Phillips (a Pseudonym) v The Queen

[2018] VSCA 114

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0250

BERNARD PHILLIPS (a pseudonym)[1]	Appellant
v
THE QUEEN	Respondent

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

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JUDGES:	MAXWELL P and KYROU JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 March 2018
DATE OF JUDGMENT:	9 May 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 114
JUDGMENT APPEALED FROM:	DPP v Phillips (a pseudonym) [2016] VCC 1699 (Judge Pullen)

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CRIMINAL LAW – Appeal – Sentence – Incest (2 charges) – Indecent act with child under 16 (1 representative charge, 4 single charges) – Two complainants – Incest sentences 6y, 5y – Not challenged – Sentence on representative indecent act charge 14m – Whether manifestly excessive – Total effective sentence 11y 5m – Non-parole period 9y – Whether total effective sentence manifestly excessive – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr N Hutton	Mike Wardell
For the Respondent	Mr C B Boyce SC	John Cain, Solicitor for Public Prosecutions

MAXWELL P
KYROU JA:

Introduction and summary

1. On 14 June 2016, the appellant was convicted by jury verdict of sexual offences charged on Indictment No. E12651514.C (‘trial indictment’).  On 15 June 2016, he pleaded guilty to sexual offences charged on Indictment No. E12651514.A1 (‘plea indictment’). 

1. The offences the subject of the trial indictment were committed against a girl to whom we shall refer as T.  The offences the subject of the plea indictment were committed against a different girl, to whom we shall refer as P.

1. On 14 November 2016, the appellant was sentenced as set out below:[2]

   [2]DPP v Phillips (a pseudonym) [2016] VCC 1699 (‘Sentencing remarks’).

Trial indictment
Charge	Offence	Maximum	Sentence	Cumulation
1	Indecent act with a child under 16	10y	30m	1y
2	Incest	25y	5y	2y
3	Indecent act with a child under 16	10y	3y	14m
4	Incest	25y	6y	Base
Plea indictment
1	Indecent act with a child under 16	10y	6m	2m
2	Indecent act with a child under 16	10y	14m	8m
3	Indecent act with a child under 16	10y	10m	5m
Total Effective Sentence:  11y, 5m
Non-Parole Period:  9y
Pre-Sentence Detention Declaration:  153 days
Plea indictment s 6AAA Statement:  4y with a non-parole period of 2y, 4m
Other Orders: Pursuant to s 34 Sex Offenders Registration Act 2004, the length of the reporting period is life

1. The offending charged on the plea indictment was committed in the period 30 May 2001–10 August 2002.  During that time, P was aged between 14 and 15 years and the appellant was aged between 36 and 37.  P often babysat the appellant’s two biological daughters at his home.

1. The offending charged on the trial indictment was committed in the period 7 July 2006–6 July 2011.  During that time, T was aged between 7 and 11 years and the appellant was aged between 41 and 46.  T is the appellant’s second daughter.

1. The appellant was granted leave to appeal by a single judge of this Court.[3]  Leave was granted on two grounds: first, that the sentence imposed on charge 2 and the orders for cumulation in respect of charges 1–3 on the plea indictment are manifestly excessive; and secondly, that the individual sentences imposed on charges 1, 3 and 4, and the orders for cumulation in respect of charges 1–3 on the trial indictment, are manifestly excessive.  

   [3]Phillips (a pseudonym) v The Queen [2017] VSCA 76.

1. On the hearing of the appeal, however, counsel for the appellant abandoned the challenge to the sentences on the charges in the trial indictment.  Counsel said that the decision to abandon was made in the light of the High Court’s decision in Director of Public Prosecutions v Dalgliesh.[4]

   [4](2017) 349 ALR 37.

1. For the reasons that follow, the appeal will be dismissed.

Circumstances of offending

Plea indictment

1. The appellant was a friend of P’s family and would visit their home.  As we have already stated, P often babysat the appellant’s daughters.  She spent time at his house with her family. 

1. When P was 14 years old, the appellant began brushing his hands over her breasts and vagina.  This occurred on a number of occasions over the course of a few months.  No charges were laid in respect of that conduct.

1. On one occasion at the appellant’s house, when P was 14 years old, the appellant leaned over and kissed her, inserting his tongue into her mouth.  When she pulled away, he leaned in towards her again and inserted his tongue into her mouth a second time.  (Charge 1 on the plea indictment).

1. Charge 2 on the plea indictment was representative of three occasions when the appellant touched and rubbed P’s vagina.  The appellant fell to be sentenced for the first occasion, which occurred when he was at P’s home.  He took her to a paddock where he put his hand down her pants and tried to take her pants off.  She told him not to.  The appellant rubbed his hand up and down on P’s vagina on the inside of her pants, but outside of her underwear.

1. On the second occasion, the appellant was riding a motorcycle with P seated behind him.  During the ride, he rubbed P’s vagina on the outside of her clothing with his hand.

1. On the third occasion, the appellant was riding a motorcycle with P as a passenger in the bush.  He stopped the motorcycle and told P to dismount before touching her on the vagina on the outside of her clothing and rubbing his hand up and down over her vagina.  The appellant stopped when others arrived.

1. The conduct the subject of charge 3 on the plea indictment occurred one evening when P stayed overnight at the appellant’s home in order to babysit his daughters the next day.  She was sleeping on the lounge room floor when the appellant went to the kitchen wearing only his underwear.  He walked into the lounge room, sat beside P, kissed her and took off her boxer shorts.  He lay on top of her, pushed his groin area into hers, and through his underwear moved his erect penis against her vagina.  She told him to stop, but he continued and told her to be quiet because T’s mother might hear.  He stopped when he heard a noise, got off her and kissed her on the cheek.  T’s mother, who had come out of the bedroom, saw that kiss. 

1. In 2003, the appellant’s relationship with T’s mother ended.  P, who was then 16 years old, continued to have a relationship with the appellant.  By the time P was 18 years old, she and the appellant were openly in a relationship and living together.  They later had two children, a daughter and a son.

Trial indictment

1. The appellant’s offending against T occurred at the home that he shared with P.  The appellant had weekend access visits with T and her older sister. 

1. On one occasion, the appellant told T that he wanted to show her a blanket in his room and asked her if she would like to have it on her bed.  T went into the appellant’s bedroom.  He closed the door, pulled down her pants and licked her vagina.  The appellant stopped when someone knocked on the bedroom door.  He directed T to walk out of the bedroom with the blanket and put it on her bed and act ‘as if that was what had happened’.[5]  (Charge 1 on the trial indictment).

   [5]Sentencing remarks [11].

1. On another occasion, T was sleeping on the floor of the games room at the appellant’s house, while her older sister was sleeping on the couch.  The appellant came into the room and carried T’s sister out of the room and put her to bed.  He then returned to the games room, woke T, pulled down his pants, grabbed the back of T’s head and ‘shoved her head onto [his] penis’.[6]  Each time she pulled her head back he pulled it forward again.  He stopped when P returned home and opened the front door.  (Charge 2 on the trial indictment).

   [6]Sentencing remarks [12].

1. On a further occasion, when only the appellant and T were home, he put his hand down her pants and tickled her vagina.  She described the tickling as different, as if the appellant was about to insert his fingers into her vagina.  T rolled away from the appellant as the door to the lounge room opened.  Afterwards, the appellant told T that if she told anyone about what had occurred, ‘bad things would happen to her’.[7]  (Charge 3 on the trial indictment).

   [7]Sentencing remarks [14].

1. On the final occasion, the appellant entered T’s bedroom and closed the door.  He told her to be quiet, pulled down his pants and ‘shoved her head onto [his] penis like it was in the games room’.[8]  He grabbed her hair from the back of her head and moved her head backwards and forwards.  The appellant stopped and ran outside when his uncle entered the house.  (Charge 4 on the trial indictment).

   [8]Sentencing remarks [15].

1. The appellant’s relationship with P ended in 2012.

1. The appellant was arrested on 17 February 2014.  He was tried and convicted by jury verdict of the trial indictment offending on 14 June 2016.  He pleaded guilty to the plea indictment charges on 15 June 2016, which was to be the first day of trial.

1. In her victim impact statement, P described herself as feeling hypervigilant, shameful and constantly fearing for her safety and that of her family.  She felt grief at the loss of her teenage years and suffered from anxiety, panic attacks and depression.  As a result of her anxiety and panic attacks, she had to leave her job.  She experienced nightmares, flashbacks, changes to her appetite and memory loss.

1. T also wrote a victim impact statement.  She stated that she felt dirty, angry and confused.  She felt as if the offending was her fault.  Her relationships with her family and friends had suffered.  She no longer felt comfortable at school and had to move schools.  She felt scared and nervous when she was in public and would not go anywhere unless she had someone by her side.  She found it difficult to concentrate and continued to experience nightmares about the offending. 

1. T’s mother prepared a victim impact statement, in which she stated that she felt angry and sick and that she had let her daughter down. 

Personal circumstances

1. The appellant was 51 years old at the time of sentencing.  He is the fifth of six siblings.  His family moved regularly during his childhood.  He had a close relationship with his mother.  However, his father was an alcoholic and ‘heavy handed’. 

1. The appellant left school at Year 11 and worked on citrus properties for approximately three years before moving interstate and undertaking farm work at his brother’s property.  Since that time, he has worked in the agricultural and transport industries.  Prior to his arrest, he had worked for a delivery company for approximately four years.  At the time of sentencing, he was studying panel beating at TAFE with the intention of gaining employment in that industry.

1. Before his relationship with T’s mother, the appellant had had a number of significant relationships, including a two-year relationship with a woman eight years his junior.  At the time of sentencing, he had been in a relationship with a woman two years his junior for three and a half years, and intended to live with her upon his release from prison.  

1. In 2013, the appellant was diagnosed with major depression and began taking anti-depressants.

1. In 2014, the appellant and P suffered the loss of their son to cancer.  Due to the conditions of his bail, the appellant was unable to attend the funeral and he still suffers significant grief as a result. 

1. In 2004, the appellant was convicted of two charges of unlawful assault and was fined $500 in the Magistrates’ Court.  In 2013, he appeared in the Magistrates’ Court on charges of threatening to destroy property, threatening to inflict serious injury and assault which were alleged to have occurred against P in 2012.  The appellant was placed on a good behaviour bond and ordered to pay $250 to the court fund.

1. The appellant does not have any history of drug or alcohol abuse.

Plea hearing

1. On the plea, the appellant tendered a report from Dr Aaron Cunningham, a forensic psychologist, dated 11 August 2016.  Dr Cunningham’s opinion was that the appellant suffered from a major depressive disorder and experienced depressed mood, fatigue, feelings of guilt and thoughts of death.  In his view, the appellant’s depression began during his relationship with T’s mother and ‘escalated significantly’ after the death of his son. 

1. Dr Cunningham stated that the appellant met the criteria of paedophilia.  It was Dr Cunningham’s opinion that the appellant presented with cognitive distortions that allowed him to have relationships with underage individuals, which would need to be addressed in sex offender treatment.

1. In Dr Cunningham’s opinion, the appellant’s relationship with his partner, insight into the wrongfulness of his behaviour, motivation to engage with treatment and efforts to undertake courses and training were protective factors that could reduce his risk of reoffending.  Dr Cunningham stated that the appellant would benefit from psychological intervention to treat his major depressive disorder.

Sentencing remarks

1. The judge described the appellant’s offending against T as ‘most serious and disturbing’ and ‘despicable’.[9]  She referred to counsel for the appellant’s concession that the offending against P was also ‘serious’,[10] but accepted that there had been no ‘skin to skin’ contact involved in that offending.  The judge also accepted that P was possibly 15 years old at the time of the offences the subject of charges 2 and 3 on the plea indictment.[11]

   [9]Sentencing remarks [3], [18].

   [10]Sentencing remarks [43].

   [11]Sentencing remarks [44].

1. The judge found that the gross breach of trust against T and her mother was a significant aggravating feature of the trial indictment offending.  She also found that offending to be aggravated by the appellant’s threat that if T said anything about it, ‘bad things would happen to her’.[12]

   [12]Sentencing remarks [17].

1. The judge found that the plea indictment offending also represented a breach of trust against both P and her parents.  She accepted that the offending, while objectively less serious, had occurred while P was young and involved manipulation.   

1. The judge was unable to find that the appellant was remorseful for his offending against T, as he continued to deny that he had committed those offences.  However, she took into account as a mitigating factor that he had pleaded guilty to the offending against P.  She noted that the guilty plea had spared the time and cost of a trial and witnesses, particularly P, from the ordeal of giving evidence.  She stated that the plea was evidence of some remorse, but noted that it was made at a late stage and that she was unable to quantify his remorse.

1. The judge also had regard to the appellant’s limited criminal history and major depressive disorder which escalated after the death of his son.  She found that there was insufficient material to enliven Verdins[13] principles, but took into account as a general sentencing principle that the appellant would find custody more difficult than a prisoner who did not suffer from a major depressive disorder.

   [13]R v Verdins (2007) 16 VR 269.

1. Based on Dr Cunningham’s diagnoses of paedophilia and cognitive distortions, the judge stated that she was concerned about the appellant’s risk of reoffending.  She noted that the appellant had not yet participated in sexual offender treatment but stated that she had ‘guarded optimism’ about his prospects of rehabilitation, which would ‘hopefully [improve] with sex offender treatment’.[14]

   [14]Sentencing remarks [107].

1. The judge said that the appellant understood the wrongfulness of engaging in sexual behaviour with underage individuals and noted that Dr Cunningham had expressed the opinion that the appellant had insight into the wrongfulness of his behaviour.

1. The judge found that specific deterrence was necessary when sentencing the appellant.  This was because, in addition to the appellant’s previous court appearance in 2004, the appellant’s offending against T occurred on four separate occasions and his offending against P involved five separate occasions.  She also had regard to general deterrence, which she stated was of considerable importance in a case such as the appellant’s.

1. The judge sentenced the appellant as a serious sexual offender on charges 3–4 on the trial indictment and charges 1–3 on the plea indictment. Pursuant to s 6D of the Sentencing Act 1991, the judge had regard to the protection of the community as the principal sentencing purpose.[15] 

   [15]Sentencing remarks [102].

Ground of appeal

1. The remaining ground of appeal contends that:

The individual sentence on charge (2) is manifestly excessive; and

The orders for cumulation in respect of:

charge (1);

charge (2); and

charge (3);

on the sentence imposed on [the plea indictment] (and cumulative on the sentence imposed on the [trial indictment]) are manifestly excessive.

Parties’ submissions

1. The appellant submitted that the total effective sentence was manifestly excessive, as a consequence of the sentence on charge 2 on the plea indictment being manifestly excessive and the orders for cumulation on the plea indictment resulting in cumulation of 15 months on the sentence for the trial indictment offending. 

1. The appellant conceded that the offending the subject of charge 2 on the plea indictment fell into the mid-range of seriousness.  However, he emphasised that P was of ‘advanced years’, namely 15, and that the touching was non-penetrative — being on the outside of her underwear — and of short duration.  He also contended that charge 2 could have been dealt with in the Magistrates’ Court and would not necessarily have resulted in a sentence of imprisonment.  He argued that, in the light of the circumstances of the offending, his plea of guilty and lack of relevant prior history, the sentence imposed on that charge was manifestly excessive. 

1. The appellant submitted that the sentence for charge 2 should have been lower than the sentence of 10 months for charge 3, which he argued was a more serious example of indecent act with a child under 16.  Accordingly, so it was said, the longer sentence of 14 months’ imprisonment imposed on charge 2 was, comparatively, manifestly excessive. 

1. The appellant relied on the Sentencing Advisory Council’s Sentencing Snapshot showing trends in the Magistrates’ Court for indecent act with a child under 16.  The Snapshot showed that in the period from 2004–2005 until 2006–2007, approximately 75 per cent of offenders convicted of that offence did not receive an

immediate custodial sentence[16] and that the median sentence of imprisonment was 12 months.[17] He also relied on the Sentencing Snapshot for the same offence in the higher courts in the period from 2009–2010 until 2013–2014, which showed that approximately 35 per cent of offenders convicted of that offence did not receive an immediate custodial sentence,[18] and that the median sentence of imprisonment was 23 months.[19]

[16]Sentencing Advisory Council, Sentencing Snapshot No 50: Indecent Act with a Child Under 16 (June 2008) 3 (‘Sentencing Snapshot No 50’).

[17]Sentencing Snapshot No 50, 5.

[18]Sentencing Advisory Council, Sentencing Snapshot No 178: Indecent Act with Child Under 16 (June 2015) 1 (‘Sentencing Snapshot No 178’).

[19]Sentencing Snapshot No 178, 3.

1. The appellant submitted that the orders for cumulation on the plea indictment were manifestly excessive as they amounted to 15 months’ imprisonment, which alone would have represented a long sentence for that offending, and were in addition to the ‘fairly significant’ sentence for the trial indictment offending.  He contended that the sentences were manifestly excessive in circumstances where the offending fell at the lower end of the scale for indecent act with a child under 16, although he conceded in his oral submissions that charge 2 fell in the mid-range of seriousness. 

1. The appellant relied on his guilty plea — albeit that it was very late — and the absence of relevant prior convictions as important mitigating circumstances.

1. The Crown submitted that neither the sentence on charge 2 of the plea indictment nor the total effective sentence was manifestly excessive.  Regarding charge 2, it accepted that the offending was in the mid-range of seriousness and contended that 14 months’ imprisonment was therefore within range, particularly in circumstances where the offending involved a breach of trust not only of P but also her parents.  It relied on the fact that, although the judge had found that the appellant’s plea of guilty indicated ‘some remorse’, she was unable to quantify it and did not make any finding on whether the appellant had insight into his offending. 

1. The Crown accepted that, on its face, the offending the subject of charge 3 on the plea indictment was more serious than the offending the subject of charge 2.  However, it contended that charge 2 was also serious, involving the appellant rubbing P’s vagina inside of her pants, albeit outside of her underwear.  It argued that 14 months’ imprisonment was within range for that charge, if not at the lower end, in circumstances where:

(a)       the appellant was sentenced for that charge as a serious sexual offender;
(b)      the charge was a representative charge;
(c)       there was a considerable age difference between the appellant and P; and
(d)      the offending involved a breach of trust. 

1. The Sentencing Snapshots also, so it was said, showed that the imposition of a custodial sentence of 14 months was open to the judge. 

1. The Crown argued that, although the appellant did not fall to be sentenced for all three occasions that charge 2 represented, the judge was entitled to have regard to the ‘whole picture in determining the appropriate sentence’ and that a representative count ‘is likely to lead to a greater sentence than otherwise would be imposed’.[20]  It further contended that charge 2 on the plea indictment being a representative charge prevented the appellant from arguing, in mitigation, that the offending was of an isolated nature.  Accordingly, so it was said, there was no discrepancy between the sentences imposed on charges 2 and 3 on the plea indictment. 

   [20]The Crown relied on R v CJK (2009) 22 VR 104, 113 [55].

1. The Crown submitted that the orders for cumulation were unremarkable.  It contended that, as there were two complainants, cumulation between the plea and trial indictment charges was appropriate. 

Decision

1. In our opinion, the ground of appeal must be rejected. 

1. The appellant’s concession that the offending the subject of charge 2 on the plea indictment fell in the mid-range of seriousness was properly made.  In the light of that concession, it cannot be sensibly maintained that a sentence of 14 months is manifestly excessive in the context of a maximum penalty of 10 years.  Indeed, for an offence of that level of seriousness, the sentence is moderate.

1. The appellant relied heavily on P’s age, the absence of skin to skin contact and the short duration of the offending the subject of charge 2 as circumstances that lessened the seriousness of his offending.  We accept that the age of a victim of sexual offending, the duration of the offending and the degree of physical contact are relevant in assessing where, on the spectrum of seriousness, particular offending lies.  However, consistent with the appellant’s concession that the offending fell within the mid-range of seriousness, in the present case these circumstances are insufficient to establish that the sentence of 14 months is outside the range reasonably open. 

1. The fact that P was 14 or 15 years of age at the time of the offending does not diminish the gravity of the appellant’s offending.  This is so in the light of the fact that she was a friend of the family and both she and her parents trusted the appellant.  This relationship of trust placed her in a position of vulnerability because her parents had the confidence to leave her alone with him and he was able to exploit the opportunities that this afforded to sexually abuse her.

1. Nor does the absence of skin to skin contact mean that the appellant’s offending was not serious.  The rubbing of P’s vagina outside her underwear represented a serious sexual assault.  Notwithstanding that the rubbing was over her underwear, it nevertheless constituted a forceful and intrusive act which violated the most intimate part of her body.  Moreover, the assault was in flagrant disregard of P’s clear indication that she did not want any sexual contact.[21]

   [21]See [12] above.

1. Although the appellant described the duration of the offending as short, the summary of the prosecution opening does not indicate how long the offending persisted.  Even if it is accepted that the offending was brief, in the circumstances of this case that would not diminish the seriousness of the offending or the impact of it on P.

1. We do not believe that comparing the seriousness of the offending the subject of charge 2 with the offending the subject of charge 3 assists the appellant.  Unlike charge 3, charge 2 was a representative charge.[22]  Even if it is accepted that the latter offending is more serious, that does not suggest that the sentence for charge 2 is manifestly excessive.  Rather, it suggests that the sentence for charge 3 is very lenient. 

   [22]See R v SBL [1999] 1 VR 706, 726 [70]; R v CJK (2009) 22 VR 104, 111–12 [47], 113–14 [55], [58]; DPP v Tewksbury [2018] VSCA 38 [78].

1. The sentence of 14 months’ imprisonment for charge 2 is wholly consistent with the changed sentencing parameters for incest following this Court’s decision in Dalgliesh (a pseudonym) v The Queen.[23]  As the leave judge noted,[24] the appellant accepts that he stood to be sentenced ‘in a post-Dalgliesh environment.’

   [23][2016] VSCA 148. See our reasons in Grantley v The Queen [2018] VSCA 112 [20–[27].

   [24][2017] VSCA 76 [20].

1. In Tones v The Queen,[25] the offender was sentenced to 12 months’ imprisonment for committing an indecent act with a child under 16.  The offending comprised touching the 13-year-old victim’s vagina over her underwear as she lay beside him on his bed.  This Court rejected the offender’s contention that the sentence was manifestly excessive. 

   [25][2017] VSCA 118 (‘Tones’).

1. In Director of Public Prosecutions v Meharry,[26] this Court resentenced the offender to 18 months’ imprisonment for the offence of indecent act with a child under 16.  The offending took place when the offender and the 15-year-old victim went swimming.  The offender touched the victim’s bottom under her shorts.  She told him to stop.  He then grabbed her, undid her shorts and rubbed her clitoris on the outside of her bikini bottom. 

   [26][2017] VSCA 387 (‘Meharry’).

1. Tones and Meharry are recent decisions of this Court and reflect current sentencing practices for this type of offending more accurately than the Sentencing Snapshots upon which the appellant relied. 

1. We respectfully agree with the judge that specific deterrence and community protection had to be viewed as important sentencing considerations.  Given Dr Cunningham’s diagnosis of paedophilia, and the appellant’s cognitive distortions regarding the offending, that conclusion was inescapable.

1. We reject the appellant’s contention that the orders for cumulation for charges 1–3 on the plea indictment are manifestly excessive.  Each of the orders for cumulation is modest having regard to the separate offending that those charges involve. 

1. We also reject the appellant’s contention that the total cumulation of 15 months’ imprisonment for the plea indictment was manifestly excessive, having regard to what he described as the already ‘fairly significant’ total cumulation of 10 years and 2 months’ imprisonment for the trial indictment.  The appellant was sentenced for each of the charges the subject of the plea indictment as a serious sexual offender and thus those charges warranted considerable cumulation.[27]  Considerable cumulation was also necessary to reflect the fact that the offending the subject of that indictment involved a different victim to the trial indictment, occurred at an earlier time and comprised sexual abuse of a different kind.  The total effective sentence represents ‘a just and appropriate measure of the total criminality involved’.[28]

   [27]See Sentencing Act 1991 s 6E.

   [28]See Postiglione v The Queen (1997) 189 CLR 295, 307–8.

Conclusion

1. For the above reasons, the appeal will be dismissed.