseudonym.
[6]A pseudonym.
[7]A pseudonym.
[8]A pseudonym.
A more detailed summary of the offending, as set out in the judge’s sentencing remarks, is as follows:
Charge 2: In about July 2003, Danielle met [the applicant] as [he was] working at an ice arena as a DJ. [He] obtained [her] mobile phone and MSN Messenger account details from her friends and subsequently contacted her. … Her mother told Danielle to back off because of [their] age difference. Danielle told [him] about the discussion that she had with her mother and [he] subsequently made arrangements to go around to her house and talk [to] her mother purportedly.
Between 25 August 2003 and 10 September 2003, it was arranged that [the applicant] would come to Danielle’s home to meet her mother. However, rather than going inside while her mother was home, [he] waited outside the house until Danielle’s mother [left] the house. [He was] aware that Danielle’s mother had a medical appointment that day and later told her that [he was] waiting down the road until her mother left so [he] could be alone with her.
When [the applicant] went into the house, [he was] shown around and [he] went into her bedroom. [He] sat next to Danielle on her bed and kissed her. [He] removed her jeans and underwear and placed a condom onto [his] penis. [He] then lay on top of her and placed [his] penis into her vagina. She was scared and intimidated and didn’t know what to do so she just lay on the bed and didn’t say anything.
[The applicant] so penetrated her for about five minutes before [he] got off her, removed the condom and tied a knot in the end and put it in the wrapper before putting it into [his] pocket. [Danielle] then went to the toilet and immediately called a friend and told her what had happened. She was a virgin at the time.
Charge 3: In September 2003, Danielle’s uncle died. She was close to her uncle and was finding it hard to cope with caring for her mother. As she was struggling, she asked [the applicant] if [he] could come to her house and help her watch out for her mother. [He] agreed to help out and subsequently spent a lot of time at her home. After 11 September, [he] did not leave Danielle’s home and effectively moved in to live with her and her mother. Despite the age difference, [he] slept with Danielle in her bedroom. At that time, Danielle’s mother was heavily medicated and did not seem to notice.
On or about 13 September 2003, [the applicant was] in bed with Danielle and [they] were watching a movie. [He] kissed her and removed her underwear before [he] lay on top of her and penetrated her vagina with [his] penis.
About three weeks after [the applicant] moved in, Danielle asked her mother if the two of [them] could use the master bedroom and her mother agreed. Danielle told investigators that there were other times that she engaged in sexual activity with [the applicant] during that time but she was unable to remember the details.
Charges 4 and 5 relate to Danielle Stuart and Alexandra Mason: On [a] night between 25 August 2003 and 31 October 2003, Alexandra stayed overnight at the home of Danielle Stuart after she had an argument with her father. It was agreed that she would sleep on a mattress that had been placed on the floor in Danielle’s bedroom. During the night, they watched a movie while [the applicant was] in bed and Alexandra was lying on the mattress on the floor.
[They] had all consumed a small amount of alcohol. [The applicant] asked Danielle and Alexandra if they had ever had a threesome. [He] then told them that [he] would tell their parents that they had been drinking alcohol if they did not do things with [him]. [He] kissed Danielle and [he] moved onto the mattress with Alexandra. [He] removed Danielle’s pants and took a condom from the drawer beside the bed and placed it onto [his] penis. [He] then placed [his] penis into Danielle’s vagina and sexually penetrated her while [he was] close to Alexandra.
[The applicant] then told Danielle to ‘go down’ on Alexandra and helped her to remove her pants. Alexandra then licked Danielle’s vagina for a short time. [He] then got on top of Alexandra and placed [his] penis into her vagina. [He] penetrated her while [he was] with Danielle on the mattress. When [he] had finished penetrating her, [he] removed the condom and tied a knot at the end of it.
Charges 6 and 7 concern Danielle Stuart and Kiki Norris. On [a] night between 1 October 2003 and 13 March 2004, Danielle Stuart was exchanging SMS messages with a friend Kiki Norris when [the applicant] arranged to go to her home and collect her and take her back to [their] home for the night. [He] then purchased some alcohol. Danielle and Kiki consumed about four vodka cruisers while they were watching tv and chatting. They then decided that it was time to go to bed.
They were all going to sleep in the same bed and [the applicant] told them that [he] wanted to sleep in the middle. But Kiki snuggled up to Danielle so [he] laid behind her on the side of the bed. [He] reached over Kiki and grabbed her breast over her T-shirt. [He] then placed [his] other hand down the pants and rubbed her clitoris. Kiki and Danielle then engaged in sexual activity with each other for a period of time before they stopped and sat on the end of the bed. [He] moved round so that [he was] in front of them and removed [his] penis from [his] pants and then placed [his] penis into the mouth of Danielle and Kiki who took turns performing oral sex on [him].
[The applicant] then took a condom from a bedside table, placed that onto [his] penis. [He] waved Kiki over to [him] and she lay on the bed before [he] climbed onto her and placed [his] penis into her vagina while Danielle was kissing her. [He] penetrated Kiki’s vagina for a period of time. [He] called Danielle over to the bed and [he] climbed on top of her and placed [his] penis into her vagina while Kiki was nearby. After [he] ejaculated, [he] removed the condom and tied a knot at the end.
Charges 8 and 9 concern Danielle and Jaqueline Thomas. On a day between 1 December 2003 and 31 December 2004, during the school holidays in December, Danielle and [the applicant] were working a party boat. Before [he] went on the boat, [he] met Jaqueline Thomas and her friend who I shall refer to as Richard Bowen.[9] Danielle knew Richard and invited him and Jaqueline to go for a cruise around the bay and then go back to their place for a catch-up. The group went on the cruise and then went back to Danielle’s home. It was arranged that Jaqueline would stay the night at [their] home. After Richard left, Jaqueline was sitting on the couch in the lounge room watching a movie. [The applicant] told her that she did not have to sleep on the couch and invited her to sleep in [his] bed.
[9]A pseudonym.
[The applicant], Danielle and Jaqueline went to bed and lay together in bed watching a movie. Jaqueline was laying between [him] and Danielle. Danielle fell asleep and after some conversation with Jaqueline, [he] placed [his] hand down her pants and rubbed her clitoris. [He] then woke up Danielle and Danielle took her pants off. [He] then took a condom from the bedside cupboard and placed it onto [his] penis. [He] then lay on top of Danielle and placed [his] penis into her vagina. [He] penetrated her while Jaqueline was close by.
After [the applicant] had penetrated Danielle for a few minutes, [he] stopped and lay on top of Jaqueline. [He] placed [his] penis into Jaqueline’s vagina and penetrated her until [he] ejaculated. Danielle was holding her hand while [he was] sexually penetrating her. [He] then removed the condom from [his] penis and tied a knot in it.
Charge 10 — persistent sexual abuse of a child under 16 concerns Victim Anastasia McMahon. On or about November 2010, Anastasia moved in to live with [the applicant] and Danielle in [their] home. She was 15 years of age and was homeless at the time. [The applicant was] 27 years of age. She was given her own bedroom.
The charge of persistent sexual abuse of a child under 16 encompasses four specific occasions on which Anastasia was sexually penetrated by [the applicant] when she was 15 years of age. Those occasions occurred between February 2011 and 3 December 2011 when [the applicant was] 28 years of age.
On the first occasion, Anastasia was 15 years of age when she was asleep in her bedroom. She woke to find [the applicant] on top of her. [He] pulled back her doona and straddled her by sitting on her crotch. When she woke, Anastasia saw that [he was] placing a condom onto [his] erect penis. Without saying anything, [he] removed her shorts and underpants. [He] then placed [his] penis into her vagina and penetrated her until [he] ejaculated. After [he] had ejaculated, [he] heard a car pull up into the driveway and [he] jumped up and ran out of her room.
The second occasion after the offence described above, Anastasia and [the applicant] were home while Danielle was in the bathroom bleaching her hair. [He] grabbed her by the arms and lowered her onto the floor. As Anastasia was laying on her back, she anticipated that [he was] going to sexually penetrate her and told [him] not to because she was having her period and using a tampon.
Nonetheless, [the applicant] removed her pants and underwear and lay on top of her. [He] then placed [his] penis into her vagina. She felt pain. [His] penis pushed the tampon deeper into her vagina. She told [him] to stop but [he] told her to shut up so that Danielle would not hear her and [he] continued to penetrate her until [he] ejaculated.
Over the next few weeks, [the applicant] sexually penetrated Anastasia on a number of occasions when Danielle was not at home. [On a] third occasion, between 1 March 2011 and 31 March 2011, Anastasia accompanied [him] when [he was] working as a DJ at a function. [They] left the function about 11 pm. [He] drove her to a location where [he] stopped at the side of the road near a cricket reserve. [He] told Anastasia to get out of the car and [they] walked across to the cricket training nets. [He] then took her by the arms and lay her on her back on one of the cricket pitches.
Anastasia told [the applicant] that her back was hurting because she was laying on concrete. [He] told that her ‘it won’t take long’. [He] then removed her pants and lay on top of her before [he] placed [his] penis into her vagina and penetrated her until [he] ejaculated. She sustained bruising to her back as a result of [him] laying on top of her on the concrete cricket pitch. She did not tell Danielle or anyone about what had taken place.
On a fourth occasion, Anastasia again accompanied [the applicant] when [he was] working as a DJ at another function. [They] left about midnight and [he] drove home. [He] stopped [his] vehicle next to a playground. [He] told her to get out of the car and [he] walked to the playground. [He] climbed some stairs to a platform by a slide. [He] told her to come up with [him].
Anastasia climbed onto the platform and [the applicant] pulled down [his] pants and exposed [his] erect penis. [He] told her to ‘give [him] head’. Anastasia refused because [they] were at a children’s playground. [He] grabbed her by the arms and pushed down onto her knees. [He] then grabbed her by the back of the head and forced [his] penis into her mouth. She tried to push [him] away but was unsuccessful because [he was] too strong. [He] penetrated her mouth for about a minute before [he] grabbed her by the arms and forced her to stand up.
[The applicant] then pulled down her pants and underpants, down to her ankles and turned her around so that she was facing away from [him]. [He] then penetrated her vagina with [his] penis for a few minutes. When [he] stopped, [he] turned her around to face [him]. [He] then took her by the arms and lay her on her back on the platform. [He] got on top of her and penetrated her vagina with [his] penis. [He] continued to penetrate her for a few minutes. [He] then stood up and masturbated in front of her until [he] ejaculated on the playground slide.[10]
[10]Sentencing remarks [17]–[42] (emphasis added).
Charges 6 and 7 are rolled up charges, as they involved two acts of sexual penetration (oral and vaginal) against each of Danielle and Kiki.
On 4 March 2016, Danielle provided a statement to police. As a result of that statement, police also obtained statements from Alexandra, Kiki and Jaqueline. On 11 July 2018, the applicant was arrested and interviewed by police. On 16 February 2019, Anastasia approached police. She provided a statement on 8 April 2019. The applicant was charged on 16 August 2019.
A committal mention was initially listed for 1 November 2019. It was adjourned to 10 January 2020 and subsequently adjourned again. A committal hearing was listed for 13 July 2020, but adjourned to 19 November 2020 due to the COVID-19 pandemic. The proceeding resolved by way of global plea on that date before any witnesses were cross-examined.
Applicant’s personal circumstances
The applicant was between 20 and 28 years of age at the time of the offending and 38 at the time of sentencing.
The applicant was born in Australia but moved to live in New Zealand when he was 7. At age 13, he returned to Australia and lived with a stepsister. At age 14, he moved to live with his mother, who had also returned to Australia, as well as other family members. When he was 20, he met Danielle and moved in to live with her and her mother.
The applicant was bullied at school and socially isolated. As a youth, he was involved with Scouts, Air Cadets and the Country Fire Authority (‘CFA’). His time with the CFA was marked by considerable trauma. When he was 15, his running coach, who was also a CFA member, died in the Linton bushfires and he felt this loss acutely. About two years later, he responded to a call about a smoke alarm and discovered a decaying body, which deeply affected him.
Since completing Year 12, the applicant has been consistently employed in various roles, including hospitality, driving and factory work. In 2004, he bought a disk jockey business and, in 2020, he started a mowing business with a partner.
The applicant’s first significant relationship was with Danielle. He was in another relationship from 2017 until 2020. The couple share a daughter who is 2 years old. His ex-partner remains supportive of him.
In 2002, when the applicant was 19, he was convicted of three charges of arson for which he received 2 years’ detention in a Youth Training Centre. In 2008, he was fined $800 for a theft.
Plea hearing
In written submissions filed for the plea hearing, defence counsel contended that the utilitarian benefit of the applicant’s guilty plea was particularly valuable given the impact that the COVID-19 pandemic has had on the court system. Counsel relied upon four Trial Division decisions rather than this Court’s decision in Worboyes v The Queen,[11] as that decision was handed down after the plea hearing but before the date of sentencing.
[11](2021) 96 MVR 344; [2021] VSCA 169 (‘Worboyes’).
In Worboyes, this Court stated as follows regarding the value of a guilty plea during the COVID-19 pandemic:
[W]e consider that — all other things being equal — a plea of guilty entered during the currency of the COVID-19 pandemic is worthy of greater weight in mitigation than a similar plea entered at a time when the community and the courts are not afflicted by the pandemic’s effects. A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence than at another time. Although a sentencing judge need not quantify the extent of any ‘discount’, he or she must ensure that the plea of guilty results in a perceptible amelioration of sentence.[12]
[12](2021) 96 MVR 344, 356–7 [39]; [2021] VSCA 169.
In oral submissions at the plea hearing, defence counsel added the following in relation to the utilitarian benefit of the applicant’s guilty plea during the pandemic:
It’s put that there is a significant utilitarian value to this plea and it’s particularly so in the context of COVID within our community and the impact that that has had on our court system and it has [caused] a significant backlog in cases and so, the authorities have recognised — these courts have recognised that there is an increased value to that plea.[13]
[13]Transcript of Proceedings (10 May 2021) 33.6–12.
At the plea hearing, the applicant relied upon a psychological report from Carla Lechner dated 18 April 2021 and an addendum dated 4 May 2021. Ms Lechner diagnosed the applicant with an adjustment disorder with depression and anxiety reactive to the break-up with his ex-partner in 2020 and the hearing of the current matters pending in the County Court. She assessed him as severely psychologically distressed, exhibiting extreme symptoms of depression and severe symptoms of anxiety. She said that he had experienced post-trauma symptoms as a result of the incidents during his membership of the CFA, but that those symptoms had dissipated. She reported that he stated that he felt suicidal most days but that thoughts of his daughter ‘stop [him]’.
Ms Lechner stated that the applicant had a tendency to minimise the extent of his sexual offending, including by stating that all of the sexual acts were consensual. She said that he appeared to have little insight into the impact of his behaviour upon his victims or the psychological control that he exerted by virtue of his age. She opined that he appeared to have had hebephilic sexual interests as a young adult which he found hard to accept, possibly due to a sense of shame. She said that his sexual interest appeared to have matured due to the lack of offending over the past 10 years. She assessed that he presented at a low to moderate risk of sexual reoffending.
Ms Lechner opined that the applicant’s mental health would decline further in a custodial setting and recommended that he be closely monitored as he may experience an increase in suicidal thoughts or attempt self-harm. She stated that, in the light of the nature of his offending, he may be subjected to intimidation and bullying in prison, which would increase his anxiety.
At the plea hearing, the prosecution tendered victim impact statements from Danielle and Anastasia.
In her victim impact statement, Danielle wrote that, at the age of 14, she was innocent, naive and living in dysfunctional family circumstances and that the applicant took advantage of her situation. She said that she has experienced guilt and remorse for having exposed some of her friends to his predatory conduct. She stated that, married at the age of 20, she felt subservient and lacked any independence. She wrote that she feels guilty and is burdened with self-doubt for having played a role in the abuse of Anastasia, who was in her care. She stated that the applicant’s offending has left her anxious, depressed and subject to post‑traumatic stress disorder, eating disorders, physical illness and panic attacks. She wrote that she distrusts people, has difficulty keeping constant employment and is hyper vigilant. She said that she feels worthless and her relationships suffer as a result.
In her victim impact statement, Anastasia wrote that, soon after her first incidence of abuse, she became depressed, experienced daily suicidal thoughts and started to self-harm. She stated that she was diagnosed with anxiety by age 16 and post-traumatic stress disorder by age 19, and also suffers from insomnia. She said that the applicant bullied her on days when she experienced symptoms of depression, and that he rarely allowed her to attend school or see her family and did not allow her to have friends. She wrote that she struggles with her self-image, which has affected her ability to keep jobs for any significant period and persist with her nursing studies. She stated that she is hyper vigilant, distrustful of others and often struggles to leave her house unaccompanied.
Sentencing remarks
The judge stated that the offending comprised exploitation by subordination of children to gratify the applicant’s perverted indulgences. He held that, although the offending may not have been committed after long meditation or reflection, it was neither spontaneous nor unthinking, but contumacious and controlled. He said that the offending may not have contained frank threats or weapons, but this type of offending is inherently violent and, in the context of the relationships involved, consequent of power imbalance.
The judge found that the applicant’s offending against Anastasia, particularly the occasions at the cricket pitch and the playground, were egregious examples of exploitative, degrading, physically hurtful and depraved behaviour for the applicant’s own sexual gratification. He said that it appeared that the applicant’s persistent sexual abuse of Anastasia occurred in an atmosphere of coercive control which diminished her life and enjoyment of life as a child, and enabled his persistent offending against a vulnerable child.
The judge found that the applicant’s moral culpability in respect of charge 10 was ‘of the highest order’[14] because of the following features:
(a)The offending involved a gross breach of trust, as Anastasia was effectively in the care of the applicant.
(b)There was a more serious disparity in the applicant’s age with Anastasia than with the other victims.
(c)The applicant did not use a condom during the commission of some of the offences.
(d)The first occasion commenced when Anastasia was asleep in her bed.
(e)The second occasion occurred when Anastasia had a tampon in place, which the applicant pushed deeper into her, causing pain.
(f)The repetition of the abuse heightened Anastasia’s fear that abuse would occur again and increased the damage which she suffered, which was likely to have made the applicant progressively more aware of the effect the abuse was having upon her.
[14]Sentencing remarks [63].
The judge held that the offending the subject of charges 2 to 9, which involved sexual contact with Danielle as a child and enabling others to participate in sexual intimacy with her, involved a breach of trust and spoke of the corrupt use of the applicant’s prepotence over her. In relation to those charges, the judge said that he took into account the period of the offending, the fact that there were four victims and the disparity of the applicant’s age with his victims.
The judge remarked that sexual offences are essentially crimes of violence that cause irreparable, severe and long-lasting physical and psychological harm to victims, as occurred in the present case. He said that the prohibition against sexual penetration of a child under 16 was founded on the presumption that such premature sexual activity will cause long-term physical and psychological harm and is unaffected by the presence of apparent consent.
The judge stated that the applicant pleaded guilty ‘at a relatively early stage’ and that this plea had a utilitarian value.[15] That was said to be because it avoided a criminal trial, which spared the victims from the ordeal of having to give evidence and saved the time and resources of the court. He said that the plea reflected ‘only the inception of remorse’ due to the applicant’s low level of insight into the impact of his behaviour and his lack of awareness as to his culpability.[16]
[15]Sentencing remarks [65].
[16]Sentencing remarks [67].
The judge remarked as follows with respect to the value of the applicant pleading guilty during the COVID-19 pandemic:
The plea also has an added value at a time of recurrent pandemic in our community which has rendered problematic and difficult the delivery of justice through the criminal justice system and correctional services during this period.
There must be a recognition by way of amelioration of sentence that a plea has added value at this particular time which facilitates the course of justice. This aspect will also impact on the way the term of reclusion is served in prison at a time of frequent lockdowns, restrictions on daily movement, access to visits, to programs and to other contacts all of which add to the burden of incarceration. … I take this value and this aspect into account.[17]
[17]Sentencing remarks [67]–[68].
The judge noted that the applicant was a youthful offender in relation to charges 2 to 9. He said that he could not place significant weight upon the applicant having matured or rehabilitated in the intervening period, but that some moderation in sentence was nevertheless merited.
The judge noted that the applicant was charged in August 2019, 13 months after his interview in July 2018. He also noted that the committal was abnormally delayed by the pandemic. He remarked that the applicant had spent a substantial amount of time ‘with a Damocles sword hanging over [his] head’, which had an inherently punitive effect.[18] He said that the most practical effect of the delay was that, in relation to charges 2 to 9 which the applicant committed as a young offender, the applicant would now be sentenced as an adult.
[18]Sentencing remarks [91].
The judge accepted that the fifth and sixth limbs of R v Verdins[19] were enlivened, in that the applicant would find prison more burdensome by virtue of his situational depression and anxiety. The judge found that moderate mitigation to the applicant’s sentence was warranted because, in the face of years of imprisonment, these disorders are not unusual nor of a class which approximates the effects of a serious mental illness or a personality disorder.
[19](2007) 16 VR 269, 276 [32] (‘Verdins’).
The judge assessed the applicant’s prospects of rehabilitation as reasonable.
The judge held that general deterrence was the paramount sentencing consideration and that, whilst specific deterrence was also relevant, it could be reasonably moderated. He stated that the applicant’s conduct must also be adequately denounced and just punishment applied. He said that, because the applicant was to be sentenced as a serious sexual offender on charges 4 to 10, community protection was the principal sentencing purpose on those charges by reason of s 6D of the Sentencing Act 1991.
The judge stated that the sentences for charges 2 to 9 deserved partial cumulation upon the base sentence imposed for charge 10, in recognition of the discrete offences against different victims and the proper application of the principles of totality and proportionality.
Parties’ submissions
The applicant submitted that the sentence of 7 years and 6 months for charge 10 fell outside the sentencing range available to the judge, in the light of the following matters:
(a)The applicant pleaded guilty ‘at a relatively early stage’. This spared his victims the ordeal of having to be cross-examined, which was particularly important as they were children at the time of the offending.
(b)The applicant pleaded guilty during the pandemic. Whilst the judge alluded to Worboyes in his sentencing remarks, a review of comparative cases does not disclose a perceptible amelioration of sentence.
(c)There was considerable delay in this matter. The applicant was interviewed by police on 11 July 2018, but was not charged until 13 months later. The committal was further delayed as a consequence of the pandemic.
(d)The applicant’s criminal history is limited, aged and of a wholly different character.
(e)The applicant’s personal circumstances.
With respect to item (b) above, the applicant relied upon three cases which were said to be comparable.
The first case is Director of Public Prosecutions v Meharry.[20] In that case, the offender had pleaded guilty to 67 charges involving 22 victims aged between 11 and 17. He was sentenced to a total effective sentence of 12 years with a non-parole period of 10 years. At the time of the offending, he was aged between 18 and 26. He had a relevant criminal history. On appeal against sentence by each of the State and Commonwealth Directors of Public Prosecutions, he was resentenced to a total effective sentence of 22 years with a non-parole period of 18 years.
[20][2017] VSCA 387 (‘Meharry’).
In respect of the charge of persistent sexual abuse of a child under 16, the offending in Meharry took place over a period of 10 months and related to 32 separate occasions. The victim was aged between 14 and 15. The sexual activity that constituted the charge comprised the insertion of the offender’s penis, finger and a hairbrush into her vagina and also directing her to hold his penis. He did not wear a condom and ejaculated inside her vagina. The victim subsequently suffered a miscarriage. At first instance, he was sentenced to 5 years’ imprisonment for this charge, which was the base sentence for the State offences. On appeal, he was resentenced for that charge to 8 years’ imprisonment.
The second case is Talbot v The Queen.[21] In that case, the offender had pleaded guilty to two charges of persistent sexual abuse of a child under 16 and two charges of incest. The victims were his two stepdaughters who were aged between 11 or 12 and 18 at the time of the offending (each charge of incest related to the period after the relevant victim’s 16th birthday). The offender was aged between 29 and 35 at the time of the offending. The offending was protracted and, in respect of one victim, involved the provision of drugs and resulted in her becoming pregnant before the offender organised the termination of the pregnancy. He was sentenced to 9 years’ imprisonment for each of the persistent sexual abuse charges and 3 years’ imprisonment for each of the incest charges. His total effective sentence was 15 years’ imprisonment with a non-parole period of 10 years. On appeal, this sentence was held to be within range.
[21][2016] VSCA 218 (‘Talbot’).
The third case is Bussell v The Queen.[22] In that case, the offender pleaded guilty to one charge of persistent sexual abuse of a child under 16 and one charge of incest. The victim was the offender’s daughter, who was between 7 and 16 years of age at the time of the offending. The offender was aged between 26 and 35 during this period. The charge of incest related to two incidents after the victim’s 16th birthday. The persistent sexual abuse included sexual intercourse on multiple occasions and there were aspects of violence. The offender was sentenced at first instance to 9 years’ imprisonment on the charge of persistent sexual abuse and 6 years’ imprisonment on the charge of incest. His total effective sentence was 12 years’ imprisonment with a non-parole period of 9 years. On appeal, this sentence was held to be within range.
[22][2014] VSCA 310 (‘Bussell’).
The Crown submitted that, having regard to all the circumstances, the sentence imposed on charge 10 was within the permissible range available to the judge, and arguably moderate. It contended that each of the matters said to indicate manifest excess was taken into account by the judge. According to the Crown, there is nothing in the careful sentencing remarks to suggest that the weight given to any of the factors in question was cursory or inadequate.
The Crown contended that limited weight could be placed upon subjective factors in assessing the discount to be allowed for the applicant’s guilty plea. That was said to be because the applicant had a low level of insight into his offending and displayed ‘only the inception of remorse’.
The Crown argued there were obvious differences between the current offending and the offending in the three cases relied upon by the applicant in relation to the weight to be given to his guilty plea during the pandemic. That was said to be because Bussell and Talbot concerned long-standing familial relationships between the offenders and their victims, and Meharry involved a large number of charges, a complex sentencing task and moderation of the base sentence having regard to totality.
In any event, the Crown submitted that the current offending was not significantly less serious than the persistent sexual abuse charges dealt with in Bussell, Talbot and Meharry for the following reasons:
(a)Anastasia was plainly vulnerable, being aged 14 and homeless. As she was effectively in the applicant’s care when he sexually abused her, the offending represented a gross breach of trust.
(b)The age difference between the applicant and Anastasia was 12 to 13 years, which was much more significant than the differential between him and his other victims.
(c)As he was aged 27 to 28 at the time of the offending the subject of charge 10, the applicant could not rely upon the mitigating effect of youth in relation to that charge, as he could in relation to the other charges.
(d)The applicant’s moral culpability in relation to charge 10 was ‘of the highest order’ as many aggravating features were present, including the fact that he continued to offend in the face of Anastasia’s protests and did not use a condom during three of the instances of offending.
(e)The applicant was sentenced as a serious sexual offender for charge 10, in circumstances where the overall offending occurred over more than eight years and involved five victims, all of whom were vulnerable and subjected to a degree of grooming by the applicant. Accordingly, community protection was a significant sentencing principle.
(f)Although there is a presumption of harm in all cases of child sexual abuse, the specific impact upon Anastasia was severe.
(g)Charge 10, by both its nature and its commission over a 10-month period, involved a level of persistence.
The Crown contended that the delay in the present case was not inordinate for two reasons. First, part of the delay appears to have arisen as a consequence of Anastasia first reporting the offending against her after the applicant had already been interviewed in relation to the other offending. Secondly, part of the delay was caused by a four month adjournment of the committal hearing due to the pandemic.
The Crown argued that, notwithstanding the absence of prior sexual offending convictions and the effluxion in time between the last offending and sentence, specific deterrence remained a relevant sentencing principle having regard to the sustained nature of the offending, the applicant’s lack of insight and the low to moderate risk of reoffending.
Decision
In my opinion, the proposed ground of appeal is not reasonably arguable and therefore leave to appeal will be refused.
The sentence of 7 years and 6 months’ imprisonment for charge 10 was entirely appropriate having regard to the gravity of the offending and the applicant’s moral culpability, and allowing for the mitigating factors upon which the applicant was entitled to rely.
The offending the subject of charge 10 was particularly grave having regard to its circumstances, including the following:
(a) The offending persisted for nine to 10 months.
(b)The offending commenced when Anastasia was a 15 year old vulnerable child who had been homeless prior to moving in with the applicant.
(c)The offending continued while Anastasia lived with the applicant and was effectively in his care. Instead of keeping her safe in his home, he used her to satisfy his own sexual desires in total disregard for her physical and emotional wellbeing. His breach of trust was grievous.
(d)The first occasion of sexual penetration commenced when Anastasia was asleep.
(e)The second occasion of sexual penetration took place despite Anastasia’s protests and caused her pain because she was wearing a tampon.
(f)The third occasion of sexual penetration caused pain and bruising to Anastasia because she was lying on a concrete cricket pitch.
(g)The fourth occasion of sexual penetration, at the playground, involved forceful and humiliating treatment of Anastasia.
(h)The applicant did not wear a condom during the last three instances of offending.
(i)The offending caused serious long-term harm to Anastasia.
The judge was entirely justified in describing the four instances of offending as egregious examples of exploitative, degrading, physically hurtful and depraved behaviour for the applicant’s own sexual gratification, which occurred in an atmosphere of coercive control.[23]
[23]See [31] above.
The judge was also entirely justified in finding that the applicant’s moral culpability in respect of the offending the subject of charge 10 was ‘of the highest order’ for the reasons that he gave, as summarised at [32] above.
In my opinion, the judge gave appropriate weight to the mitigating factors upon which the applicant was entitled to rely, including his guilty plea, the fifth and sixth limbs of Verdins, delay and his reasonable prospects of rehabilitation.
In relation to the utilitarian benefit of the applicant’s guilty plea during the pandemic, although the judge did not expressly refer to Worboyes, his remarks on this issue, as set out at [36] above, are consistent with the observations in Worboyes, as set out at [22] above. I reject the applicant’s contention that the judge failed to give adequate weight to the enhanced utilitarian benefit of his guilty plea during the pandemic.
The three decisions upon which the applicant relied — Bussell, Talbot and Meharry — do not provide any support for his contention that the sentence for charge 10 is manifestly excessive. Whilst so-called comparable cases can be treated as yardsticks which can assist in identifying the relevant sentencing range, they are not to be treated as precedents to be applied or distinguished.[24] They certainly do not establish an upper limit for the available range.
[24]Kelly v The Queen [2020] VSCA 171, [52]; Cooper v The Queen [2020] VSCA 288, [77]; Zorkau v The Queen [2021] VSCA 184, [48].
There are important differences between the present case and the three decisions upon which the applicant relied. The three decisions were published well before the pandemic and therefore the amelioration in sentence arising from guilty pleas that was applied in those cases was not informed by the considerations set out in Worboyes. However, a comparison of the sentencing remarks in those cases with those in the present case provides no basis for doubting that the judge in the present case ameliorated the sentence for charge 10 to a pronounced or perceptible degree due to the impact of the pandemic.
The issue of remorse was not a strong factor in the applicant’s favour, as the judge found that his guilty plea reflected ‘only the inception of remorse’ due to the applicant’s low level of insight into the impact of his behaviour and his lack of awareness as to his culpability.
General deterrence was a significant sentencing consideration. Specific deterrence and protection of the community were also important in light of the low to moderate risk that the applicant would reoffend. Indeed, pursuant to s 6D of the Sentencing Act, protection of the community from the applicant was the primary purpose in sentencing him for charge 10, as he was sentenced for that charge as a serious sexual offender.
Having regard to all of the above considerations, a sentence of 7 years and 6 months’ imprisonment for an offence for which the maximum penalty is 25 years’ imprisonment cannot sensibly be described as wholly outside the range of sentences available to the judge.
For the above reasons, it is not reasonably arguable that the sentence for charge 10 is manifestly excessive or that it was productive of a manifestly excessive total effective sentence or non-parole period.
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