Pickford (a pseudonym) v The Queen
[2019] VSCA 195
•11 September 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0190
| JAMES PICKFORD (a pseudonym)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]To ensure that there is no possibility of identification of the victim of the sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.
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| JUDGES: | KYROU, EMERTON and WEINBERG JJA |
| WHERE HELD: | MILDURA |
| DATE OF HEARING: | 30 August 2019 |
| DATE OF JUDGMENT: | 11 September 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 195 |
| JUDGMENT APPEALED FROM: | [2018] VCC 1079 (Judge Gucciardo) |
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CRIMINAL LAW – Appeal – Sentence – One charge of incest, one charge of indecent act with a child under the age of 16 – Course of conduct charges – Complainant was daughter of applicant’s de facto partner – Applicant subsequently married complainant’s mother – Complainant aged between 10–15 years during period of offending – Applicant sentenced to total effective sentence of 7 years and 9 months’ imprisonment with non-parole period of 5 years and 6 months – Crown concession that sentence bad in law because incest charge included period prior to marriage of applicant and complainant’s mother – Amendment to indictment under s 165(1) of Criminal Procedure Act 2009 – Whether proceeding should be remitted to County Court for resentencing – Applicant resentenced to total effective sentence of 6 years and 9 months’ imprisonment with non-parole period of 4 years and 9 months.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr C T Carr | Stary Norton Halphen |
| For the Respondent | Mr B F Kissane QC with Mr J C J McWilliams | Mr J Cain, Solicitor for Public Prosecutions |
KYROU JA
EMERTON JA
WEINBERG JA:
Introduction and summary
On 2 May 2018, the applicant pleaded guilty to the charges set out in the following table, and on 16 July 2018, he was sentenced as set out in that table.[2]
[2]DPP v Pickford (a pseudonym) [2018] VCC 1079 (‘Sentencing remarks’).
Charge Offence Maximum Sentence Cumulation 1 Incest [Crimes Act 1958 s 44(1)] 25 years 7 years Base 2 Indecent act with a child under the age of 16 [Crimes Act s 47(1)] 10 years 2 years 9 months Total Effective Sentence: 7 years and 9 months’ imprisonment Non-Parole Period: 5 years and 6 months Pre-Sentence Detention Declaration: 20 days Section 6AAA Statement: 8 years and 6 months’ imprisonment, non-parole period of 6 years and 6 months Other Orders: Pursuant to s 34 of the Sex Offenders Registration Act 2004, the length of reporting is life
Both charges were course of conduct charges and the applicant was sentenced on the basis that the offending in relation to each charge occurred on a regular basis between 1 May 2012 and 31 January 2017. However, the number of occurrences was not specified. During this period, the applicant was aged between 30 and 35 years and the complainant was aged between 10 and 15 years.
Section 44 of the Crimes Act, as in force at the time the current offences were committed, established various incest offences depending on the relationship between the offender and the victim. Section 44(1) established the offence of incest where the offender ‘take[s] part in an act of sexual penetration with a person whom he or she knows to be his or her child or other lineal descendant or his or her step-child’. Section 44(2) established the offence of incest where the offender ‘take[s] part in an act of sexual penetration with a person under the age of 18 whom he or she knows to be the child or other lineal descendant or the step-child of his or her de facto spouse’. Both offences carried a maximum penalty of 25 years’ imprisonment.
In the present case, charge 1 on the indictment alleged that the applicant ‘at Cranbourne South and divers other places in Victoria between 1st day of May 2012 and the 31st day of January 2017 took part in an act of sexual penetration with [the complainant] a person whom he knew to be his step-child in that he introduced his finger into the vagina of [the complainant]’. The indictment described the charge as a ‘course of conduct charge’ and stated that the offence constituted incest contrary to s 44(1) of the Crimes Act.
The prosecution summary which set out the agreed facts upon which the applicant was sentenced stated that the applicant and the complainant’s mother commenced a de facto relationship in April/May 2011 and that they married in February 2014. The precise date of the marriage was 15 February 2014. On the appeal, the Crown conceded that charge 1 on the indictment was bad in law because it included the period from 1 May 2012 until 14 February 2014 during which the applicant and the complainant’s mother were not married. However, the applicant was sentenced in accordance with the indictment because neither the parties nor the sentencing judge were aware of the error.
Initially, the applicant sought leave to appeal against his sentence on the sole ground that the individual sentences, the order for cumulation and the non-parole period are manifestly excessive. On 5 April 2019, Coghlan JA referred the application for leave to appeal to a bench of three.
Before us, the applicant sought and was given leave to add a second ground, namely:
By charge 1, the applicant was sentenced for a breach of s 44(1) [of the Crimes Act] which encompassed regular and ongoing offending from 1 May 2012 to 31 January 2017, whereas on the facts admitted and proven on the plea, the applicant was guilty of offending against s 44(1) that commenced only in February 2014.
The Crown conceded that this Court should grant leave to appeal and allow the appeal in relation to the second ground. As a result of this concession, the applicant did not press the manifest excess ground.
It was common ground that, as charge 1 on the indictment was bad in law, the Court should amend it pursuant to s 165(1) of the Criminal Procedure Act 2009 (‘CPA’) to substitute ‘between the 15th day of February 2014 and the 31st day of January 2017’ for ‘between 1st day of May 2012 and the 31st day of January 2017’. That section provides that this Court may, at any time, ‘order that an indictment be amended in any manner that the court thinks necessary, unless the required amendment cannot be made without injustice to the accused’. Section 165(2) provides that, if an indictment is amended under s 165(1), ‘the indictment is to be treated as having been filed in the amended form for the purposes of the trial and all proceedings connected with the trial’.
What was not common ground was whether, after this Court allowed the appeal and amended charge 1 on the indictment, it should resentence the applicant or remit the proceeding to the County Court for resentencing.[3] The applicant submitted that the Court should adopt the first course whereas the Crown submitted that it should adopt the second.
[3]The power to remit is conferred by s 282(1)(b) of the CPA.
For the reasons that follow: the application for leave to appeal in respect of the second ground will be granted; the appeal will be allowed; charge 1 on the indictment will be amended as set out at [9] above; and the applicant will be resentenced as set out at [77] below.
Circumstances of the offending
The applicant and the complainant’s mother met in 2010 while they were both serving in the Royal Australian Navy in Darwin. In April/May 2011, they moved into a house in Darwin together with some of their children from previous relationships. The complainant’s mother has three daughters, of which the complainant is the middle child. The complainant and her younger sister lived with their mother. The applicant has a son and a daughter who lived between his residence and their mother’s residence.
The applicant began sexually abusing the complainant when they lived in Darwin. He would digitally penetrate her vagina, make her touch his penis and pull her head down towards his penis. This conduct is not the subject of any charge.
Approximately nine months after moving into the house in Darwin, the complainant’s mother was posted to HMAS Cerberus in Victoria. In January 2012, she moved to Langwarrin with her two youngest daughters where they lived until May 2012. During this time the applicant remained living in Darwin, but would visit. The applicant’s conduct, as set out at [13] above, continued during this period. This conduct is also not the subject of any charge.
Approximately four months later, the applicant was also posted to HMAS Cerberus. In May 2012, the applicant, the complainant, her mother and younger sister moved to Cranbourne South.
While living in Cranbourne South the applicant rubbed the complainant’s clitoris and digitally penetrated her vagina. She alleged that this occurred on approximately 10 to 20 occasions. This conduct formed part of the original incest charge. As the applicant digitally penetrated the complainant’s vagina, he placed her hand on his penis. This forms part of the indecent act charge.
The offending would occur in the lounge room and the complainant’s bedroom while the complaint’s mother was either asleep or in another room. The applicant told the complainant not to tell her mother as it would ‘ruin everything’ if she did.
In January 2013, the applicant, the complainant, her mother and her younger sister moved to Somerville. While living in Somerville, the applicant rubbed the complainant’s clitoris. This formed part of the original incest charge and will form part of the amended incest charge. He also made her touch his penis. This forms part of the indecent act charge.
The complainant estimated that this conduct occurred over 50 times, mainly at night and during school holidays when her mother was at work.
In September 2016, the applicant, the complainant, her mother and her younger sister moved into a house in Melton West which the applicant and the complainant’s mother had purchased. Between September 2016 and 31 January 2017, the applicant digitally penetrated the complainant’s vagina. This formed part of the original incest charge and will form part of the amended incest charge. As the applicant digitally penetrated the complainant’s vagina he would place her hand on his penis and on every third occasion, he would make her masturbate him. This forms part of the indecent act charge. The complainant also stated that during this period the applicant touched her breasts. This conduct is not the subject of any charge.
The complainant recalled that on Christmas Eve in either 2015 or 2016, she visited the applicant’s parents’ house in Melton for a family gathering. After dinner, the applicant and the complainant were alone in the lounge room when the applicant digitally penetrated her vagina and made her touch his penis. The digital penetration formed part of the original incest charge and will form part of the amended incest charge. The touching of the applicant’s penis forms part of the indecent act charge.
The complainant recalled another occasion while she was living at the Melton West house where the applicant kissed her and digitally penetrated her vagina. The act of penetration formed part of the original incest charge and will form part of the amended incest charge.
The complainant stated that she felt she could not get away from the applicant as he had ‘been in the navy for ages’ and was ‘really strong’.
In approximately December 2016, the complainant told her mother that the applicant had been touching her but did not elaborate. Following this discussion, the complainant’s mother confronted the applicant about his offending. He said that ‘it was an accident’, that ‘he didn’t mean to’ and that the complainant had ‘come onto him’.
The applicant offered to transfer all of his assets and the house in Melton West to the complainant’s mother if she did not report his offending to police. They entered into a financial agreement under which the applicant forfeited all of his assets and his interest in the house to the complainant’s mother. The following week, the complainant’s mother recorded a telephone conversation with the applicant in which he admitted what he had done and apologised for it.
The complainant’s mother subsequently reported the offending to police.
On 10 July 2017, police conducted an interview with the complainant during which she disclosed the details of the offending.
On 13 July 2017, the applicant was arrested and participated in a recorded interview during which he relevantly made the following statements:
(a)he did not know how his relationship with the complainant became sexual;
(b)the conduct started when the complainant was 11 years old and he found her attractive;
(c)he was not a predator and was trying to get the complainant to like him and accept him for her mother;
(d)he had touched the complainant’s vagina on two, three or maybe four occasions but had never penetrated her;
(e)the complainant had touched his penis when he touched her vagina but she had never masturbated him;
(f)the offending had occurred when the complainant’s mother was not in the house; and
(g)the offending had not occurred on 50 occasions.
The applicant’s personal circumstances
As we have already stated, the applicant was aged between 30 and 35 at the time of the offending. He was 36 at the time of sentencing.
The applicant was born in Melbourne and has two younger brothers. His parents operate a business. He had a normal childhood. At school he was an average student who did not experience bullying or abuse.
The applicant left school in Year 11 to commence an auto-electrical apprenticeship, which he did not complete.
In 2001, the applicant joined the Royal Australian Navy where he rose to the rank of boatswain’s mate. He served in Iraq and the Solomon Islands where he was awarded medals for his service. In 2004, he received a Commanding Officer’s Commendation for bravery for the rescue of persons in a vessel which hit rocks at Christmas Island and sank.
The applicant was involved in the interception of asylum seekers arriving by boat. On one occasion, he was required to fire upon an illegal fishing vessel, injuring its occupants. This caused him distress.
The applicant met his first wife while posted to HMAS Manoora. They married in 2004 and have two children. Their relationship broke down while the applicant was serving in Darwin, prior to the commencement of his relationship with the complainant’s mother in 2010.
The applicant does not have a criminal history.
The plea hearing
The trial was scheduled to commence on 30 April 2018 but was adjourned as the parties indicated that a plea was being contemplated. On 1 May 2018, the parties informed the Court that they were unable to agree on the frequency of the applicant’s offending.
The prosecution rejected the applicant’s guilty plea on the basis of his assertion that the offending happened four times. The prosecution was willing to accept the plea on the basis that the offending occurred on a regular basis during the charge period but without specifying the number of occasions.
The judge encouraged the parties to compromise. On 2 May 2018, the applicant accepted the prosecution’s position and pleaded guilty on that basis. He was sentenced for both charges on the basis that the occurrences ‘were numerous and regular, certainly more than four, over the charge period’.[4]
[4]Sentencing remarks [20].
A victim impact statement by the complainant was tendered on the plea. She stated that the offending stole her innocence and childhood and changed her from a happy child to someone who was always angry, trusted no one and engaged in self harm. She has constant nightmares and takes medication for a range of mental health problems. She cries all the time and feels worthless as a person.
Sentencing remarks
The judge described the applicant’s offending as ‘extremely serious’[5] and considered it to be in the ‘midrange’.[6] He described the applicant’s conduct as ‘brazen’ and ‘an egregious and contumacious breach of … trust’, and said that his moral culpability was high.[7] He referred to the complainant’s victim impact statement and said that the impact of the offending on her was ‘traumatic’.[8]
[5]Sentencing remarks [22].
[6]Sentencing remarks [30].
[7]Sentencing remarks [25].
[8]Sentencing remarks [22].
As to the timing and duration of the offending, the judge stated that the conduct took place ‘with regular frequency’ for ‘about five years from May 2011 to January 2017’.[9]
[9]Sentencing remarks [24]. As we have already explained, the correct period of the offending was from 15 February 2014 until 31 January 2017.
The judge had regard to the applicant’s guilty plea at the beginning of the trial, which he said ‘arrived late in the piece, but … once an acceptable way to deal with frequency was agreed, [the applicant] pleaded forthwith’.[10] He stated that the applicant’s plea had ‘more than the usual [utilitarian] benefit, because [it] saved not only the community the cost of a trial, but the victim further trauma of that criminal trial’.[11]
[10]Sentencing remarks [28].
[11]Sentencing remarks [28].
The judge accepted that the applicant showed some remorse. However, he considered that during the interview with police on 13 July 2017 the applicant attempted to minimise his offending rather than accept responsibility. At that time, according to the judge, the applicant placed responsibility for his offending with the complainant. The judge considered that the applicant showed regret, remorse and insight at the time of the plea, but not earlier.[12]
[12]Sentencing remarks [26].
The judge took into account the applicant’s personal circumstances, including his lack of prior convictions and previous good character. The judge considered the applicant’s record of service in the Royal Australian Navy to be a matter of significance in his favour. He also accepted that the applicant’s separation from his children was a difficult consequence for him.
The judge said that the applicant’s loss of position and standing within the military was a relevant extra-curial matter. However, he did not consider the applicant’s decision to forfeit his assets to the complaint’s mother to be a relevant sentencing consideration.
The judge considered that the applicant had ‘reasonably good’ prospects of rehabilitation which were enhanced by the support of his family, particularly his parents.[13]
[13]Sentencing remarks [33], [36].
The judge stated that general deterrence was ‘of paramount consideration’ as the Court must deter others from committing similar offences.[14] He also had regard to specific deterrence — but considered it to be of much lesser significance — as well as totality, parsimony and proportionality.
[14]Sentencing remarks [37].
Amendment of charge 1 on the indictment
As we have stated at [9] above, it was common ground that charge 1 on the indictment was bad in law and that it should be amended by this Court pursuant to s 165(1) of the CPA. This Court’s power to amend an indictment under that section was considered in Eade v The Queen[15] and Spiteri v The Queen.[16] We are satisfied that, consistent with those authorities, this is an appropriate case to exercise the power of amendment. Accordingly, charge 1 on the indictment will be amended to read as follows:
CHARGE 1: The Director of Public Prosecutions charges that [the applicant] at Cranbourne South and divers other places in Victoria between the 15th day of February 2014 and the 31st day of January 2017 took part in an act of sexual penetration with [the complainant] a person whom he knew to be his step-child in that he introduced his finger into the vagina of [the complainant].
Note: This is a course of conduct charge.
Statement of Offence: Incest contrary to s 44(1) of the Crimes Act 1958 as amended by the Crimes (Sexual Offences) Act 1991.
[15](2012) 35 VR 526, 532 [27]–[28].
[16][2018] VSCA 254, [13]–[17], [53]–[54], [64]–[66].
In our opinion, s 165(1) of the CPA does not authorise this Court to amend the indictment by adding a new charge under s 44(2) of the Crimes Act for the period from 1 May 2012 until 14 February 2014. That is because such an amendment would not satisfy the ‘without injustice to the accused’ requirement in s 165(1).
Should the proceeding be remitted to the County Court?
The applicant submitted that this Court should resentence the applicant rather than remitting the proceeding to the County Court for resentencing. He contended that a remittal would create a risk that the prosecution might seek leave to file over a new indictment which includes an additional charge under s 44(2) of the Crimes Act in respect of the period from 1 May 2012 until 14 February 2014. According to the applicant, such a new indictment might result in a higher sentence as he would be sentenced as a serious sexual offender in relation to that additional charge as well as the indecent act charge.[17] The applicant argued that, as the Crown was responsible for the error in charge 1 on the indictment, he should not be placed in a materially worse position as a result of that error being corrected.
[17]See pt 2A of the Sentencing Act 1991 and [78] below.
The Crown submitted that this Court should remit the matter to the County Court for resentencing. According to the Crown, such a course would enable the addition of a charge under s 44(2) of the Crimes Act so that the applicant could be sentenced for the entirety of the admitted offending for the period from 1 May 2012 until 31 January 2017. The Crown contended that such a course would not be unfair to the applicant. In response to questions from the Bench, the Crown accepted that, although the prosecution would submit to the sentencing judge that the new sentence should not exceed the sentence that was previously imposed, the sentencing judge would not be bound by such a submission.
In our opinion, it is in the interests of justice that the applicant be resentenced by this Court rather than the proceeding being remitted to the County Court. We have all the information we require to resentence the applicant and thus finalise the proceeding rather than prolong it by a remitter. Further, in circumstances where the error in the indictment was caused by the prosecution, the applicant should not be exposed to the risk of a higher sentence that would arise if the matter were remitted to the County Court.
Resentence
Parties’ submissions
The applicant conceded that his offending was serious. However, he submitted that offending for a period of 35 months in accordance with the amended indictment is less serious than offending for a period of 56 months in accordance with the original indictment. The shorter period was said to affect the gravity of the offending and his moral culpability as well as the impact on the complainant.
The applicant accepted that the uncharged acts in the period preceding 15 February 2014 could be taken into account as part of the context of the offending, and preclude him from relying on mitigating circumstances such as good character during that period. However, he contended that those acts could not be treated as an aggravating circumstance of the offending.
The applicant submitted that, although his plea of guilty was not entered prior to the commencement of the trial, there was a good reason for this, namely the dispute with the prosecution as to the frequency of the offending. He contended that he entered his plea promptly after that dispute was resolved. He argued that the Court should give significant weight to his plea, as it had the utilitarian benefit of avoiding a trial and indicated remorse. According to the applicant, he had expressed remorse not only at the time of the plea, but also at earlier points in time, including at the time of his conduct, in his discussions with the complainant and her mother and in the record of interview with police.
The applicant contended that the Court should take into account his background and professional achievements in the Royal Australian Navy, including the fact that many of his achievements occurred prior to the offending. He also contended that the Court should take into account the extra-curial punishment that he has suffered as a result of the offending, including the loss of his career and military standing, his inability to support and be involved in the lives of his children and his financial loss.
The applicant argued that factors such as his guilty plea, remorse and prior achievements diminish the need for specific deterrence and warrant greater weight being given to his rehabilitation.
The applicant referred to four recent authorities dealing with course of conduct charges for incest, namely McCray v The Queen,[18] Harmon v The Queen,[19] Director of Public Prosecutions v Aparo[20] and Crawford v The Queen.[21] He contended that, having regard to the sentences imposed in those cases, this Court should impose a sentence on charge 1 that is lower than the sentence of 7 years imposed by the judge. These cases are referred to further below.
[18][2017] VSCA 340 (‘McCray’).
[19][2017] VSCA 169 (‘Harmon’).
[20][2016] VCC 802 (‘Aparo’).
[21][2018] VSCA 113 (‘Crawford’).
The applicant did not cavil with the sentence of 2 years and the order for cumulation of 9 months in relation to charge 2.
The Crown submitted that this Court should impose the same sentences as those imposed by the judge.
In relation to charge 1, the Crown contended that the reduction in the period of the offending should not result in a lower sentence, as the reduced period was still substantial and the applicant’s conduct remained protracted and grave.
The Crown argued that the uncharged acts of incest in the period from 1 May 2012 until 14 February 2014, form part of the context of the offending and preclude the applicant from contending that he was of good character during that period.
According to the Crown, the applicant’s remorse was limited and the adverse reputational, career and financial consequences of the offending were not out of the ordinary for child sexual offenders.
The Crown argued that the authorities upon which the applicant relied did not support his contention that this Court should impose a lesser sentence than the sentence imposed by the judge.
Decision
In Crawford, this Court said the following about a course of conduct charge of incest:
Clause 4A of sch 1 to the [CPA] defines a ‘course of conduct charge’ as ‘a charge for a relevant offence that involves more than one incident of the offence’. Such a charge is particularly appropriate where the offending is so frequent that it is difficult for the complainant to give precise particulars of the number of incidents of the offence or the dates, times, places, circumstances or occasions of the incidents.
Section 5(2F) of the Sentencing Act 1991 provides that, in sentencing an offender for a course of conduct charge, the court:
(a)must impose a sentence that reflects the totality of the offending that constitutes the course of conduct; and
(b)must not impose a sentence that exceeds the maximum penalty prescribed for the offence if charged as a single offence.
In McCray, this Court said the following about this provision:
By force of s 5(2F)(a) of the Sentencing Act 1991, the judge was obliged to impose a sentence that reflected ‘the totality of the offending that constitute[d] the course of conduct’. The only constraint on his Honour’s discretion, apart from the principle of totality itself and the other usual sentencing principles applicable to the case, was that expressed in s 5(2F)(b), namely, that the sentence must not exceed the maximum of 25 years’ imprisonment.
…
Because the applicant was to be sentenced for multiple incidents of incest, albeit within the confines of a single maximum penalty, sentences imposed for single instances of incest could not provide any relevant guidance.
Otherwise, of course, orthodox sentencing principles apply. What is a just and appropriate sentence for a course of conduct sexual offence will be informed by the nature of the sexual acts, the frequency and persistence of the acts, the age and other personal circumstances of the victim, and the impact of the offending on the victim.
For the reasons given in McCray, sentences for individual offences of incest do not provide any assistance in determining whether a sentence for a course of conduct charge of incest is manifestly excessive. That is particularly so if the sentence for an individual offence was imposed prior to Director of Public Prosecutions v Dalgliesh, in which this Court stated that current sentencing practices for incest offences in the mid-range of seriousness were disproportionately low and needed to be increased.[22]
[22][2018] VSCA 113 [64]–[68] (citations omitted).
Having regard to the above principles, the offending in the present case can only be described as a serious instance of a course of conduct charge of incest. The offending was prolonged and persistent, occurring regularly over a period of 35 months. The offending involved a gross breach of trust and exploitation of parental authority by the applicant in relation to his young and vulnerable step-daughter. He sought to conceal and maintain the offending by telling the complainant not to tell her mother as it would ‘ruin everything’ if she did.
The gravity of the offending and the applicant’s moral culpability were high. As this Court has repeatedly said, incest involving an adult and a child is an inherently violent crime and harm to the victim will be presumed.[23] The complainant’s victim impact statement indicates that the impact of the offending in the present case was profound.
[23]DPP v Dalgliesh [2016] VSCA 148 [46]–[47].
The gravity of the applicant’s offending and his moral culpability would have been greater if the charge period extended from 1 May 2012 until 31 January 2017 instead of from 15 February 2014 until 31 January 2017. As a matter of common sense, regular offending over a period of 56 months is more serious than regular offending over a period of 35 months. We consider that the sentence to be imposed on the applicant for the period of the offending should be somewhat lower than the sentence that would have been imposed if he had offended over a period of 56 months. That is so notwithstanding that the uncharged acts of incest for the earlier period can be taken into account as part of the context of the offending.
The applicant is entitled to moderation of his sentence due to his guilty plea. This was entered promptly after the details of the incest charge were agreed. It had a significant utilitarian benefit and spared the complainant from having to give evidence.
Although the applicant’s remorse was qualified in nature at the time of the record of interview, we are satisfied that it was genuine and unqualified at the time of the plea. This is an important sentencing consideration, as are the applicant’s insight, acceptance of responsibility, parental support and good prospects of rehabilitation.
We have given some weight to the hardship the applicant will suffer as a result of being separated from his children. We have also taken into account his good character prior to April 2011, including his distinguished service in the Royal Australian Navy. However, we have not given any weight to the adverse reputational, career and financial consequences of the offending, as they are not unique to the applicant and were brought about through his own conduct.
The applicant falls to be sentenced as a person without any prior convictions. However, the absence of prior convictions must be seen in the context of the prior uncharged acts.
We agree with the applicant that specific deterrence is not a significant sentencing consideration in the present case. However, general deterrence and denunciation are of paramount importance.
We have taken into account current sentencing practices as informed by McCray, Harmon, Aparo and Crawford.
Crawford involved a course of conduct charge of incest and other charges against the offender who abused his step-daughter. The incest offence was committed in the period from 13 June 2008 until 24 April 2010 when the complainant was aged between 12 and 13 years and the applicant was aged between 35 and 37. The offender regularly penetrated the victim’s vagina with his penis and told her ‘not to tell anyone or Daddy will get into trouble’. He bribed her with soft drink or chocolate to engage in sexual activity with him. The offender was sentenced to 8 years’ imprisonment for the incest charge. The Court held that that sentence was not manifestly excessive, describing it as ‘moderate’.[24] In reaching this conclusion, the Court considered McCray, Harmon and Aparo and compared those cases with the case before it in the following terms:
[S]ome assistance in determining whether the sentence of 8 years’ imprisonment for charge 1 is manifestly excessive can be derived from other sentences imposed for course of conduct offences of incest. In McCray, the offender inserted his fingers in his eight-year-old biological daughter’s vagina while she pretended to sleep, doing so on numerous occasions over a period of nearly two years. This Court refused his application for leave to appeal against his sentence of 5 years’ imprisonment for a course of conduct charge of incest. The offending in the present case was more frequent — occurring regularly for approximately 22 months — and involved bribery and psychological coercion.
In Harmon, this Court refused leave to appeal against a sentence of 7 years’ imprisonment for a course of conduct charge of incest. The offending involved 32 occasions of penile-vaginal penetration of the offender’s 15-year-old biological daughter.
In Aparo, the offender pleaded guilty to three course of conduct charges of incest. The charges involved different forms of sexual penetration (anal, oral and vaginal) of the offender’s stepdaughter in the period from 1 July 2002 until 22 July 2015. The offending occurred three or four times each week and caused pain to the victim. The offender threatened to financially ruin the victim’s ill mother if the victim disclosed the offending. He also told her repeatedly that her family hated her. There was a break in the offending between November 2010 and October 2014. Judge Gucciardo sentenced the offender to 8 years’ imprisonment on each of the course of conduct charges.[25]
[24]Crawford [2018] VSCA 113 [63], [76].
[25]Crawford [2018] VSCA 113 [69]–[71] (citations omitted).
In common with McCray, Aparo and Crawford, the offending in the present case persisted for a lengthy period. The applicant’s exhortation to the complainant not to tell her mother because this would ‘ruin everything’ involved an element of psychological manipulation. The complainant’s statement that she felt that she could not ‘get away’ from the applicant because he was ‘really strong’ highlights the power he held over her and her sense of helplessness.
In all the circumstances, the applicant will be resentenced as follows:
Charge Offence Maximum Sentence Cumulation 1 Incest 25 years 6 years Base 2 Indecent act with a child under the age of 16 10 years 2 years 9 months Total Effective Sentence: 6 years and 9 months’ imprisonment Non-Parole Period: 4 years and 9 months
It will be noted in the records of the Court that, in relation to charge 2, the applicant has been sentenced as a serious sexual offender. In accordance with s 6D of the Sentencing Act 1991, we have had regard to the protection of the community from the applicant as the principal purpose of sentencing him but have not imposed a disproportionate sentence. We have ‘otherwise directed’ for the purposes of s 6E of that Act, that is, we have not directed that the entirety of the sentence for charge 2 be served cumulatively.
Pursuant to s 6AAA of the Sentencing Act a declaration will be made that, but for the applicant’s plea of guilty, we would have sentenced him to a total effective sentence of 8 years and 6 months’ imprisonment with a non-parole period of 6 years and 6 months.
A declaration will also be made that the applicant must continue to comply with the reporting obligations imposed by pt 3 of the Sex Offenders Registration Act.
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