Pettiford v The Queen
[2011] VSCA 96
•11 April 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 634 of 2009
| SHAUN MATTHEW PETTIFORD |
| v |
| THE QUEEN |
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| JUDGES | NEAVE, MANDIE and TATE JJA |
| WHERE HELD | Melbourne |
| DATE OF HEARING | 7 March 2011 |
| DATE OF JUDGMENT | 11 April 2011 |
| MEDIUM NEUTRAL CITATION | [2011] VSCA 96 |
| JUDGMENT APPEALED FROM | R v Pettiford (Unreported, County Court of Victoria, Judge Hampel, 12 May 2009) |
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CRIMINAL LAW – Sentence – Appellant pleaded guilty to three counts of sexual penetration of a child under 10 and a count of indecent act with a child under 16 – Borderline intellect and other mental impairments – Failure to establish causal connection with offending – Romero v The Queen [2011] VSCA 45, applied – Appellant’s youth at time of offending – Not inappropriate to refer to denial of offending as a cause of approximate 13 year delay between offending and imposition of sentence – R v Nikodjevic [2004] VSCA 222, applied – Sentences manifestly excessive – Youth at time of offending – Absence of subsequent offending during lengthy period of delay bore favourably on prospects of rehabilitation – Increased burden of imprisonment because of low intelligence and other mental impairments – Guilty plea – Appeal allowed – Appellant re-sentenced.
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| Appearances: | Counsel | Solicitors |
| For the Appellant | Mr T Kassimatis | Vivien Mavropoulos & Associates |
| For the Crown | Mr S M Cooper | Mr C Hyland, Solicitor for Public Prosecutions |
NEAVE JA:
The appellant, Shaun Matthew Pettiford, pleaded guilty to three counts of sexual penetration of a child under 16 and one count of indecent act with a child under 16. After hearing a plea in mitigation of sentence, the learned sentencing judge sentenced him as follows:
Count
Offence
Maximum
Sentence
Cumulation
1
Sexual penetration of a child under 10[1]
20 years’ imprisonment[2]
4 years’ imprisonment
Base sentence
2
Sexual penetration of a child under 10[3]
20 years’ imprisonment
2 and a half years’ imprisonment
1 year
3
Sexual penetration of a child under 10[4]
20 years’ imprisonment
18 months’ imprisonment
4
Indecent act with a child under 16[5]
10 years’ imprisonment
2 years’ imprisonment
1 year
[1]Contrary to Crimes Act 1958, s 45(1).
[2]This was the maximum when the offences were committed. It was increased to 25 years’ imprisonment by the Sentencing and Other Acts (Amendment) Act 1997, s 60, sch 1.
[3]Contrary to Crimes Act 1958, s 45(1).
[4]Contrary to Crimes Act 1958, s 45(1).
[5]Contrary to Crimes Act 1958, s 47(1).
This amounted to a total effective sentence of 6 years’ imprisonment. The judge directed that the appellant serve a period of 3 years before being eligible for parole.
On 5 March 2010, leave was granted to the appellant to appeal against sentence, on the basis that it was ‘reasonably arguable that her Honour did not take sufficient account of the fact that by reason of the applicant’s low intellect and psychiatric condition, gaol would be more burdensome to him than to a person not suffering from those problems’. Although leave was granted on the basis that only that ground was reasonably arguable, it remained open to the appellant to pursue the other grounds of appeal.[6]
[6]Supreme Court (Criminal Procedure) Rules 2008, r 2.09(2)(4).
Background
The offences were committed against three victims between 1993 and 1994.[7]
[7]Although the dates on the presentment ranged from 27 October 1992 to 28 December 1997, the judge said (at [2]) that it was ‘accepted in the course of the plea before me that all the offences occurred between about 1993 and 1994’.
Count 1 is a rolled up count covering five separate acts of sexual penetration committed against a child L, who was aged between 9 and 10. The judge said that, on the last two occasions, the appellant was aged ‘between 16 and 17 or maybe as old as 18’.[8] The complainant and her sister, the victim of counts 2 and 3, lived with their parents in a house opposite the appellant’s home. The appellant was friends with the victims’ older brother and paid regular visits to their house. Each of the acts covered by count 1 involved the appellant licking the victim’s vagina and penetrating it with his tongue. On one occasion, he exposed his penis to her and masturbated.
[8]R v Pettiford (Unreported, County Court of Victoria, Judge Hampel, 12 May 2009) (‘Reasons’), [6]. According to the dates on the presentment, the appellant was aged between just under 16 and just under 17 years.
Count 2, also a rolled up count, covered two acts of sexual penetration of the victim, D, then aged seven, which were said to have occurred when the appellant was 17.[9] On the first occasion, the appellant put his penis in the victim’s mouth before pushing her head back and forth. On the second occasion, he made her masturbate him before this occurred.
[9]Ibid [8]. According to the dates on the presentment, the appellant was aged between 17 and 20 years.
Count 3 involved the same victim as count 2. The appellant penetrated the victim’s vagina with his tongue and also touched and fondled her vagina with his fingers. The appellant was then 17 years or older.[10]
[10]According to the dates on the presentment, the appellant was aged between 17 and 20 years when committing the offence.
Count 4, another rolled up count, covered two incidents in which the appellant rubbed the victim’s vagina over her clothes. The victim was the appellant’s second cousin and was then aged between six and eight years old. The appellant, who was then aged about 17,[11] was living with the victim and her parents at the time of the offences.
[11]Reasons, [10]. According to the dates on the presentment, the appellant was aged between 15 and 17 years.
The appellant was interviewed by police in relation to the incidents on 22 May 2007 and declined to answer questions. After a contested committal, at which the three victims were cross-examined, and the setting down of a trial date, the appellant pleaded guilty.
In her sentencing reasons, the judge extracted passages from the victims’ victim impact statements.[12] Each of them spoke of their fear, shame and sense of powerlessness while they were being abused and of the continuing consequences of the offending on their lives as adults.
[12]Ibid [16]-[20].
At the date of sentencing, the appellant was aged 32. He had no prior convictions, but had been convicted of other sexual offences in 1996. Because the details of these offences were not provided to the Court, they are described by reference to the judge’s reasons.
In 1996, when the appellant was about 19, he was presented in the Magistrates’ Court on two charges of indecent act with a child under 16.[13] The victim was a 12 year old boy. The appellant initially told the psychologists who conducted his pre-sentence assessment in the present case that all he had done was allow the boy to watch a pornographic video. He later admitted to them that he and the boy had engaged in mutual masturbation.
[13]Ibid [27]. The appellant’s age when committing these offences is unknown. The offences were not not admitted or proved as relevant prior convictions but may have, according to the dates on the presentment, been committed during the period in which counts 2 and 3 were committed: see footnotes 9 and 10 above.
The other convictions were described by the judge as follows:
Those subsequent offences include convictions for dishonesty and violence, driving offences at the serious end of the spectrum, including refuse a breath test and drive [sic] whilst disqualified, as well as some street offences and alcohol-related offences. In addition, you were dealt with for breaching the community-based order that had been imposed upon you in respect of the sexual offences against the 12 year old boy, and more recently, in 2008, you were dealt with for failing to answer bail. These matters are relevant to your prospects of reoffending in a more general sense, to your prospects for rehabilitation, and to the weight to be given to specific deterrence.[14]
[14]Ibid [30].
The appellant’s father was violent to his wife and children, and his parents separated when he was about 14. He was introduced to drugs in early adolescence by the father of one of his victims, who injected him with various substances. The appellant was educated to year 9 and though he had some periods of employment, he has had significant periods out of work. In 2002, he obtained employment with Toyota in a role he was said to have enjoyed considerably. Unfortunately, he sustained an injury at work shortly afterwards and ceased employment. He suffered from depression as a consequence and has been in receipt of a disability support pension since 2004.
For the eight year period before being sentenced, the appellant lived with his fiancée and three children (aged 10, 6 and 4 at the date of sentencing) for a part of each week and with his mother for the rest of the week. He received loving support from his family, who attended court during the plea hearing.
His mental state was assessed by Mr Jeffrey Cummins, a consulting, clinical and forensic psychologist, on 17 February 2009. As the judge noted,[15] tests administered by Mr Cummins revealed a ‘Full Scale IQ of 75, which places him in the middle of the borderline range, whereby 94% of his peers would obtain a higher Full Scale score than he obtained’. Mr Cummins said that:
he is functioning at a very low level in a cognitive sense, however he does present with the sort of personality whereby he consciously or unconsciously gives the impression he is more knowledgeable and more adept at reasoning and processing information than is actually the situation. In the course of completing the IQ testing it was apparent he had significant concentration and attention difficulties.
[15]Ibid [32].
Mr Cummins also gave evidence at the plea hearing.[16] He said that:
[16]Ibid [46].
On the basis of my initial assessment of him, I formed the opinion he was someone who had a dependent and most probably inadequate personality style. I did not form the view that he had an anti-social personality disorder. I thought he could have a dependent personality disorder when I initially saw him, he was quite defensive, at times somewhat paranoid with his presentation, he became quite agitated. In subsequent sessions he has settled down. In my view he has come to trust me …
In an overall sense I assess him as currently having an adjustment disorder, anxiety and depression, and in my view there’s still some disorder of conduct but from what I can ascertain his disorder of conduct is much less now than it would have been some years ago.
As to the length of time during which he had been suffering from an adjustment disorder, Mr Cummins said:
In terms of the adjustment disorder it’s quite apparent from all of the WorkCover documents, Your Honour, he was assessed with that condition by Dr Cornan in November of 2005. At that time he was specifically assessed with an adjustment disorder with anxiety and depression and that was referred to in a report dated 3 December 2005.
He also said that the appellant is ‘certainly at a level of maturity significantly below his chronological age [and that], in some respect, [his] level of maturity would be more characteristic of that of someone in his late teenage years, perhaps his early 20s, [and that he] does have a very dependent personality style’. Mr Cummins was told by the appellant that he had been prescribed Efexor, an anti-depressant, and Xanax, anti‑anxiety medication, and that he was continuing to use about one gram of cannabis a day, although he had stopped using amphetamines.
Defence counsel asked Mr Cummins how the appellant was likely to respond to imprisonment. Mr Cummins said that
his psychological state in my view is fragile. It is precarious and I would expect that he would not cope well, that his mental state would deteriorate and that he would draw negative attention to himself. He does become defensive very readily …
Mr Cummins also gave evidence at the plea as to the appellant’s risk of re‑offending. This was summarised by the judge as follows:
Despite your refusal to discuss the offending, and therefore the absence of evidence from you as to your stated reasons for doing so, the absence of any evidence as to whether you were then, or still are, sexually attracted to or aroused by children, [Mr Cummins] considered that you were at low risk of reoffending. His opinion was based on his clinical experience, the absence of like offending over the intervening 12 or so years, your remorse and the significance of your relationship with your fiancée. This relationship he said was significant, both in emotional terms and in providing sexual expression for you.
In cross-examination about the risk of reoffending factors, he said that the remorse that you expressed was for yourself and for your own family, that is, for your fiancée, your children and your mother. He agreed that the refusal to discuss the offending indicated that you were in denial and that that was relevant to the risk or the level of risk of reoffending. He said that such denial was not uncommon in sex offenders. In his opinion, participation in a sex offender treatment programme was an important part of assisting your rehabilitation, and also obviously important in terms of protection of the community. He took into account your stated of [sic] preparedness to participate in such a program in making his risk assessment. He agreed that you would become a much more vulnerable person if the relationship with your fiancée broke down and that that may have a bearing on your likely recidivism, but he did not consider that it was likely that the relationship would break down.[17]
[17]Ibid [50]-[51].
At the conclusion of Mr Cummins’ evidence, the judge expressed concern about the appellant’s likelihood of re-offending. After this matter was discussed with counsel, the appellant agreed to a pre-sentence assessment of his risk of re‑offending by the Specialist Sex Offender Program Unit.[18] Dr Lauren Gradstein and Mr Simon Candlish, the psychologists who prepared the pre-sentence report, assessed the appellant as being at higher risk of re-offending than Mr Cummins. The judge described their findings as follows:
On some of those assessments, you were rated as a moderate risk of reoffending. On others, you were rated as having a high risk. Where clinical judgment, as well as reference to statistical probabilities was applied, you were assessed as being at moderate risk of reoffending.
Specifically, on what is called the dynamic risk assessment, you were placed in the moderate risk category. When that result was combined with the original static risk assessment, the statistical analysis required to combine those resulted in you being placed in the high risk category. Dr Gradstein, in the report, identified a number of factors which were relevant to your current, or acute risk factors. They were your access to children of the age of your victims, that is, your current access to children who are now at the age your victims then were, your limited social networks which rendered you more vulnerable if they collapsed and you were left without their support, and your continued substance abuse.[19]
[18]Ibid [54].
[19]Ibid [58]-[59].
As a consequence of this assessment, Mr Cummins was called to give further evidence. He maintained his previously expressed view that the appellant was at a low risk of re‑offending.
In her reasons, the judge set out the areas in which Mr Cummins and Dr Gradstein and Mr Candlish were in agreement, and the matters about which they disagreed,[20] before concluding that the differences were ‘more of degree than substance’. She continued:
What was important, in my view, was that no meaningful opinion could be expressed about whether you are sexually attracted to children, or you are likely, if without an age appropriate partner with whom you have a satisfactory sexual and other relationship, to take advantage of children to whom you have access. No opinion can be expressed about that because you are in denial about the reasons for offending and will not discuss the offences. That factor alone, in my view, leads to your being more than a low level of risk of reoffending, and to my considering that there is a need to impose a sentence which, whilst encouraging your rehabilitation, gives weight to specific deterrence.[21]
[20]Ibid [63]-[65].
[21]Ibid [66].
The grounds of appeal
The first two grounds of appeal, which are set out below, alleged specific error. At the hearing of the appeal, the appellant was given leave to amend the grounds to allege that the individual sentences and total effective sentence were manifestly excessive.
Ground 1
This ground was as follows:
1.The learned sentencing judge erred by failing properly or adequately to synthesize, and weigh in mitigation of sentence, the appellant’s:
(a)borderline intellect; and
(b)diagnosed adjustment, depressive and anxiety disorders,
PARTICULARS
(i)failure properly or at all to reduce the applicant’s moral culpability;
(ii)failure properly or at all to temper the relevance of denunciation;
(iii)failure properly or at all to temper the relevance of general and specific deterrence; and
(iv)failure properly or at all to synthesize that gaol would, by reason of the applicant’s intellect and psychiatric conditions, weigh more heavily on him.
Counsel for the appellant conceded that there was considerable discussion between the sentencing judge and counsel about the application of the sentencing principles in R v Verdins[22] to the circumstances of the offender. Nevertheless, he submitted that her Honour’s reasons revealed that she had not had sufficient regard to Verdins principles in sentencing the appellant. The appellant’s borderline intellectual capacity and adjustment, depressive and anxiety disorders (which I will describe below as his ‘other mental impairments’) were said to have required the judge to find that his moral culpability for the offending was reduced and to moderate the principles of general and specific deterrence.[23] Counsel also submitted that the judge had failed to take account of the evidence of Mr Cummins, which indicated that the appellant’s borderline intellectual capacity and other mental impairments would make gaol more burdensome for him than for prisoners who did not have such conditions.
[22](2007) 16 VR 269 (‘Verdins’). The ways in which it may do so are discussed at 275 [26].
[23]R v McIntosh [2008] VSCA 242.
In reply, counsel for the Crown submitted that, during the plea hearing, it had been conceded that the offender’s moral culpability was not reduced by his borderline intellectual disability or other mental impairments.
He further submitted that there had been discussion of the application of other aspects of Verdins during the plea hearing and her Honour had made detailed reference to Mr Cummins’ evidence in her reasons, and had ordered a pre-sentence report. When her Honour’s reasons were read as a whole, it was apparent that her Honour had taken account of the appellant’s low IQ and his other mental impairments to the extent that they were relevant under Verdins’ principles.[24] The judge’s failure to specifically mention the difficulty the appellant might have in gaol because of his borderline intellectual capacity did not mean that her Honour had overlooked this matter. The judge was not required to address every argument made on the plea in her reasons.[25]
[24]Reasons, [32], [46]-[47], [53].
[25]R v Koumis (2008) 18 VR 434, 439-40 [63] (Redlich, Kellam JJA and Osborn AJA).
Conclusion on ground 1
I deal first with the submission that her Honour failed to have regard to the first principle in Verdins,[26] which requires the sentencing judge to take account of the extent to which the offender’s impaired mental functioning reduces his moral culpability.
[26](2007) 16 VR 269.
An intellectual disability may reduce an offender’s culpability, by ‘impairing the offender’s ability to exercise appropriate judgment or to make calm and rational choices, and by disinhibiting the offender’.[27] Whether it is held to do so depends on the existence of evidence showing a link between the offending and the offender’s intellectual disability and/or other mental impairments. In my opinion, the learned sentencing judge did not err by failing to take account of the effect of the appellant’s various mental impairments on his moral culpability for offending. I take that view for three reasons.
[27]R v McIntosh (2008) 191 A Crim R 370, 384 [102] (Dodds-Streeton JA, Kellam JA and Hargrave AJA agreeing).
First, counsel for the offender at the plea hearing did not assert that there was any causal connection between the appellant’s offending and his borderline intellectual disability and other mental impairments. Her Honour told counsel that, on the basis of the evidence she had heard, there appeared to be no connection between the appellant’s adjustment disorder, or depression and the offending. Counsel did not dissent from this proposition. Nor did he submit that the appellant’s borderline intellectual capacity contributed to his offending or reduced his moral culpability.
In Romero v The Queen,[28] counsel for the offender at the plea hearing had conceded that, despite the appellant’s IQ being at the lower end of the borderline range, he could not rely the principles from R v Tsiaras[29] or Verdins.[30] One of the grounds of appeal against sentence was that ‘the plea and sentence had miscarried because no reliance was placed upon the principles in R v Verdins’. In rejecting this ground, the Court said that:
In sentencing appeals, this Court is reviewing the exercise of a discretionary judgment. It is not a rehearing of the plea in mitigation. It is not the occasion for the revision and reformulation of the case presented below. Given the nature of its supervisory role, this Court will not lightly entertain arguments that could have been, but were not advanced on the plea. It will have an even greater reluctance to entertain arguments that seek to resile from concessions made below or are a contradiction of the submissions previously made. The revivification of arguments abandoned or eschewed on the plea is highly undesirable and should not be countenanced, save where fresh evidence is adduced, or in the exceptional circumstance where it can be shown that there was most compelling material available on the plea that was not used or understood and which demonstrates that there has been a miscarriage of justice arising from the plea and sentence.[31]
It is now too late for the appellant to seek to raise this issue.
[28][2011] VSCA 45 (‘Romero’).
[29][1999] 1 VR 398.
[30](2007) 16 VR 269.
[31][2011] VSCA 45, [11] (Redlich JA, Buchanan and Mandie JJA agreeing).
Secondly, even if counsel for the appellant had not made such a concession, there was little, if any, evidence that the appellant’s borderline intellectual disability and other mental impairments had reduced his capacity to exercise judgment, disinhibited him, or had impaired his ability to appreciate that his conduct was wrong, or that there was any causal link between his mental impairments and his sexual offending. In effect, counsel for the appellant submitted that such a link should be inferred from the fact that the appellant had a low IQ.
In Romero,[32] Redlich JA emphasised the need to show a link between the disability and the offending:
It is now sufficiently well recognised in this Court that an intellectual disability may attract the principles in Verdins,[33] as impairment of mental function sensibly encompasses intellectual disability.[34] But as this Court has cautioned in Ashe v The Queen[35] and in Director of Public Prosecutions v Patterson,[36] it is always necessary to consider how the particular condition affected the mental functioning of the offender at the time of the offence, and how it is likely to affect him in the future. The question must always be whether, in the particular case, it has been shown that the offender’s moral culpability or the significance of general or specific deterrence is reduced because of the intellectual disablement. It must therefore be determined whether the applicant’s disablement had the effect, in the language of Verdins,[37] of impairing the offender’s ability to exercise appropriate judgment, or impairing the offender’s ability to make calm and rational choices, or to think clearly at the time of the offence.[38]
[32][2011] VSCA 45.
[33](2007) 16 VR 269.
[34]R v McIntosh (2008) 191 A Crim R 370, 381-4 [84]-[103] (Dodds-Streeton JA, Kellam JA and Hargrave AJA agreeing); DPP v Patterson [2009] VSCA 222, [43] (Maxwell P, Redlich JA and Vickery AJA agreeing); R v HJM [2009] VSCA 267.
[35][2010] VSCA 119, [14] (Neave, Redlich JJA and Coghlan AJA).
[36][2009] VSCA 222.
[37](2007) 16 VR 269.
[38][2011] VSCA 45, [13].
In my opinion, there was no evidence requiring her Honour to take that view. The appellant refused to tell Mr Cummins why he had offended and Mr Cummins was unable to determine whether he was sexually attracted to children or whether he was likely, without an age‑appropriate partner, to take advantage of children.[39] Mr Cummins’ evidence did not attribute the offending to the appellant’s borderline intellectual disability or other mental impairments, although he noted that the appellant was at a level of psychological maturity more characteristic of someone in his late teenage years and that he had a dependent personality style.
[39]Reasons, [66].
Since the appellant did not offend in company with any other person, his ‘dependent personality style’ cannot have been a causal factor in his offending. It would be speculative to conclude that his immaturity was attributable to his low intelligence, which in turn caused the offending. So far as his depression and anxiety were concerned, the evidence was that these conditions were a consequence of the appellant’s work accident, which occurred after he had committed the relevant offences.
Thirdly, I note that her Honour found that there was a ‘degree of planning’ in the offending and that the appellant ‘went to some lengths to conceal or hide the offending behaviour’.[40] This indicates that the appellant was aware that what he was doing was wrong. His denial of the conduct when first confronted with it in 1996 also supports that view.
[40]Ibid [24].
I would also reject the submission that her Honour wrongly failed to moderate the application of the principles of denunciation and general and specific deterrence in light of the appellant’s low intelligence or other mental impairments and that she failed to take account of the fact that prison would be more burdensome for him than for a person who did not have similar mental impairments (the third, fourth and fifth ways in which Verdins may be relevant in sentencing an offender with impaired mental functioning).
I note first that the submission that the judge should have given greater weight to the appellant’s low intelligence (and perhaps his other mental impairments) in considering the relevance of specific deterrence, was a double-edged sword. The existence of these impairments may well have increased the possibility of the appellant re-offending if he were deprived of social supports.
Further, discussion between the judge and counsel at the plea hearing makes it apparent that her Honour was acutely aware of the ways in which the appellant’s mental conditions might moderate general or specific deterrence or increase the burden which imprisonment would impose on the appellant. At an early stage in the plea hearing, her Honour said that:
Even if there’s not a causal connection between the depressive state and the offending, some of the Verdins principles in terms of whether there should be a moderation of deterrence in consideration of the type of sentence, the length of sentence and the manner in which it’s served, and the likely impact of a particular sentence on the condition - all seem in Verdins principles to have a likely role. Even if there’s not that causal connection and therefore the connection with effect on moral culpability.
At a later stage in the hearing, counsel for the appellant submitted that the appellant should receive a wholly suspended term of imprisonment or a community‑based order because Mr Cummins had given evidence that the appellant needed ongoing treatment for his fragile psychological state. This submission focused on the appellant’s depression, rather than on his borderline intellectual disability. Her Honour responded as follows:
There is a problem I’ve been pondering with this … and I understand it seems that the matter that seemed to be of most concern to Mr Cummins were [sic] the depression and associated symptoms and in terms of looking at his overall psychological or psychiatric state, that’s clearly a significant concern so if you look at his welfare then addressing that is clearly a need but in sentencing I’ve got to deal with the offences and the factors relevant to the offences.
Her Honour then noted that the depressive symptoms were unrelated to the offending and said:
Because there’s not a connection between the depression and the offending it doesn’t – the depression seems to me to fall more in that category of whether that influences the decision about imprisonment actually served or the length of time of imprisonment actually served if it gets to that. Rather than conditions relating to treatment for depression as part of overall sentence because that seems to be the therapeutic aspect rather than the related to risk of recidivism aspect.
Defence counsel’s response to this was that:
There is the adjustment disorder, there is the lack of an anti-social personality disorder, there is the dependence [sic] personality, there is the depression, there is the low intellect, there is the immaturity in terms of him, Mr Cummins forming the view that he is a person well, or many years below his biological age.
Counsel then referred to the fact that the appellant had not offended for the previous 13 years. Her Honour remarked that all of the above matters made the sentencing decision complex and said that
But none of those three things, not the adjustment disorder, not the depression or anxiety or not the drug use has a causal connection with the offending but they are all features that complicate his life at the moment.
…
So whilst they may be relevant to a decision about the type of sentence and the length of sentence, manner in which it will be served, those sort of things, I’m still saying I’ve got this concern about a caution that is not to use the sentencing processes of the court for treatment of conditions that are unrelated to the offending and maybe unrelated to the risk of re‑offending.
In her sentencing reasons, the judge set out Mr Cummins’ evidence about the appellant’s borderline intellectual disability and his other mental impairments. Later in her reasons, her Honour said that:
Having regard to your youth at the time, the absence of like offending in the intervening period, and the other matters I have already indicated I take into account in your favour, the actual sentence I impose is significantly moderated from the sentence I would otherwise have considered appropriate.[41] [emphasis added]
[41]Ibid [76].
In referring to ‘other matters’, it is clear that the judge was alluding to Mr Cummins’ evidence and the pre-sentence report. It would, perhaps, have been better for her Honour to have given a more detailed explanation of the way in which she had taken account of the Verdins principles which applied in sentencing the appellant. However, I consider that the sentencing reasons, read as a whole and in conjunction with the discussion at the plea hearing, make it clear that the sentence imposed on the appellant was ‘moderated’ because of the effect of his borderline intellectual disability and other mental impairments on general and specific deterrence and on the difficulties which he might experience in prison.
Ground 1 fails.
Ground 2
Ground 2 was as follows:
2.The learned sentencing judge erred by placing insufficient weight on, and failing to reflect in the disposition meted out, the fact that the applicant was, at the time he offended, at law a child.
PARTICULARS
(i)failure properly to have regard to the sentencing regime against which the applicant would have been sentenced but for the passage of time between his offending and his being dealt with;
(ii)failure properly or at all to synthesize the fact that the sentencing regime against which children were and are sentenced is absent the consideration of general deterrence.
(iii)erring by reducing the leniency the applicant was entitled to receive for his having offended whilst a child by reason of his having ‘contributed’ to the delay in his prosecution.
Counsel’s submissions
Counsel for the appellant submitted that the judge had given inadequate weight to the fact that the appellant was a young offender when he committed the offences and had failed to have regard to one or more of the following factors:
(a) the two year maximum term of detention to which he could have been sentenced by the Children’s Court if he had been dealt with soon after the offences were committed;[42]
[42]Children and Young Persons Act 1989, s 189(2) (detention in a youth training centre).
(b) the fact that any sentence of detention would have been served in a youth training centre, which would have been a less burdensome form of incarceration than imprisonment in an adult gaol; and
(c) the fact that general deterrence was an irrelevant (or at least a less relevant) consideration when sentencing a child.
Counsel for the appellant also submitted that her Honour should not have ‘tempered’ the disadvantages flowing from the fact that the appellant fell to be sentenced as an adult, rather than a young offender because, when the appellant was confronted with the allegations in 1996, he had vehemently denied them, thus preventing the offences being reported to the police and being investigated.
Counsel for the appellant said that there was no authority for the proposition that an offender’s denial of an offence could be taken into account in determining the weight to be given to delay and that her Honour’s reasoning was inconsistent with R v Cockerell[43] and R v Tiburcy.[44] He also submitted that the appellant’s borderline intellectual capacity made it wrong for her Honour to take account of the appellant’s denial of offending. Her Honour had also said that the delay was partly caused by the appellant’s choice of victim. It was submitted that such a finding was not open to the judge and, in any event, ought to have been given no weight in sentencing the appellant.
[43](2001) 126 A Crim R 444 (‘Cockerell’).
[44](2006) 166 A Crim R 291 (‘Tiburcy’).
In reply, counsel for the Crown submitted that the judge was mindful of the appellant’s age at the time of the offending and the disadvantages that flowed from being sentenced as an adult.[45]
[45]Reasons, [26], [40]-[42].
Counsel for the Crown distinguished the present case from R v Nutter[46] and R v Better,[47] in which the appellants had matured substantially since they had offended and had undertaken rehabilitation. The refusal by the appellant in this case to discuss the offending with health professionals was said to make any assessment of his rehabilitation difficult.
[46](Unreported, Court of Appeal, Charles, Callaway JJA and Vincent AJA, 8 November 1995).
[47][2003] VSCA 71.
Conclusion on ground 2
In R v PJB,[48] Nettle JA said that:
Decisions of this Court in R v Nutter and R v Better recognise that where offences which have been committed while an offender is a child or immature and are not prosecuted until many years after the event, there is good reason to mitigate penalty, or at least to do so where the offender has achieved a significant degree of rehabilitation and there has been no further offending. Although such an offender falls to be sentenced as an adult, common sense and fairness dictate that the assessment of the nature and gravity of the crime, and of the offender’s moral culpability, take into account that what was done was done as a child, or as a person of immature years, and not as an adult or a person of greater maturity. Counsel for the appellant is also correct that general deterrence ordinarily has a lesser role to play in the sentencing of children and immature young people than in the case of mature adults, and that it is significant that the appellant has not re-offended in more than 24 years.[49]
[48](2007) 17 VR 300; see also R v Angelopoulos [2005] VSCA 258, where the appellant committed sexual offences when he was 17 years and 11 months old and was sentenced when he was aged 18 years and 9 months. At the time he was sentenced, he did not fall within the definition of a child for the purposes of the Children and Young Person Act 1989, but if he had been sentenced very shortly afterwards, he would have come within the definition of a child and the Children’s Court would have had exclusive jurisdiction to deal with him. It was held that this should have been taken into account by the sentencing judge.
[49](2007) 17 VR 300, 304 [16] (Ashley and Dodds-Streeton agreeing) (citations omitted).
In the present case, there is some lack of clarity as to the appellant’s age at the time he committed the offences. If he were 17 or over at the time of offending (and had been sentenced after turning 18) he would have fallen outside the jurisdiction of the Children’s’ Court,[50] although his youth at the time of offending would have had some relevance to his sentencing as an adult. In relation to count 1, the judge said that the offender may have been as old as 18 when he offended. For the purposes of this appeal however, I assume that he would have been dealt with by the Children’s Court if the offences had been reported shortly after they were committed.
[50]Children and Young Persons Act 1989, ss 3, 16. ‘Child’, for present purposes, was then defined as ‘a person who at the time of the alleged commission of the offence was under the age of 17 years … but does not include any person who is of or above the age of 18 years at the time of being brought before the Court’. The definition in s 3 of the Children, Youth and Families Act 2005 now means, for present purposes, ‘a person who at the time of the alleged commission of the offence was under the age of 18 years … but does not include any person who is of or above the age of 19 years when a proceeding for the offence is commenced in the Court’.
Her Honour clearly took these matters into account. In her reasons, she first noted that:
You are now a few days short of 33 years of age. You were very young at the time. The offending commenced when you were only 16. Had the matter come to light and been dealt with then, you would have been able to be dealt with as a young offender.[51]
[51]Reasons, [26].
She later said that sentencing the appellant was complex because the offences occurred a long time ago and ‘because [the appellant] was so young at the time’.[52] She went on to say that:
The disadvantages flowing from the fact that you were not dealt with at the time, that is when, amongst other things, young persons' sentencing options would have been open, must be tempered by the fact that you contributed to the fact that these matters were not dealt with at the time. You were confronted in 1996 with allegations in relation to the sisters, and you vehemently denied any misconduct with them, saying that you had always been with the brother and never alone with them.[53] That, coupled with the combination of the fact that all three victims were so young, the age and power disparity between you and them, your relationship with their families and, in the case of the two sisters, the dysfunctional nature of their family life, were all such as to militate against these three young girls being able to protect themselves by initiating action which would result in police investigation. In some senses, your choice of victim and your denials when confronted in 1996 militated against early detection.
Having said that, your youth at the time clearly is a significant factor. It is clearly a significant factor in that the young do not have the same capacity for exercise of mature judgment, and therefore an assessment of moral culpability of the offending has to be seen in that sense. The moral culpability of a young offender is therefore generally less than that of a mature adult, and had you been dealt with as a young offender, you would have been entitled to have a greater emphasis placed on rehabilitation than generally is the case with older offenders.[54]
Her Honour also said that she had moderated the sentences imposed because of the appellant’s youth at the time of offending.
[52]Ibid [40].
[53]Ibid [41]-[42].
[54]Reasons, [41]-[42].
In my opinion, it was not inappropriate for her Honour to refer to the appellant’s denial of his offending as one of the reasons for the delay in the reporting of the offences and the prosecution of the appellant. Cockerell and Tiburcy are authority for the proposition that the Court must take account of delay between apprehension and sentence which is not caused by the fault of the offender, but are not directly relevant to the circumstances which arose in this case. As Ormiston JA said in R v Nikodjevic:[55]
one should be cautious about recognising the time between offending (as such) and sentencing except for certain specific purposes which were analysed with some care by Callaway JA in MWH.[56] Thus it may show reformation of character over a significant period of a kind which would make rehabilitation largely irrelevant and greatly reduce, if not extinguish, the need for specific deterrence to be recognised in the sentence. But delay of that kind, which may arise in sentencing sexual offenders … does not give an automatic right for a reduction or discount in sentence. For example, an argument could not be put forward on the basis that the sentence had been hanging over an offender for a long time if in fact detection had occurred only a few months before sentence. It would be preposterous for an offender who committed incest on a six year old child to claim some automatic discount 12 years later where the complainant had first felt safe to complain about her father’s conduct only at the age of 18, and the charge had come on promptly for sentencing, whatever might otherwise be said about his behaviour and apparent reformation in the meantime.[57]
[55][2004] VSCA 222.
[56][2001] VSCA 196.
[57][2004] VSCA 222, [21] (Callaway and Vincent JJA agreeing).
It would be equally preposterous for this appellant to rely on the passage of time between his offending against the complainants, who were very young at the time of the abuse, and the date of sentencing, in order to claim a consequential reduction in his sentence.
Further, her Honour clearly considered that the time which had passed between the commission of the sexual offences and the imposition of sentence, and the appellant’s lack of convictions for sexual offences since 1996 reduced the possibility of him re‑offending and bore favourably on his prospects of rehabilitation.[58] In her reasons, her Honour acknowledged Mr Cummins and Dr Gradstein’s opinion that ‘the absence of like offending in the intervening years was a significant factor in lowering their assessment of risk’ of the appellant re-offending.[59]
[58]R v MWH [2001] VSCA 196, [18] (Callaway JA, O’Bryan AJA agreeing, Buchanan JA dissenting in the result).
[59]Reasons, [63].
Ground 3
The final ground of appeal was that the individual sentences and total effective sentence were manifestly excessive, having regard to the appellant’s youth at the time the offences occurred, his failure to offend in the interim period and the difficulties he was likely to confront in gaol because of his low intelligence and other mental impairments. It was also submitted that her Honour had given too much weight to the appellant’s risk of re-offending.
The learned sentencing judge was faced with a particularly complex sentencing task. The offences were pre-meditated and exploitative. As her Honour recognised, the offending involved an older adolescent exercising his power over and preying on young children, who were unable to defend themselves. Count 2, a rolled up count which involved the applicant forcing the victim to fellate him, was particularly appalling.
The victim impact statements indicate that the victims suffered greatly from the appellant’s abuse and continue to be affected by it. The appellant’s 1996 denial of the offending meant that this harm remained unacknowledged for a significant period of time. This Court has previously referred to the weight which must be given to the ‘social rehabilitation’ of young people who have been the victims of sexual offences, and the role which the imposition of an appropriate sentence may play in assisting their recovery.[60] The appellant’s failure to admit to having offended and the consequent delay in his prosecution must necessarily have delayed this recovery process and is a relevant factor in considering the effect of the offences on the victims under Sentencing Act 1991, ss 5(2)(daa) and (da).
[60]DPP v Toomey [2006] VSCA 90, [20]-[24] (Vincent JA) (see also the comments of Buchanan JA at [10]); DPP v DJK [2003] VSCA 109, [18] (Vincent JA, Batt and Eames JJA agreeing); R v AMP [2010] VSCA 48.
In sentencing the offender as a serious sexual offender on all except two of the counts, the judge was also required to have regard to the presumption that these sentences are to be served cumulatively.[61]
[61]Sentencing Act 1991, s 6E.
On the other hand, the appellant was a young offender when the crimes were committed. Her Honour was entitled to consider that the gravity of the offending required her to give less weight to the applicant’s youth at the time when he offended in sentencing him.[62] However the maximum term of detention which could have been imposed if he had been sentenced in the Children’s’ Court was two years and any Children’s Court sentence would have given considerable weight to his rehabilitation. He suffers from a number of mental impairments which may make his time in prison more burdensome for him and the judge found he had more than a low risk of re-offending.
[62]DPP v Avci (2008) 21 VR 310, 324 [52] (Maxwell P, Buchanan and Redlich JJA agreeing).
The question whether an individual sentence or the total effective sentence is manifestly excessive is ‘usually a matter of impression or reaction when the facts are considered’.[63] The ground of manifest excess is difficult to make out.[64] Nevertheless, I consider that, in the unusual circumstances of this case, the ground succeeds.
[63]R v Langdon (2004) 11 VR 18, 38 [109] (Gillard AJA, Batt and Eames JJA agreeing). See also Dinsdale v The Queen (2000) 202 CLR 321, 325-6 ([6] (Gleeson CJ and Hayne J).
[64]R v Abbott (2007) 170 A Crim R 306; Hili v The Queen (2010) 85 ALJR 195, 208 [59] (French CJ, Hayne, Crennan, Kiefel and Bell JJ, Heydon J agreeing).
In Director of Public Prosecutions v CPD,[65] this Court considered sentencing statistics compiled by the Sentencing Advisory Council and took account of sentence decisions on Director’s appeals relating to the offence of sexual penetration of a child under 10 between 1993 and 2007.[66]
[65][2009] VSCA 114 (‘CPD’).
[66]In a considered obiter dictum, the Court said that recent sentences suggested that courts may not have responded to the 1997 increase in the maximum term of imprisonment for that offence from 20 to 25 years, although that matter could not be taken into account in re-sentencing CPD: ibid [68]-[69].
CPD was aged 38 at the time of offending. He pleaded guilty to two counts of sexual penetration of a three year old girl and two counts of sexual penetration of a six year old (one of the two counts against each girl was representative) and to two further representative counts of committing an indecent act with each girl. The higher maximum penalty of 25 years applied to the sexual penetration offences, whereas in the present case the maximum penalty was 20 years.
The sentences imposed in CPD were found to be manifestly inadequate and the respondent was re-sentenced to terms of three years’ imprisonment on each of the two representative counts of sexual penetration of a child aged under 10. The total effective sentence imposed on CPD for four counts of sexual penetration of a child under 10, two of which were representative counts, and for two representative counts of indecent act with a child under 16, was six years’ imprisonment.
Although care must be taken in comparing sentences imposed for the same offence, because the circumstances of the offender and the offending may be very different, the comparison with the sentences imposed in CPD is instructive. Of course, the present case was an offender’s appeal against sentence, to which the principle of double jeopardy does not apply, and the three victims in this case were older than the two victims in CPD. Nevertheless, I note that the sentence of four years’ imprisonment for count 1 in the present case exceeded the individual sentences imposed for that offence in CPD, despite the lower maximum penalty which applied to the offence. The total effective sentence in the present case was the same as that imposed in CPD, despite the appellant’s youth when he offended and other mitigating factors.[67]
[67]Counsel for the appellant also drew attention to the sentences imposed in R v PJB (2007) VSCA 300 and DPP v WRJ [2009] VSCA 174. In PJB, the appellant was convicted of six counts of indecent assault on a girl under the age of 16 and two counts of indecent assault on a person under the age of 16. He committed the offences when aged between 13 and 19 years against one of his sisters, who was aged between 6 and 12 years. The total effective sentence of 43 months’ imprisonment was held to be manifestly excessive, given the long period that had elapsed since offending and the lack of subsequent offending. The judge was also held to have erred in failing to give appropriate weight to the appellant’s age at the time of offending. In WRJ, the respondent was convicted of two counts of sexual penetration of a child under 16, seven counts of indecent act with a child under 16 and three counts of indecent assault. The victim was the respondent’s niece, who was aged 9 years when the offending began and aged 15 when it ended. The respondent was aged between 16 and 22 years. The Court held that a total effective sentence of 3 years and 10 months, with a non-parole period of 1 year and 8 months was not manifestly inadequate, given the mitigating factors (unfairness caused by delay of six years between complaint and sentence, and rehabilitation).
The Court in CPD also tabulated sentencing statistics relating to the offence of sexual penetration of a child under 10. In 2003-04 to 2007-08, the median length of imprisonment for sexual penetration of a child under 10 was 3 years and 6 months, and the median total effective length of imprisonment was 5 years and 9 months.[68]
[68]Sentencing Advisory Council, Sentencing Snapshot No 90: Sexual Penetration of a Child Under 10 (June 2009), 5, 6.
In the present case, counts 1 and 2 were rolled up counts, that is, a collection of counts bundled together into a single count. Although this might otherwise have justified the imposition of a sentence above the median, the judge also had to take account of appellant’s guilty plea, his youth at the time of offending, and his failure to offend in the past 13 years.
The sentence of two years’ imprisonment imposed on count 4 (the rolled up count of two instances of indecent act) was also above the median of 18 months’ imprisonment imposed for the offence of indecent act with a child under 16 between 2003-04 and 2007-08 (although it is relevant that those statistics cover offences against complainants both under and over 10 years old).[69]
[69]Sentencing Advisory Council, Sentencing Snapshot No 81: Indecent Act with a Child Under 16 (June 2009), 5.
I acknowledge that sentencing statistics may sometimes provide limited assistance. However, in this case they confirm my view that the sentence imposed by her Honour on count 1 was too high. Although her Honour said she had taken account of the youth of the offender, the sentence imposed suggests that she gave insufficient weight to that matter. I also consider that the orders for cumulation produced a total effective sentence which was outside the range of sentences which could have been imposed by the judge in the circumstances of this case. The appellant must therefore be re-sentenced.
The appellant’s counsel submitted that, for the purposes of re-sentencing, the Court should take account of the fact that the urine sample provided by him on 23 November 2010 was negative for the presence of various drugs, and that the appellant has successfully completed a smoking management program while in gaol. Counsel also relied on the fact that the Ombudsman had found that the appellant was mistreated by custodial officers at the Melbourne Custody Centre when he was remanded in custody following his arrest on 31 August 2008.[70] I have given some minor weight to these matters in re-sentencing the appellant.
[70]See generally, R v Holmes (1979) 1 Cr App R (S) 233; Davis v Police [2004] SASC 318, [16] (Anderson J).
I would re-sentence the appellant as follows:
Count
Offence
Maximum
Sentence
Cumulation
1
Sexual penetration of a child under 10[71]
20 years’ imprisonment
3 years’ imprisonment
Base sentence
2
Sexual penetration of a child under 10
20 years’ imprisonment
2 and a half years’ imprisonment
6 months
3
Sexual penetration of a child under 10
20 years’ imprisonment
18 months’ imprisonment
6 months
4
Indecent act with a child under 16[72]
10 years’ imprisonment
2 years’ imprisonment
6 months
[71]Contrary to Crimes Act 1958, s 45(1).
[72]Contrary to Crimes Act 1958, s 47(1).
This amounts to a total effective sentence of four years and six months. I would fix a non‑parole period of two years and six months.
Pursuant to section 6AAA of the Sentencing Act 1991, I declare that, if the appellant had not pleaded guilty, I would have sentenced him as follows:
Count
Offence
Maximum
Sentence
Cumulation
1
Sexual penetration of a child under 10
20 years’ imprisonment
4 years’ imprisonment
Base sentence
2
Sexual penetration of a child under 10
20 years’ imprisonment
3 years’ imprisonment
9 months’
3
Sexual penetration of a child under 10
20 years’ imprisonment
2 years’ imprisonment
6 months’
4
Indecent act with a child under 16
10 years’ imprisonment
2 years and 6 months’ imprisonment
1 year
That would have amounted to a total effective sentence of six years and three months’ imprisonment and I would have fixed a non-parole period of four years.
MANDIE JA:
I agree with Neave JA.
TATE JA:
I would dismiss the appeal.
I agree with Neave JA that, for the reasons given by her Honour, grounds 1 and 2 of the grounds of appeal fail.
The third ground of appeal was that the individual sentences and total effective sentence were manifestly excessive. I do not agree. I consider that it was open to the sentencing judge to arrive at the sentences she did in recognition of the age of the victims, the gravity of the offending, and the importance of denunciation and general and specific deterrence.
The offending related to three separate victims who were aged between six and 10. They were young and vulnerable little girls exploited by the appellant. As
the Chief Justice and Redlich JA said in WCB v The Queen,[73] it is important that sentencing practices reaffirm properly informed values of the community, most especially in relation to the protection of children. As their Honours said:[74]
In the case of sexual exploitation of children, which involves ‘a derogation from the fundamental human rights of immature, dependent and vulnerable persons’, the sentence constitutes an important reaffirmation by society of those values … In R v Sposito, the Full Court spoke of the breach of trust placed in the offender by the community and society’s responsibility to protect its children from sexual abuse. In Wayland Crockett J gave express recognition to the rising tide of public indignation concerning sexual offences against children and the court’s obligation to respond to legitimate community concern. In R v Wakime, Winneke P, after referring to the capacity of crimes against children to erode decent family life and the trust and confidence of its victims, repeated that this court ‘ought not to turn its back on the tide of community anger and resentment towards crimes which involve the despoliation of children’. In DPP v Riddle Vincent JA considered that ‘just punishment, public denunciation and general deterrence’ assumed considerable significance as sentencing considerations given the fact that the community had been required to face and respond to an appalling incidence of child abuse. In DPP v Toomey, Vincent JA referred to the fact that sexual abuse of children is regarded by the reasonable person as extremely serious, not only by reason of its potential and actual impacts on the individual victims, but also because of the damage occasioned to the community generally.
[73][2010] VSCA 230.
[74]Ibid [36] (footnotes omitted).
The gravity of the offending is most apparent in relation to Count 2, a rolled up count, especially the second occasion of sexual penetration of the victim, D, then aged seven, whom the appellant first made masturbate him. This was before he put his penis in the victim’s mouth and pushed her head back and forth. For the appellant to make a seven-year-old girl actively, and not just passively, engage in sexual activity for his gratification was, in my opinion, egregious conduct that, in the circumstances of the overall offending, warranted severe punishment. With respect to Counts 1 and 3, I consider that the exploitation of the appellant’s relationship to the victims, as a friend of their brother’s and a regular visitor in the home of their childhood, similarly warranted an appropriately severe sentence. The breach of trust that lay at the heart of Count 4, where the victim was the appellant’s second cousin with whose family the appellant was living, demanded that the punishment be suitably harsh.
Moreover, the appellant stood to be sentenced as a serious sex offender on Counts 3 and 4 and thus, on those counts, in accordance with the presumption of cumulation in s 6E of the Sentencing Act 1991.The High Court, in R H McL v The Queen,[75] emphasised the purpose and importance of a statutory presumption of cumulation:[76]
The need for judges not to compress sentences is especially important where the accused person is a “serious sexual offender” within the meaning of s 16(3A) of the Sentencing Act, and similar provisions. Section 16(3A) gives effect to a legislative policy that serious offenders are to be treated differently from other offenders. It was plainly intended to have more than a formal effect, which is the effect it would frequently have if its operation was subject to the full effect of the totality principle. Given the terms of s 16(3A), the scope for applying the totality principle must be more limited than in cases not falling within that section. The evident object of the section is to make sentences to which it applies operate cumulatively rather than concurrently. The section gives the judge a discretion to direct otherwise. But the object of the section would be compromised and probably defeated in most cases if the ordinary application of the totality principle was a sufficient ground to liven the discretion. Since the relationship between s 16A(3A) and the totality principle does not arise in this appeal, it is enough to say that sentencing judges need to be astute not to undermine the legislative policy inherent in s 16(3A) by applying the totality principle to the sentences as if that section (or s 6E which replaced it) was not on the statute book.
[75](2000) 203 CLR 452.
[76]Ibid 476-7 [76] (in considering the predecessor to s 6E, namely, s 16(3A) (emphasis added).
The cumulation afforded to the offences by the sentencing judge was, in my opinion, consistent with the legislative policy behind s 6E.
In my opinion, it was open to the sentencing judge to arrive at both the individual sentences and the total effective sentence that she did.
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